Fagu Shaw, Etc., E.Tc. v. the State of West Bengal

Judgment

ORIGINAL JURISDICTION : Writ Petition Nos. 41, 106 etc. etc. of 1973. Ulider Art. 32 of the Constitution for issue of a writ in the nature of habetm corpus. R. K. Maheshwari, for the petitioner (in W.P. 41). ·SUPREME CO\!ll.T REPOl.TS. .(1974] 2 S.C.R. A. K. Gupta, for the pl'titioner (inW.P. Ne:". 106 & U3l. M. S. Gupta, for the petitioner (in W.P. Nos. 441 & 214). T. S. Arora, for the petitioner (in W.P. 621). N}re11 De, .Au.orney General of India and D. N. Mukherjee, for the resp0nd.ent (in W.P. 106). Dilip Sinha, for the re.j1p0ndents (in W.P. Nos. 113, & 441). M. M. Kshatriya, for the respondents (in W.P .. 214). P. K. Chatterjee and G. S. Chatterjee, for the respondent· (in W.P. 40. Niren De, Attorney Generdl of' India and R. N. Sachthey, ·for Attorney General of India. Ramamurthy, for intervener No. 1 and for intervener No. 2. The J \ldgmerit of Ray CJ, Mathew & Chandrachud JJ. was delivered by Mathew J. Alagiriswami, J. and Bhagwati, J. gave partly dissenting Opinions.

MATHEW, J. In these writ petitions filed under article 32 of the Constitution, the petitioners question the legality of their detenti0n and pray for issue of writs in. the nature of habeas corpus, These petitions raise a common constitutional question, namely, whether Parliament is bound to prescribe the maximum period of detention under article 22(7)(b) of the Constitution in order that the proviso to article. 22('1l(e) might operate, and, whether, bys. 13 of the Maintenance of Intemal Security Act, 1971. (Act 26 of 1971), hereinafter referred to as the Act, after it was amended by s. 6( d) of the Defence of India Act, 1971, the Parliament has prescribed the "maximum period".

The orders passed by the Government of West Bengal under s.12 ( 1) of the Act in these cases provide that the Governor is pleased to confirm the orders of detention and to continue the detenuon of the detenues till the .expiration of 12 months from the dates of their detention or until•the expiry of the Defence of India Act, 1971, whichever is later. The material part of s. 13 of the Act as it originally stood ran as follows : "The maximum period for which any person may be detained in· pursuance of any detention order which has been confirmed under s. 12 shall be twelve months from the date of detention." After it was. amended by s. 6(d) of the Defence of India Act, 1971, the material part of s. 13 of the Act reads : "The maximum period for which any person may be detained i~ pursuance of any detention order which has been confirmed under s. 12 shall be twelve months from the date At of detention· or uritit the exj)iry of the Defence of India Act, 1971, whichever is later/'

The Defence of India Act, J 971, came into force on December 4, 1971. Section I ( 3) of that Act provides that the ~ct shall come into force at once and shall remaiii in force during the period of operation of the Proclamation of Emerge11cy and for a period of six months thereafter. Section 2 {g) of that Act defules "Proclamation of Emerg\)ncy" as !lie proclamation issued under clause (l) of article 352 of the Constitution on the 3rd day of December, 1971. The President issued the Proclamation of Emergency under article 352 of the Constitution on December 3, 1971. Article 22 ( 4) (a) of the Constitution sa~ that no Jaw providing for preventive detention shall authorize the detention of a person for a period longer then three months unless an Advisory Board has reported before the expiry of three months that there is in its opinion sufficient cause for such detention.

The proviso to the article provides that nothing in sub-clause (a) shall autborii.e the detention of any person "beyond the maximum period prescribed by any law made by Parliament under sub-clause (bl of clause (7)" of article 22. By reason of article 22(4)(b), a person can be detained for a longer period than three months without the nece•sity of consulting an Advisory Board if "such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (al and (b) of clause (7)" of article 22. And, arti~le 22(7) sli~ : " ( 7) Parliament may by law prescribe- ·(a) the circumstances under which, and the c1ass or classes of cases in which, a person may be · detained for a period longer than three months under any law providing fOr preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub· clause (a) of clause (4J;

(b) the maximum period for which any person may in any. class or classes of cases be detained under any law providing for preventive detention; and (cl the procedure to be followed by an Advisory Board in a11 inquiry under sub-clause (a) of clause (4)." Tlie contentions of the petitioners were that the Parliameht was bound to pre&::ribe the maximum period of ~tention under article 22(7) (b) of the Constitution in order that the proviso to .article 22(4) (a) might operate and, as s. i3 of the Act as amended did not prescribe "the maximum period" of .retention, the confirmation of the detention orderi; in terms of s. 13 of the Act was bad. The learned ~. ttorniey General, who appeared for the resportdent in these petitions, submitted that in s. 13 of the Act the Parliament has prescribed "the maximum period" of detention.

And. in the alter- -SIJP_REME ,COURT REPORTS native, he s_aid that the Parliament was not bound to presi:ribe the maximum period of detention for the proviso to article. 22( 4J (a) to operate. In.A. K. Gopalan v. The'State of Madras(i) Kania, C. J. said that ar.ticle -22(7) (b) is permi~sivc, it being not obligatory on Parliament to prescribe the maximum period and that if this construction resulted in a Parliamentary law enabling the detention_of a person for an indefinite 'period without trial, that unfortunate consequence is the result of the words of article 22(7) itself and that the Court could do nothing about it. In Krishnan v. The State of Madras('>, s.11 of the Preventive Detention (Amendment)

Act, 1951, was impugned as violative of article 22(4)(a) on the ground thats.- If did not fix a maximum period of detention but on the contrary, empowered the Government in express terms to order that the detenu was to continue in detention for such period as it thought fit. '!be Court, by a majority, held that s.11 was not invalid on the ground that it did not fix the maximum period of detention inasmuch as the Act was to be in force only for a perio4 of ·one year and no .;,,tention nnder that Act could be continued after the expiry of the Act. Mahajan, J. pointed out that the point was concluded by the decision in Gopalan's case(1) where Kania, C.J. had obsel"Ved that it was not .obligatory on Parliament tO prescribe any maximum period.

On the other hand, B.>se, J. who wrote a dissenting judgment, held that though it was not obligatory on Parliament to fix the maximum period of detention under article 22(7l(b), if it wanted to detain a person for a periQd lon£er than three months, it could only do so by providing in the Act the maximum period of detention. In the State 'of West Bengal v. A.shok Dey and Others(') the central issue was whether a State Legislature has power to pass a Jaw providing for preventive detention of a person for a period Jooger than three months even after obtaining the opinion of an Advisory Board that there was sufficient cause for detention, unless the Parliament· has prescribed the maximum period of detention under article 22(7)(bJ. The contention was that there was no such power.

The Court negatived the contention and said that article 22e1) is couched i11I a permissive way, that there is nothing mandatory. aqout it and that the majority decision in Krishnan's case(') following the observation of Kania, C.J. in Gopa/an's case(' J was binding on the Court. The Court also said that under entry 3 of list III of the Seventh Schedule, both Parliament and State legislatures have concurrent power to make laws in respect of ''prevent_ive detention for reasons connected with the security of a State, the maintenance of public order, or the matntenance of supplies and services essential to the community; persons subject to such detention", and that as the State legislatures have plenary power to make law providing for preventive detention within the limitations imposed by the Constitution, the power must necessarily extend to all -··--(tYTi9i6f"s:c:R::-s8~- (2) [195t) S.C-R. 621 (3) [1972] 1 s.c.c. 199. FAGU SHAW v. WBST BENGAL (Mathew, /.) matters incidental to preventive detention ~s contemplated by this entry subject only to the condition that the law made by the State should not come into· conflict with a law made by Parliament with respe<;t to the same matter.

The Court came to 'the conclusion that there was no limitation on the power of a State legislature to make a law providing for deteniion for a period beyond three months for the reason that Parliament has not made a· law prescribing the maximum period of detention under article 22(7) (bl. Great reliance was placed by the petitioners on the reasonina; con• tained in the dissenting judgment of Bose, J. in Krishnan's case(supra) for the proposition that the fixation by Jaw of the maximum period of detention is obligatory upon Parliament in order that the proviso lo article 22 (14> (a) may operate. According to Bose, J ., a law providing for detention of " person beyond a period of three months must satisfy either clause ( 4 Ha) or clause· (4l(b) of article 22. The leai;ned judge was not, however, 11repared to read the word 'may' in clause ( 7) of article 22 as meaning must' as that would chao,ge the usual meaning of the word.

He was of the view that Parliament is free to prescribe or not to prescribe the maximum period of detention under article 22(7)(b) and thaf neither Parliament nor S\ate legislature can be compelled to pass a Jaw autho· rising preventive detention beyond three months but, if, however, either wishes to do so, then it is bowld to conform to the provisions of either sub-<:).ause (It) or (bl of article 22( 4) or both, and that, in the case of sub-clause (a), the proviso is as much' a ~ of the sub-clause as its main provision. The learned judge then. said that if no maximum limit is prescribed under sub-clause (bl of article 22(7), the provis9 to article 22(4)(a) cannot operate, and, if it cannot operate, no legislative action can be taken under clause ( 4 )(a), and rell>rted to reasoning from analogies to fortify his conclusion. Ile observed :

"If A is told byB that he msy go to a bank and withdraw a ~um of money not exceeding such limit as may be fixed by C, it is evident that until C fixes the limit no money can .be withdrawq. Eqnally, if A is told that II he may withdraw money not exceeding a limit which he himself may fix, there can, in .mY opinion, be no right of withdrawal until he fixes the limit". He concluded his judgment by saying that tlio majority judgment abounted to the COl)lltitution telling all J>Crsons resident in the l!'Jl~ that "tho~gh .w~ au!horiee Parliament to prescribe a maximum llllllt !>f' detention if It SO chooses, We -p)8ce DO comeuJsion on it to do so and we ailtho;ise it ~o pass legislation which will empower any person or authority Parliament chooses to name, right down to a police oonst~ble, to arrest Y?ll w*1 detain. you as long as he pleases, for the dllration of your life if. he wants, so that you may lirtger and rot in jail till you i:lie; as did men in. the Bastille".

We think the analogies 'which the learned jWige referred to are. In. fact, Dlisleading and his reasonings from themnot c~nclng. Under entry 3 cit List III of the Seventh Schedule, both Parliament and _S!ale le~slatures )lave p~enary po~r .lei P.1188 .laws for preventive detention as respects the subiects mentioned therem. As ancillary to 840' that. power, or, as an inseparable part of it Parliament aDd State legislatures have power to fix the period of detention also. One cannot imagine a power to pass a law for detention unlcls that power carries with it the incidental power to provide for the period of such detention. Therefore, both Parliament and State iegis!atures ,have power under the entry to provide. for detention of a person for a specified period. 'The purpose of article 22 ( 4)

(a) is to put a curb on that power by providing that no Jaw shall authorize the deten,tio0_of a person for a period exceeding three months unless an Advisory Board has reported within the period of three months that there is sufficient cause for detention. And, what the proviso means is that even if the Advisory Board has reported before the expiration of three months that there is sufficient cause for detention, the period of detention beyond three months shall not exce_ed the maximum period that might be fixed by any law made by Parliament under article 22(7)(b). 'fhe proviso catinot mean that even if Parliament does not pass a law fixing the maximum period under article 22(7)(b), the State legislatures, for example, cannot pass a law which provides for detention of a person beyond three months.

The period of such detention, viz., detention beyond the period of three months, would then be a matter within the plenary power of Parliament or State legis:"tures, as the case may be, as such a power is incidental to the power to pass. a Jaw with respect to the topics covered by entry 3 of List III. It is therefore clear that, but for the pruviso to clause (4)(a) of article 22, the Act, as it provides for the opinion of the Advisory Board, can authorize detention of a person for any period, by virtue • of the plenary charac"ter of the legislative power cenferred by the entry. . Whether such a Jaw is liable to be stru~k down_ on the ground that it imposes unreasonable restrictions upon the fundamental rights under article lY is an altogether different question. The proviso says in effect that if Parliament fixes the maximum period under article 22(7) .

(bl, the power of Parliament and State legislatur~ to fix the period of . _ detention in a Jaw passed under the entry would be curtailed to that --~J~xtent. Seeing, therefore, that the power to pass a Jaw prc>Viding for deten- ·' tion cif a person after obtaining the opinion of the Advisory Board focludes the power to fix any reasonable tieriod beyond three months by virtue of the plenary character of the legislativ~ POWer conferee~ by the . entry, the proper analogy would be : A has authority from B to draw any amount from a bank but he is told that if C fixes a limit upon that authority, then he can only draw the amount as fixed by C: in such a case. if C does not fix the amount. the power of A to draw is plenary. Or. if A is told that he mav withdraw monev not exceeding ii limit which he himself may fix. A bas power to draw any amount, nay, the whole amount in the Bank, if only he fixes the limit at that amount.

The condition-precedent, namely, the fixation of the amount bv A in such a case, would be wholly illusory, for whatever he chooses to draw would be the limit of his authority. To put it differently, as Parliament and State legislatures have power under the entry to pass a law enabling the detention of a person for a period longer than three J FAGO SHAW v. WEST BENGAL. (Mathew, /.) months in case . the law provides. fdr' the opinion of the Advisory Boaid, th.ere could be no· limit to that period, except in the context of . its reasonai>Jeness; as-the power to fix the . period of detention · is inci\lental io the plenary power to legislate on the topic of preventive detention. • The proviso merely enables Parliament· to put a curb on that power by preScribing the inaitimum period of detention under article 22(7)(b); The proviso does· not, proprio vigore, compel the Parliament to· fix the· maximum period: Nor does article 22 ( 7). On the other hand, it expressly says otherwise.

Whence ·then arises the · obligation· of Parliament to· fix the maximum· -period under article 22(7) (b) ? . We see' no provision which eitlwr ~xpressly or by nece~­ sary implication compels Parliament· to do so. Personal liberty· 1s a cherished freedom, more cherished perhaps· than all other freedoms, and we are deeply concerned that no man may linger and rot in de¢ntion. As jl!dges and citiuno, personal liberty is as dear to us as to anyone else and . we may respectfully venture to make the same assumption in regard to those jajges who were parties to the decisions in GopaXin's case(l), Krishnalts case(') and Ashok Dey's c<!Se('). But the problem here is one of dispassionate interpretatiot1 of the artide in question and we cannot import an obligation that Parlia· D . ment "shall" by law prescribe the maximum period of detention. Such an obligation could only arise from an invisible radiation proceeding from a vague and speculative concept of. person'al liberty.

The language' of article· 22(4(b) is . in. marked contrast .with that of article 22(4)(a) read with the proviso. Article 22(4)(b) makes it obligatory upon Parliament, if it wants to pass a Jaw for d~taining a person for a period of more than three months without making a provision in that law for ob!aining the opinion of an Advisory Board within 1hree months; to comply with sub-clauses . (al and (b) of article 22 ( 7), We, therefore, see no sufficient reason for departing from the view taken in the decisions of this Court referred to earlier as regards the power of Parliament under article 22 ( 7 )(b) . The question Whether, when Parliament passes a law under arii<'1. 22(7)(b) fixing the maximum period of detention in any'class of cases, it is exercising an 'independent power. of fixing ,the maximum period .of detention derived from clause (7) of article 22 or a power traceable to the entries on the subject of preventive detention, does not arise for consideration here.

U .the exercise of the power nnder artide 22(7) is independent . of the power conferred by th_e entries relating to preventive detention, the question wbether a law passed by virtue of any of the entries ·fixing a period of deten. tion in excess of ·the maximum period fixed l>y a law passed und~ article 22(7)(b) would, sub-silmtio repeal the provision in reJ(lU"d to · the maxim Um period in the law passed under. article 22 ( 7), and make that period "the maximum period" for the purpose of article 22(7)(b) _.does, not also strictly arise for consideration. But this much we think is certain, namely, that the prescription of a 'maximum period' by a law made under article 22 ( 7) (b) bas no particlilar sanctity so far as parliament is concerned, as it colild pass a law for detention ,the '(I) . [1950] S.C.R. 88. (2) [i951] S.C.R. 621. (3) [1972] I S.C.C. 1_99. 84'2 [197 4]

2 s.c.R. next day providing for a higher 'maximum period' and justify that law as a law passed both under th.e relevant en.try relating to. preventive detention and undet article 22(7) (b). To put it differently, the view !hat the piescriptiqn of the ·maximum period under ar,ticle 22(7)(b) is ~ guarantee that the Parliament cannot pass a law providing for longer period of detention than the maximum period fui:ed under article 22(7) (b) has no solid foundatiqn, as the law of detention fixing the longer period would sub silentio repeal the law under article 22.(7)(b) fixing the .'maximum period'. As Parliament has power to repeal a law fixing ,the maximum period under article 22(7)(b), the longer period fixed under the later law of detention would become the maximum period. Detention without trial is a serious matter. It is only natural that it should conjure up lurid pictures of men pining in Bastille. But malignant diseases call for drastic remedies.

And it was this realization that made the Constitutiou-makers-all lovers of liberty-to recon. die themselves to the idea of detention without trial. Even if it is granted that Parliament is bound to fix the maximum period of detention, as we said, such a fixation cannot be immutable. what then is the great guarantee of personal liberty in the fixation of ·the maximum period of detention by Parliament, if that fixation .can fluctuate with the mood of Parliament? The learned Attorney General contended in the alternative i:hat ·if s. 13 as amended is regarded as fixing the maximum period of -detention under article 22(7)(b), it c;loes not suffer from any infirmity -0n the score that the period fixed is indefinite as contended by the petitioners.

The petitioners had contended that the expression "the maximum period" occurring in article 22(7)(b) connotes a definite period .-eckoned in terms of years,_ months or days and that no period can be said to be a maximum period unless it is possible to predicate its beginning and end in term~ of years, months or days. In other words, .the argument was that since the determination of the period of detenr tion; namely, the expiry of the Defence of India Act, 1971, is dependent upon t!:ie revocation of the Proclamation of Emergency, the period fixed in s. 13 is not "the maximum period" as visualized by article 22(7)(b). The meaning of the word 'maximum' is, "the' highest attainable magnitude or quantity (of some thing), a superior limit" (Shorter Oxford Dictionary, p.1221, (1953), 3rd ed.) .. The meaning of the word 'period' is " A course or extent of time; · Time of duration" (Shorter Oxford Dictionary, p. 1474).

Therefore, the .words "maximum period" mean the highest or greatest course or extent or stretch of time. Tlie highest or greatest course or extent or stretch of time may be measured in terms of years, months. or days, as well as in terms of the occurrence of an event or the continuous of a state of affairs. In Juggilal Kamlapat v. Collector, Bombay( 1), the High Court of Bombay was conc.erned with the question whether a requisition (I) A.I.R. 1946 Bombay 280. J FAGU SHAW v. WEST BENGAL (Mathew, /.) order which stated that the requisition of the immovable property in . question was to continue during the period of "the present war and six months thereafter" was vague and indefinite. Bliagwati, J. said :

"The period of the present war through indefinite in duration was definite in itself in so far as the petitioners were given in as clear terms as it could be an indication of the period for which their property was sought to be requisitioned by respondent I viz., the duration of the present war. The user of this term was as definite as the user of the expression "the life time of A" which is used when settling or bequeathing a remainder in favour of B. B could not be heard to say that the life time of A which was the period prescribed as the one which was to come to an end before the remainder would vest in possession in his favour was a term which was vague or indefinite. It was as clear and definite as it could be, having regard to the fact that the period of the life time of an individual is indeterminate, though that life is of necessity going to come to an end some time or other".

We do not think it necessary that Parliament should have fued a period in terms of years, months or days in order that it might be "the maximum period" for the purpose of article 22(7) (b). Seeing that the object of the law of preventive detention is to prevent persons from acting in a manner preiudicial to the maintenance of internal security, · o.r of public order, or of supplies and services essential to the community or other objects specified in entry 9 of List I of the Seventh Schedule, we see great force in the contention of the learned Attorney General that "the maximum period" in article 22(7) (b) can be fixed with reference to the duration of an emergency.

In other words, as the object of preventive detention is to prevent persons from acting in a manner prejudicial to the maintenance of· internal security, -public order or supplies of services essential to the community or other objects specified in entry 9 of List I, the power to detain must be adequate in point of duration to achieve the object. Arid, how can the power be adequate in point of duration, if it is insufficient to cope with an emergency created by war or public disorder or shortage of supplies essential to the community, the duration of which might be incapable of being predicted in terms of years, months or days even by those gifted with great prophetic vision ? If 'the maximum period" can be fixed only in terms of years, months or days. certainly it would have been open to Parliament to fix a long period in s. 13 and justify it as "the maximum period".

It would be straining the gnat and swallowing the camel if anybody is shocked by the fixation of the maximum period of detention with reference to the duration of an emergency but could stomach with complacency the fixation of maximum period, say, at fifteen or twenty years. Whether the fixation of a "maximum period" in terms of years or in terms of events is reasonable in a particular circumstance is a totally different matter. It was argued on behalf of one of the interveners on the basis of the decision of this Court in B. Shama Rao v. The Union Territory [1974i 2 s.c.R. of Pondicherry(t) that the Parliament has abdicated ·its power and duty to fix maximum period to the executive as the determination of the duration of the Proclamation of the Emergency is 11 matter within the discretion of the President and he is, therefore, the authority t<J. determine the retirement l\ge of the Defence ~f India Act:

We do not think 'that the Parliament, in fixing the duration of the ·maximum period of detention withl reference to an event like the cessation of the period of eme•gency, bas, in any way1, abdicated its power or function to fix the maximum period or delegated it to the President. There can be no doubt that it is Parliament that has fixed the maximum period ins. 13 of the Act. The only qu~tion is whether, because the duration of the period is dependent upon the volition of the President, it ceases to be "the maximum period". We cannot presume that the President will act unreasonably and continue the Proclamation of Emergency even after the emergency has ceased to exist. The petition~rs argued that s. 13 of the Act 1s bad for the reason that it is violative of their fundamental right under article 19 of the Constitution. This challenge is not open to them as it is precluded by the Proclamation of Emergency. Although it was argued thats.

13 of the Act is violative of article 14 of the Constitution for the reason that it has conferred unlimited discretion on the detaining authority to fix the period of detenti9n, we do not think that there is any substance in. that contention. The authorit}' which passes the initial order of detention is not expected to fix the period-of detention [see · Krishnan's case(supra) ), nay, it may be illegal if it were to do so. Nor is the Government bound, when confirming the order of detention, unde~ s.12(1) of the Act, to fix the period of detention [see Suna Ullah v. State of I N K(2). Even if a period is fixed in confirming the detention order under s. 12(1), the period can be revoked or modified (see s. 13). The maximum period of detention has been fixed by s. 13 and the discretion to fix the duration within the maxic mum has been given to the Governtnent after considering all the relevant circumstances. Seeing that the maximum period of detention has been fixed by s.

13 and that the discretion to fix the period of detention in a particular case has to be exercised after taking into account a number of imponderable circumstances, we do not think that there is any substance in the argument that the power of Government to determine the period of detention is discriminatory or arbitrary. In the result, we overrule the contention of the petitioners and direct the writ petitions to be listed for disposal. ALAGIRISWAMI, J. I have .read the judgment of our learned brother Mathew, J. and with respect I differ from him on the question whether it is obligatory on Parliament to fix the maximum period of detention. I shall analyse the relevant provisions later but I shall first deal with three decisions which have dealt with this question; (I) [1967} 2 S.C.R. 6SO. (2) A.I.R. 1972 S.C. 2431. PAGU SHAH v. WEST BENGAL (Alagiriswami, J.) In A. K. Gopa/an v. The Stale of Madras(') the six learn.ed Judges comprising the Bench delivered separate judgments. Kania C. J. was the only Judge who dealt with this point in these words :

"It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of sub-clause (7) itself and the Court cannot help in the matter." 0 It would be notices that there is no discussion at all hece as to whether the learned Chief Justice came to the conclusion that the contention was correct or not or how it springs out of the words of subclause (7) that it was not obligatory on Parliament to prescribe any maximum period. In the next case of S. Krishnan v. The State of Madras(') Patanjali Sastri, · J. with whom Kania, C.J. agreed, did not deal with this question at all. Mahajan, J., with whom S. R. Das, J. agreed substantially on the grounds stated by Mahajan, J. did, of course, deal with this question in these words :

"The next point canvassed before us was that the Constitution does not envisage detention for an indefinite period and that it is obligatory oil Parliament to provide a maximum period for detention of a person under a law of preventive detention. In my opinion, this argument again is not sound. Emphasis was laid on the proviso to article 22(4) (a) which enacts that nothing in the sub-<:Jause shall authoriZe the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause(b)of clause (7),and it was urged that the word "may" in article 22(7) must be read in the sense of 1'must" and as haVing a com~ pulsory force inasmuch as the enactment authorizes Parliament to prescribe by law a maximum period for detention, for the advancement of justice and for public good, or for the benefit of persons subjected to preven\ive detention. Reference was made to Maxwell on "Interpretation of the Statutes"

(9th End., page· 246) and to the well-known case of Julius v. Bishop of Oxford(') Lord Cairns in that case observed as follows :- "Where a power is deposited with a public officer for the purpose of being used for the benefit of persons that power ought to be exercised." In my opinion, clause (7) of article 22, as. already pointed out, in its true concept to a certain degree restricts the measure of the fundamental right contained in clause ( 4 ){a) and in this context the rule referred to by Maxwell has no application whatever. Moreover, the provision in the Constitution is merely an enabling one and it is well settled (I) [1950] S.C.R. 88. (2) [1951] S.C.R. 621. (3) 5 App. cas. 214. that in an enabling Act words of a permissive nature cannot be given a compulsory meaning.· (Vide Craies on Statute Law, p. 254). Be that as it may, the point is no longer open as it has been concluded by the majority decision in Gopalan's case. The learned Chief Justice at p. 119 of the report observed as follows :- "Sub-clause (b) is permissive.

It is not obligatory on the Parliament to prescribe any maximum period. It was argued that. this gives the Parliament a right to allow a person to be detained indefinitely. If .that construction is correct, it springs out of the words of subclause (7) itself and the court cannot help in the matter. 1 Nothing said by Mr. Nambiar is sufficient to persuade me to take a different view of the matter than was taken in Gopalan's case. It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing fur. ther can be done under them.

The detention of the petitioners therefore is bound to come to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under this law." It would be noticed that while he did discuss this question he thought that the point was concluded by the decision in Gopalan' s pase. As I have pointed out earlier that was not a majority decision but only a passing observation by Kania, C.J. Both these cases mainly proceed on the basis that the Act itself being a temporary Act to be in force for a year the question of maximum period did not arise for serious consideration. Bose, J. however was of the view that it was obligatory on Parliament to fix the maximum period of detention. In the latest case of State of West Bengal v. Ashok Dey('), which was a judgment by four learned Judges, Dua, J. speaking for the Court said:

"Now, the argument raised in the High Court and accepted by it and repeated before us by Shri S. N. Chatterji on behalf of the respondents is that caluse (7) (b) of Article 22 makes it obligatory for the Parliament to prescribe by law the maximum period for which a person may be detained as also the procedure to be followed by the Advisory Board in holding the enquiry under clause (4) (a) of this Article. According to the submission, in the absence of such a law by Parliament no order of detention can authorise detention of any person for a period longer than three months and at the (!) [1972] (!) s.c.c. 199. FAGU SHAW v. WEST BENGAL (Algiriswami, J.) 84 7 expiry of three months all persons detained under the Act must be released. We are unable to accept this construction of clause (7) of Article 22.

It is noteworthy that Shri Chatterji, learned counsel for the respondents, expressly conceded betore us that Article 22(7) is only an enabling or a permissive provision and it does not impose a mandatory obligation on the Parliament to make a law prescribing the circumstances under which a perso11 may be detained for inore than three months as stated thereiit. But according to him sub-clause (b) and (c) of clause (7). do contain a mandate to the Parliament which is obligatory. In otfr view, clause (7) of this Article on its plain reading merely authorises or enables the Parliament to make a law prescribing (i) the circumstances under which a person may· be detained for a· period longer than three months, (ii) the maximum period for which a person may io any class or classes of cases be detained under any law providing for preventive detention, and (iii) the procedure to be followed by the Advisory Board in an enquiry under clause (4) (a) of this Article.

The respondents' contention that "may" in the opening part of this Article must be read as. "shall" in respect of sub-clauses (b) and (c) though it. retains its normal permissive character in so far as clause (a) is concerned, io the absence of special compelling reasons can be supported neither on principle nor by precedent of which we are aware. On the other hand this Court has in S. Krishnan v. State of Madras agreeing with the observations of Kania, C.J. in Gopalan v. State of Madras held sub-clause (\>) of clause (7) to be permissive. This opinion is not only binding on us but we are also in respectful agreement with it." This decision does directly deal with the point but not by detailed analysis of the relevant provisions as done by Mathew, J. and BhagwatJ, J. and as I have tried to do later on.

The decision, however, was mainly concerned with the power of the State Legislature to make a law with regard to preventive deten.tion and the whole approach is coloured by this consideration rather than the question whether the prescription of the maximum is obligatory. The power of Parliament to legislate with regard to preventive detention arises under Entry 9, List 1 of the Seventh Schedule as well as Entry 3, List 3 of the Seventh Schedule. The State Legislature has the power to legislate with regard to preventive detention under Entry 3 in List 3 of the Seventh Schedule. This, of course, is subject to the provisions of Article 254(2) of the .Constitution. Article 22 is found m Part III of the Constitution regarding fundamental rights. According to Article 13(2) the State shall not make any Jaw which takes away or abridges the rights conferred by that Part. Therefore.

Article 22 is an article restricting the powers of Parliament and State Legislatures io regard to preventive detention in the manner laid down therein. Of the learned Judges who dealt with Gopalan's case, Kania, CJ., Patanjali Sastri and Dass JI. look the view that Article 22 does not i4-L748SuP. Cl/74 form a complete code of constitutional safeguards relating to preventive detention. While Mahajan, J. thought that it c-ontains a selfcontained cod.:: of constitutional safeguards relating to preventive detention, Das, J. thoueht that Article 22 lavs down the minimum rules of procedure that eve,:; the Parliament cannot abrogate or overlook. Mukherjea, J. prooeeded to state his conclusions on the· assumption that Art. 22 is not a self-contained code relating to preventive deten• 8 tion. Faz! Ali. J. took the view that Art. 22 does not form an exhawitive code by itself relating·to preventive detention. All this goes to show that all the learned Judges more or less took the view that Art. 22 obtained certain constitutional safeguards regarding the preventive <letention.

Now let us look at Arttcle 22 in so far as it is necessary for the purpose of this discussion : "Art. 22(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three month< unless- ( a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appomted as, Judges of a High Court, has reported before the expiration of the said period of three months that there is m its opinion sufficient cause tor such detention : Provided that ru:>thing in this sub-clause shall authorise the detention of any person beyond the 111aximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (bJ such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7). ( 7)

Parliament may by law prescribe- < o) the circumstances under which, and the class or classes of cases in which, a person may be detamed for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accor-· dance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any la\v providing for preventive detention; and (c) ................................. . I shall now place the various ports of the abJ\'c provisions separately so as to make matters clear : I. No law providnig for preventive detention shall authorise the dotentioa of a person for a longe( period than thre:: n1onth.;; unless the Advisory Board, consisting of persons who are, or have been, or are qualified to be FAGU SHAW v. WEST BENGAL (A/agiriswami, /,) appointed as Judges of the High Court, has reported before the expiration of the said period of three months that there is in its opiniqn sufficient cause for such detention.

2 This does not authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament.under sub-clause (b) of clause (7). 3. No law providing for preventive detention shall authorise the detention of a person for a period longer than. three months unless such person is detained in accordance. with the provisions of any law made by ... u"liament prescribing- ( a) the circumstances un_der which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advi- . sory Board in accordance with the provisions of sub-clause (a) of clause (4); (and) (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention.

The lst proposition means that a law providing for preventive deten- . tion can authorise the detention of a person for a longer period than three mC9nths only if an Advisory Board has reported that there is sufficient cause for such detention. Proposition (2) means that even with the advice of an Advisory Board the detention cannot exceed the maximum period prescribed by faw made by Parliament under sub-clause (b) of clause (7). I shall deal with the question whether it is obligatory on Parliament to make such a law a little later. Proposition ( 3 )' means that if a person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) a;uJ (b) of clause (7) the detention can be fQr a period longer than three months. It should be noticed that the law contemplated under this proposition is oile made under sub-clauses (a) and (b) of clause (7).

Therefore a Parliamentary statute can provide for preventive detention without obtaining the opinion of an Advisory Board by laying down the Cirenmstances. under which and class or classes of cases ln which lt can.be done. In that case the maximum period for which a person can Ile detained should a~so be specified. by the par!iamentary law i.e. a person cannot be detamed for a penod exceedmg three months without obtaining the opinion of an Advisory Board unl;ss the concerned provision ~f Jaw also J!fOVides for the D!BX\n'Um penod for which such .a penon 1s to be detamed. The Constitution makers h~ve conteniJjlaled that if the Advisory Board'$ opinion is to be dispense? with;. the 'mllltimitm period . of detention s.hi:mld be laid down. It 1s pbvious;. therefore, that the word "may" m Art,. . 22(7). amoun~ . to · "Sli&11". ~tis 'a1so .o'bvious that the power to dispense with the opm1on . of an Advisory Board is given only to Parliament.

When it makes a law under clause (7)-(a) & (b) of Art. 22 that also would bind the State Legislatures in so far as they enact any legislation with regard to preventive detention. This is not, of course, to say that State Legislatures have no power with regard to preventive detention. But they do not have the power to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than 3 months without obtaining the opinion of an Advisory Board. That power is completely that of Parfiament . and any State legislation will also be subject to the maximum period prescribed by Parliament under a legislation made under Art. 22(7) (a) and (b). The only question that now remains to be considered is whether if an Advisory lloard is provided for in a law providing for preventive detention under Article 22 ( 4) a maximum period of detention should bo prescribed or not.

In considering this question one thing would be ·obvious : that if Parliament does prescribe a maximum period under proposition (2) ie. the proviso to Art. 22(4)(a), that would apply to all laws relating to preventive detention whether made by Parliament or by a State Legislature. Apparently the power to prescribe a maximum period given to Parliam.ent (referred to in this. proviso) is to prevent the State Legislatures making laws with regard to preventive detention without any maximum limit. This is another limitation on the powers of the State Legislature to legislate with regard to preventive detention. The Constitution makers apparently did not want·the State Legislatures to have an unfettered power with regard to preventive detention even in the field allotted to them under Entry 3 of List 3 of Seventh Schedule. This provision can be usefully compared with the provision of Art. 31(3) which provides for a legislation made under the provisions of clause (2) of Art. 31 being reserved for consideration of the President and receiving his assent in order that it may havo effect.

This was intended to act as a fetter on the power of the State Legisl~tures to legislate under the provisions of Art. 31(2). The only difference between Art. 31(3) and the proviso to Art. 22(4)(a) is that in the one case the power is given to the President and in the other case the power i~ given to the Parliament. Now if under subclauses (a) and (b) of clause (7), read together, Parliament has to prescribe the maximum period of detention, does the fact that the proviso to Art. 22(4) (a) mentions only sub-clause (b) of clause (7) but not also sub-clause (a), makes any difference?

If, as I have already pointed out, this proviso at least contemplates Parliament making a law providing for the maximum period of detention which cannot be exceeded by any State Jaw regarding preventive detention the reasonable construction would be to hold that it is obligatory on Parliament to legislate under snb-clause (b) fettering the hands of the State Legislature in regard to the maximum period of detention. It is true that Parliament cannot fetter its own hands in the matters of legislating with regard to the maximum period of detention. If the Parliament can fix the maximum period it can also alter it. But if the maximum period so fixed is unreasonably long Art. 19 ( 1) would be attracted. An harmonious construction of the whole of Articles 22(4) and 22(7) would thus necessitate that Parliament should provide a maximum period of detention not merely in respect of laws relating to preventive detention 1 r FAGU SHAW v. WEST BENGAL (Bhagwatl, J,) made by State Legislatures but also its own laws regarding preventive detenti0n.

If legislation with regard to the provision of a maximum period is merely optional there was no need for the proviso at all. The fact that only sub-clause (b) of clause (7) is mentioned in the proviso to Article 22(4) (a) does not make any difference to the obligatory character of having a maximumperiod for preventive detention because, as we have already seen, fixing of maximum period of detention is obligatory under Article 22(7) (a) and (b). It can also be said that where Parliament has prescribed the maximum period of detention under sub-clauses (a) and (b) of' clause .(7) such a maximum would be automatica]ly att~acted to the proviso under Article 22 ( 4 )(a) . Furthermore, sub-clause (a) of clause (7) is not mentioned in the proviso to sub-clause (4) (a) because Article 22(4) does not deal with detention without the opinion of an Advisory Board. That is why cla~e (b) alone is mentioned.

It is clear that the concept of a maximum period of detention runs through the whole of Article 22 ( 4) and (7). This is because while Parliament and State Legislatures make laws it is the executive that makes orders of detention and if no maximum period of d~tention is specified by Jaw it would be open to the executive to keep persons in detention indefinitely. It is not reasonable to hold thiit the Constitution makers while providing that if a person is to be detained without the opinion of an Advisory Board being taken there should be a maximum period of detention, thought that no maximum· period of detention need be fixed if the Advisory Board's opinion is taken. It should be noticed that the opinion of the Advisory Board is only as regards the sufficiency of the cause for such detention and not as regards the period for which such detention can be made.

Therefore, taking an overall view and analysing the provisions of caluses (4) and (7) of Article 22 it is clear that a maximum period of detention should be laid down by Parliament whether it is a case of detention after obtaining the opinion of an Advisory Board or without obtaining the opinion of an Advisory Board. I am fortified in . this view by the debates in the Constituent Assembly to which Bhagwati J. has referred. I agree, however, with Mathew J. that the law under consideration has prescribetl the maximum period and therefore the contention of the petitioners should be overruled and the writ petitions· be listed for disposal. BHAGWATI, J. The question which arises in these petitions is of the highest importance. It affec\s personal liberty which is one of our most cherished freedoms. How far shall we permit it to he abrid~d by judicial construction?

Shall we by interpretation vest large and unlimited power in the legislature to detain a person without trial as long as it pleases or shall we read constitutional limitations on the exercise of that power ? That is the real issue before the Court. The law is riow well-settled by the decision of this Court in A. K. Gopalan v. State of Madras(~) that the! legislative power 'to enact a - law providing for preventive detention is derived from Entry 9, List I and Entry 3, List III of the Seventh Schedule to the C<institution. The (!) [19SO] S.C.R. 88. (19741 2 s.c.a. Parliam~nt alone ha.s the power to make law for preventive deti:ntion 'for. reasons co.nnected with the subjects enumerated fo entry 9; List I, while the Parliament and the State Legislature both can make law for preventive detention for reasons connected with the subjects specified in entry 3, List 111.

The legislative power of the Parliament and the State Legislature to make law for preventive detention within ·their allotted fields is plenary, subject only to constitutional limitations, and this legislative power necessarily carries with it. as incidental or ancil· lary to it the power to fix the period for which a person may be detained under such law. Now, if there were no limitations on the exercise of this power, the Parliament or the State Legislature, particularly the latter, could fix any period of detention it liked and indefinitely detain a person without trial. '.!;hat would be a large and fearful power destructive of personal liberty and Art. 21 would n_ot afford any protection against it, because the only guarantee that article provides is that no person shall be deprived of his personal liberty except according to procedure established by law. The constitution-makers, therefore, introduced Art. 22 with a view to placing limitations on the power of Parliament and the State Legislature to make law for preventive detention. so as to safeguard personal liberty of the individual aiminst exces· sive inroads by legislative incursions in the area of personal liberty.

Clauses 3 to 7 of Art. 22 impose these limitations. We are concerned only with els. 4 to 7 which run as follows : "( 4) No law providing for preventive detention shall authorise the detention of a person for a longer. period than three months unlessan Advisory Board consisting of persons who arc or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said' period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub-clause shall authorise .the detention of any person beyond the maximum period prescribed by any law made by parliament undar sub-clause (b) of clause (7); or such person is detained in accor.dance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7). ( 5)

When any person is detained in pursuance ot an order made under any law providing for preventive detention, the authority making the order shall as soon as '!'ay be, c01nn1unicate to such person the grounds on which the order has been made and shall afford him the earliest opp01- tunity of making a representation against the order. (6) Nothing in clause (5) shall requireh th 1 authodr~ty II m:!king any such order as is referred to m t at c aus_e to IS· close facts which such authority considers to be against the· public interest to disclose. FAGU. SHAW v. WEST BENGAL (Bhagwati, /.) ( 7) Parliament may by law prescribe- ( a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period 1ong~r than three months under any Jaw providing for preventive detention without obtaining the opinion of an Advisory Board in accordanoo with tho pr01•isions of sub-clause (a) of clause ( 4);

(b) the maximum poriod for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and ( c) the procedure to be followed by an Advisory Board in an inquiry under sul>-c!ause (a) of clause (4} ." It is clear on a combined reading of els. ( 4) and (7) that if a law made by Padiament or the State Legislature authorises the detention of a person for a perio.d no.t exceeding three months, it does not have to Sltisfy any other constitutional requirement except that it must be within the legislative competence of the Parliament or th~ State legisla· ture, as the case may be. The Constitution permits the Parliament and the State Legislature to make law providing for detention upto a period of three months without any limitation, presumably becaus~ detention for such a relatively short period of time without any further safeauard may be justifiable on practical and administrative grounds.

But when the law seeks to provide for detention for a longer period than three months, it must comply with certain constitutional safoguards, These safeguards are to be found in sub-els. (a) and (b) of cl. (4). Sub-cl· (a) of cl. (4) lays down that no Jaw shall provide for detention for a period longer than three months unless an Advisory Board consisting of persons with the qualifications there mentioned has reported before the expiration of the period of three months that the.re is in its opinion sufficient cause for such detention. The law must, therefore, provide for reference to an Advisory Board and its report within a period of three months, if the detention is to last longer than thrne months. If the Advisory Board opines that there is no sufficient cause for detention, the person concerned cannot be· detained beyond a period of three months.

It is only if the opinion of the Advisory Board is in favour of detention that the person c·oncerned can be detained for a longir period than three months, but in such a case what shaU be the period of detention is entirely a matter for the detaining authoritv to decide. Vide Puranla/ Lakhanpal v. Union of lndia.~ 1 ) There is, however, an out· side limit to the period of detention laid down by the proviso which says that nothing in sub-cl. (a) of cl. ( 4) shall authorise the detention ot any person boyond the maximum period prescribed by any law made by Parliament under cl. (7), sub-cl. (b). It will, therefore, be seen that under cl. ( 4), sub-cl. (a) there is a double safeguard.

One is that there can be no detention beyond the. period of three months without !he intercession of the Advisory Board and the other is that even where the Advisory Board is of the opinion that there is sufficient cause for the detention, the person .concerned cannot be detained beyond the maximum period prescribed by Parliamentary law made under cl: (7), (I) [1958] S.C R. 460. [1974) 2 s.c.a. sub-cl. (b). Clause (4), sub-cl. (b) lays down an alternative situation where a person may be detained for a period longer than three months without obtaining the opinion of the Advisorz. Board and that is where the detention is in accordance with the provmons of any law made by Parliament under sub..:ls. (a) and (b) of cl. (7). Sub'cl. (a) of cl.

(7) empowers the Parliament to make a law prescribing the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board and sub-cl. (b) of cl. (7) provides that Parliament may by law prescribe the maximum period for which any person may in any class or classes of cases be detained under any law of preventive detention. When the Parliament has made a law under sub-els. (a) and (b) of cl. (7); a person can be detained in accordance with such law for a period longer than three months without the inter· cession of the Advisory Boari:I. Now we are not concerned in these petitions with the question as to what is the scope and ambit of sub-cl. (a) of cl. (7) and what kind of Jaw is contemplated by this constitutional provision. That question arose for decision before this Court in Sambhu Nath Sarkar v. State of Wes!Bengal(') and there is an authorative pronouncement of seven judges of this Court on that point.

But that need not detain rr..,;. Our concern is with sub·cl. (b) of cl. (7). The question that we are called upon to consider is whether it is obligatory on the Parliament to prescribe the maximum period of detention under cl'. (7), sub..:!. (b), if the detention is to be made for a longer period than three months under sub-cl. (a) of cl. ( 4). Now one thing is clear that the Parliament is under no obligatian to make a Jaw under sub-cl. (a) of cl. (7). It is only if the requirement of obtaining the opinion of the Advisory Board is intended to be dispensed with that the Parliament must make a law under sub-cl. (a) of cl. (7l. If the Parliament does not make such a Jaw, cl. (4), sub-cl. (b) will not come into operation and detention for a period longer than three months, whether under Parliamentary Jaw or under State Jaw, would be impermissible without obtaining the opinion of the Advisory Board.

It was not disputed on behalf of the respondents M•J • siouuo iuom•!JJ•d OIJl oJoqM )BIJl 'oq 1ou pfllo~ l! poopur pllll under sub-cl. (a) of cl. (7), it must be accompanied by a law made by the Parliament under sub-cl. (b) of cl. ~7). Mere enactment of a law ·under sub-cl. (a) of cl. :(7) would be futile without a Jaw under sub-cl. (lb) of cl. (7), because what sub-cl. of cl. (4) requires is that the detention must be in accordance with the law made by Parliament under sub-els. (a) and (b) of cl. (7). The language of cl. ( 4), sub-cl. (b) posits clearly and in no uncertain terms that there must be Jaw both under sub..:ls. (a) and (b) of cl. (7) in 1rder that cl. (4), sub-cl. (bl may operate. If there is a Jaw only under sub·cl. (a) of cl. ( 7) and no law under sub-<:l. (b) of cl. (7), a person cannot be detained longer than three months without obtaining the opinion of the Advisory Board as contemplated under cl. ( 4) , sub-cl. (a) . The making of a Jaw by the Parliament under sub-cl.

(b) of cl. (7) is therefore obligatory if tbe detention is to be !I) fl973J I S.C.C. 856. F.t.GU SHAW V. WEST BENGAL (Bhagwati, J,) .855 for a longer period. than thrlie months without. th~ intercession of tho Advisory Board. The object of the constitution makers in insistina on this requirement clearly was that though in ''exceptional circumatanees and exceptional classes of casee" the Parliament may by law authoriao C:etention tor a period more than three months without reference to the Advisory Board, ·such detention should be a maximum period specified by the Parliament beyond which it should not extend. There should be an outside limit to the detention by the specifu:ation of the maximum period by the Parliament. This was the safeguard provided by the constitution makers in protection of personal liberty. The maximum. period specified by the Parliament must · obviously be a reasonable one, because. otherwise the Parliamentary law would be bad as offending els. (a) and (al of Art. 19(1). ·So much is clear and beyond dispute.

But the question is : does the same requirement of specification of the maximum period by the Parliament aleo apply where the detention is sought to _be made for a longer period tl:tail three months under sub-cl. (a) of cl. (4)? The answer to this question depends on the true interpretation of the Proviso to sub-cl. (a) of cl. (4) read in the context of cl. (4), sub-cl. (b) and cl. (7), sub-els. (a) and (b).

Sine' the purpose of interpretation is to ascertain the real meanina of a constitutional provision,, it is evident that nothing that is logically relevant to this process should be excluded from consideration. ·It was at one time thought that the speeches made by the members of the Constituent Assembly in the course of the debates on the Draft Constitution were wholly inadmissible as extraneous aids to. the interpretation of a constitutional provision, but of late there has been a shift in this po1jtion and following the recent trends in juristic thought in some of the Western countries and .the United States, the rule of exclusion rigidly followed in Anglo-American ju'risprudence has been considerably diluted.

Crawford in his book on Statutory Construction points out at p_age 388 : p "The judicial opinion on this point is ceriamly not quite uniform and there are American decisions to the effect that the general history of a statute and the various steps leading up to an enactment including amendments or modifications of the origllial bill and reports of Legislative Committees can be looked at for ascertaining the intention of the legisla":'re ~her~ it is !n .doubt: ~ut they hold definitely that the legisla!lve hIStory IS madm1SS1ble when there is no obscurity in the meaning of the statute." This Court, speaking through Krishna Iyer, J., has also noted this ~hange in the methodology of interpretation and recognized its validity m State of Mysore v. R. V. Bidan(I) where after referring to the rule laid down in earlier. decisions excluding ~eference to legisJative pr?Ceedings for. the puqiose of interpretation, the learned Judge said :

"This. rule of exclusion has been criticised by jurists as . artificial. The trend of academic opinion and the ptlCtlco (I) c.A. No. 992 of 1912, dee. on 3-9-1973. 85 6 in be European system suggest that in:erpretation of statute being an exercise in the ascertainment of meaning, CVCtything whic.1 is logically relevant should be admissible. Recently; au eminent Indian Jurist has reviewed the .egal 1>91i:i<!n and expressed his agreement with Julius Stone and · Justic~ Frankfurter. Of course, nobody suggests that such el!11'inliic mat<rials should be decisive but they must be admissible. Authorship and interpretation must mutually illll!llim -.nd interao·. 'There is authority for the proposition diat resort may be had to ·these sources with great caution and only when incongruities and ambiguities are to be resolved.

There is strong case for wittling down the rule of Exclusioa followed in the Bri·ish courts and for Jess sapo:ogitic reference to legislative proceedings and like .materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with o'her provisions and in other special circumstaBoes, it may be legitimate to take external assis· tance such as the obj~t of the provisions, the mischief sought to b~ remedied the social context, the words of the authors and other allied matters." We may, therefore, legitimately refer to the Constituent Ass_embly d.:bates for the purpose of ascertaining what was the object which the constitution makers had in view and what was the purpose which· they intended to achieve when they enacted els. (4) anJ (7) ill their present form. When cl. ( 15) of the Draft Consti· tiition, c0rresponding to Art. 21, was adopted by the Constituent Assembly, there was no clause in the Draft Constitu·ion CQ(responding to Art. 22.

A forge section of the Constituent Assembly, including Dr. Ambedkar, was greatly dissatisfied with the wordings of cl. (16) and it was feh that cl. (15) as adopted gave to the legislature a carte blanche to provide for the arre& and detention of any person under any circumstances and for any period it deemed fit. Dr. Arr.bedkar, t:1erefore, introduced a new cl. !SA providing certain safeguard<. but in the course of a long and spirited debate which followed. i• was found that these safeguards were not adequate. Jn view of the discussion which took place, Dr. Ambedkar amended cl. 15A so as to incorporate some of the suggestions and the amended cl. !SA was then further revised by the Drafting Committee. In the course o'.' revision, the Drafting Commit'ee re-numbered els. 15 and !SA as Arts. 21 and 22 respectivelv. Thereafter when the revised Draft Coo;iitution came up for consideration before the Constituent Assembly, on behalf of the Drafting Committee· itself Mr. Krishnamchari moved two amendments which sought further to redraft clauses ( 4) and ( 7 l so as to indicate clearly that there would be a maximum period laid down by Parliament for which any person or any class or classes of persons could be detained by any law providing for sucb detention: even in cases where the Advisory Board approved· of de!en: lion beyond three months. no authority in India could in any circum· stances order the detention of a person beyond the maximum limit j FAGU SHAW v. WEST BENGAL (Bhagwati, ].) so iaid down by Parliament.

Certain apprehensions as to the true. etfoct of these amendments were voiced by some members but Dr .. Ambedkar while replying to the debate clarified the position and explained the scope of the amended article as follow; : "First, every case of preventive deten:ion must be authorised by law. It c1nnot be at the will of the executive. Secondly, every case of preventive detentio;i for a period longer t'lan three months must be placed before a jud;cial board unless it is one of those cases in wh1ch Parliament, acting' under clause (7), sub-olause (a), has by law pies· crib,d that it need not be placed before a judicial board for authorit~ to detain beyond three months. Thirdly, in every case, whether it is a case wh!ch is required to be placed before the judicil~ board or not, Parliament shall prescribe the maximum period of detention so that no person who is detait,ed under any Jaw relating to preventive detention can be detained indefinitely.

There shall always be a maximum period of deten·ion which Parliament is required to prescribe by law. Fourthly, in cases which are required by article 22 to go before the judicial board, the procedure to be followed by the Board shall be laid down by Parliament." The amendments were then adopted by the Constituent Assembly and Art. 22 emerged in its present form. There can, therefore, be no· doubt that aooording to the constitution makers, it was clearly in· .. tended 1hat if detention is to bo for a longer period than three months,. whether under suh-cl. (a) or U!lder sub.cl. (b) of cl. (4l, the Parliament must prescribe the maximum period of detention and to use the words cf Dr. Ambedkar, "there shall always be a maximum period of detention which Parliament is required to prescribe by law".

1 :1e problem before us therefore resolves itself into a very narrow one, namely; are we going to accept an interpretation which gives effect to the intention of the constitution makers, or are we going to defeat their intention by a highly literal interpretation ? Are we going to prr.servc the safeguard .. which the constitution makers in their overweening anxiety to protect personal liberty intended to fashion or are we going to dilute it by a process of construction? Fortunately the language of the Proviso to sub-cl. (a) of cl. (4) is not so intrac'able that it cannot be interpreted so as to effectuctte t'ie intention of the constitution makers and protect the citizen from indefinite incarceration withOut trial. I shall presently examine the 1c:;oguage. but before that, let me once again look at the object of the provision in cl. (7), sub-cl. (bl. This "provision, as I have pointed out in relation to cl. (4), sub-cl.

(b), is intended to provide a safeguard or insulation against indefinite detention in cases where detention for a longer period than three months without reference to the· Advisory Board is authorised by Parliamentary legislation under subcl. (a) of cl. (7). Now, if this protectbn or safeguard is necessary 8 58 ·where the detention may b~ for a long~r period than three monibs under a law made by Parliament under sub.cl. (a) of ~l. (7), a fortiorari it should equally be necessary where the detentton is under sub-cl. (a). of cl, (4) because under that provision too the detention would be for a period longer than three months. It can hardly be supposed that the constitution-makers should have thought that in one case detention for an indefinite period should be impermissible as grave encroachment of personal liberty while in the other it should be allowed without any inhibition.

The provision for reference to the Advisory Board would certainly ensure that there is sufficient cause for the detention, but, as held by this Court in Puran/al Lakha11- pal v. Union of llidi£1( 1) the Advisory Board would have no say in the matter of determination of the period of detention and how long to detain would be solely within the power of the detaining authority. There would thus be no check or control of the Advisory Board so far as the period of detention is concerned. The power of the detaining authority in regard to the period of detention would. therefore, be as large and unlimited in a case falling under sub-cl. (a) of cl. (4) as il would be in a case falling within a law made by Parliament under sub-cl. (aJ of cl. (7).

Equally in both cases, this power could lend itself to abuse bY detention for indefinite duration and render the guarantee of persona·! freedom illusory and meaningless. rt was to coantcract this menace and safeguard personal liberty from attenua· tion by excessive inroads that the constitution-makers enacted sub.cl. (b) of cl. (7) providing for fixation of maximum period by the Pariiament beyond which no person can be detained whe'.her under pariiamentary law or under State law. The compelling reasons which neces;itated the enactment of the safeguard in sub-cl. (b) of cl. ( 7) apply equally whether the detention for a period longer than throe mcnths is authorised under sub-cl. (a) of cl. (4) or sub-cl. (a) of cl. (7). It therefore stands to reason that where the detention is to be for a longer period than three months under sub.cl. (a) of cl. (4). tlie saieguard of the maximum period to be prescribed by Parliament under _cl. (7), sub-cl.

(b) must be there so that there can be no detention for indefinite duration. If there is no maximum · period prescribed by Parliament under cl. (7}, sub-cl. (b), detention cannot be authorised for a period longer than three months under sub·cl. (a) of cl. ( 4). To take a different view would mean that where the Parliament itself authorises detention for a longer period than three months under cl. (7). sub-cl. (a), the Parliament is required to pmcribE. a maximum period but where the State Legislature authorises detention for a period longer than three months under sub-cl. (a) of cl. ( 4), no maximum period need be prescribed and once the Advisory Board gives a favourable opinion, the State Legislature can authorise detention for an indefinite period. That would indeed be a highly regrettable result. It would free the State Legislature from any restraint as to the period for which it may authorise detention under sub-cl. (a) of cl.

( 4) and open the flood gates for excessive invasion of persona! liberty. J do not think such is the meaning of the comtituti~~l_pr~~-~io~-·-· (I) fl 058) S.C.R. 4fi0. FAGU SHAW v. WEST. BENGAL (Bhagwati, J,) The Proviso to sub-cl. (a) of cl. (4) says that though a pers.on. may be detained for a longer period than three months after obtaming the opinion of the Advisory Board, such detention shall not extend. "beyoiid tl!e maximum period prescribed by any Jaw made _by Parllam~ul under sub-cl. (b) of cl. (7)". It is clear on a com)nned read•· )ng of the Proviso and the main provision in snb·cl. (a) of cl. (4) that the Proviso is an integral part of the main provision. It is in· tended to cut down the large amplitude of the power of detention con· ferreil under the main provision. The scope and boundary of the power of detention under cl. (4), sub-cl. (a) can, the~efore, be, defined only by reading the Proviso and the main provision as one· singie enactment.

Both together represent the will of the constitution makers. One cannot be disjoined from the other and given effect to, though the other is not operative. If the Proviso does not operate, the main provision also would not, for the main provision is intended to operate only with the limitation imposed by the Proviso. It is dilli· cult to believe, for reasons already discussed, that the constitution· makers should have intended that the power to detain. for a longer period than three months should be exercisable, even if·~ limitation< imposed by the Proviso were non-existent. The Proviso and the main provision form part of one integral scheme and either both operate· together or none. Here the Proviso is not used in \ts traditional orthodox. sense. It is intended to enact a substantive provision laying down an outside limit to the period of detention. If there is no outside limit· by reason cf Parliament not having prescribed the maximum period under sub-cl. (b) of cl.

(7), the provision enacted in cl. (4), sub-cl. (") cannot operate and in that event detention cannot be continued beJ"?nd three months, even though the opinion of the Advisory Board· may be obtained. The Proviso clearly posits the existence of a law made. by Parliament under sub-cl. (b) of cl. (7) and makes it an· essential element in the operation of cl. ( 4), sub-cl. (a). The consti·· tution makers have. by enacting the Proviso in cl. (4), sub-cl. (r'. achieved the same legislative end as they have in cl. (4), sub,-cl. (b)' by using the words "and sub.cl. (b)". The legislative device has been different because of the differing structural arrangernen•s of the two sub-clauses. This is in my opinion the correct construction of cL (4), sub-cl. (a) read with cl. (7), sub-cl.

(b)_ In any event it is highly possible construction and if it carries out the intention of the constitution makers and inhibits the power of the legislature to authorise detention for. .indefinite duration, there is no reason why we· should not prefer 1t. We must remember that it is a constitution we are expounding-a constitution which gives us a democratic repubJi-. ~an form of governme!lt and which recognizes the right of personal liberty as the most pnzed possession of ao individual. Shall we not then lean in favour of freedom a11.d liberty when we find that it can be done without any violence to the fanguage of the constitutional provision ? .shall we not respond freely and fearlessly _to the intention of the foundmg father and interpret the constitutional provision in the broad and liberal spirit in which they conceived it. instead of adopting n rather mechanical and literal construction which defeats theirintention? (1974] Z S.C.R. It may be argued : what is the value of this safeguard, how does it strengthen the guarantee of personal liberty, when the fixation of the maximum period is not immtitJble, but can fluctuate accoiding to the pleasure of the Parliament.

I do not think this argument is valid .. It fails to tlke into account two important considera'ions. In the first pl&ce, cl. (4/, sub-cl. (b) cleariy shows that even though th<: fixation of n1aximum period is within th.:: discretion of Parliament, the_ cons'itution makers regarded it as a valuable safeguard, for otherwise they would not have insisted upon prescription of maximum period ns a condition of detention for a period longer than three months under a law made by Parliament under cl. (7), sub-cl. (a). Even where Parliament itself makes a law under cl. (7), sub-cl. (a) authorising detention for a period longer than three months, the Constitution says that in order that such law may operate, .Parliament should prescribe the maximum period.

That shows the great importance attached by the constitution makers to this safeguard, even though the maximum period is to be fixed by the Parliament and a fortiorari, theoretically at least, it may be varied from time to time according to the pleasure of the Parliament. Now if the prescription of maximum period is regarded by the Constitu~ion makers as a valuable safeguard . necessary to be complied with even where Parliament makes a law under cl. (7), sub-cl. (al authorising detention for a longer period than three months, how much more necessary and valuable it would he where instead of a parliamentary law, a State law authorises detention lo< a period longer than three months under cl. (4), sub-<:!. (a). Secondly, if the maximum period is required to be prescribed.

Parliament would necessarily have to apply its mind to the question and when it does so. it can safely be presumed that, being a highly responsible body that it is, it would fix a maximum period which is reasona1,le and that would provide a check against indefinite detention by the Government. It is true that theoretically it may be possible to say that the fixation of the maximum period can be varied by Parliament arbitrarily according to its sweet-will, but in practice such an eventuality would be highly remote having regard to the pressure Of democratic forces and sanction of public opinion. Moreover, if the mdximum period fix.ed is unreasonable, it can always be struck down by the court as violative of els. (a) and (d) of Art. 19. It would net, therefore, be correct to say that the prescription of maximum p~riod by Parliament is an illusory safeguard. At least the constitution makers did not think it to be so.

These reasons compel me to differ from the view taken in the leading judgment of my learned brother Mathew, J. In my opinion Parliament is free to prescribe or not to prescribe a maximum period under cl. (7l, sub-cl. (b). It is under no obligation to do so. Rut if no maximum period is prescribed, neither the Parliament nor the State Legislature can authorise detention for a longer period . than three months ·either under sub cl. (11) or sub-cl. (b) of cl. (4l. If the Parliament or the State Legislature wishes to authorise detention for a period longer than three months, it must conform to the provisions of CitMr sub-cl. (a) or sub-cl. (b) of cl. (4) anct that requires J FAGl:I SHAW v. WEST BENGAL (Bhagwati, ].) 8 61 that maximum p~riod must be prescribed by Pariiament by law made under cl. (7), sub·cl. (b). There would thus always be a ;naximum period of detention : ei:her the initial period of three months or the m:iximum _period prescribed by Parliament under cl. ( 7), sub-cl. (b).

Th,rc can o~ no detention for a period longer than three ma.iths un· less 1he maximum period of detention is prescribed by Parliament under cl. (7), sub-cl, (b). I know it is not customary tb refer to opinions expressed in the iext book of a Jiving author but I cannot holp mentioning that Mr. Seervai in his book. on Constitutional Law also echoes the same line of thought. (Constitutional Law of India, p. 450, para 12.52). This is the view which I am taking on construction bu l must consider whether there is anything in the earlier decisions of this Court which precludes me from doing so. Three decisions were cited bdore us and I must now refer to them. The first is (Jopalan's case(supra) where six learned judges compr!sing the constitution bench delivered separate judgments in regard to the validity of certain provisions of the Preventive Detention Act, 1950. None of the learned judges, except Kania, C.J ., dealt with the present point or expressed any opinion upon it.

Kania, C.J., alone had something to say and he observed : "Sub-clause (bl is permissive. It is not obligatory on the Parliament to prescribe any maximum period. It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of s_ub-clause (7) itself and the court cannot help in the matter." It will be seen that these observations merely express the inse dixit of the learned Chief Justice. There is no discussion of the point and no reasons are given in support of it. That cannot bind us. The next decision is that of the constitution Bench in s. Krishnan v. The State of Madras('). There were three main judgments in this case. The first was by Patanjali Sastri, J., (as he then was), with whom Kania, CJ., agreed.

(Patanjali Sastri, J ., did not deal with this question at all and his judgment does not throw any light on it. '!'he second judgment was by Mahajan, J., (as he then was), with whom S. R. Das, J. (as he then was) substantially agreed. ~1ahajan, J .. certainly dealt with thi> question but it is evident from the relevant· portion from his judgment ~xtracted by brother Alagiriswami, J., that the question was not raised before the Court in that case in the form in which it has. been presented before us. The argument which wa> advanced in t'iat case was that the word 'may' in cl. (7J oi Art. 22 1'1ust be read in the sense of 'must' and it must, therefore. be held to be obligatory on the part of Parliament to make a law u'nder sub-cl. (b) of cl. (7) of Art. 22. This argument was rejected b'' Mahajao. J. That does not help us because the argument before u; h quite different. Moreover.

Mahajan, J .. regarded this point as conc]uded by the majority decision in Gopalan's case (supra) and relied on the ob. servations of K~nia, C.J., which I have quoted above. But this wa< obviously under some misaonrehension. because. as pointed out above. the other learned Judges did not express themselves on this point and (!) [19l!J S.C.R. 621. 86.2 the observations of Kania, C.J., did not represent the majority d:ci· sion. In any event, this view expressed by Mahajan, J., was shared only by S. R. Das, J., and Bose, J., emphatically dissented from the view. Bose, J., in a strong and powerful judgment held .that though it is .. riot obligatory on Parliament to fix a maximum period of detcn, lion under sub-cl. (b~ of cl. (7) of Art; 22, if a .person is to be de.- tained. for a period longer t!!an three months, a maximum period .must be prescribed by Parliament. This is the same view which has found fovour with me. This decision does not therefore compel me to hold othe;rwise.

The last decision to which I must refer 4 that.in · State of .· West Bmgal v. Ashok Dev('). Ii cannot be. disputi;d that the question in the form in which it .has. been:· presented before us was raised before the Court in that case. But, if we look at the judgment of Dua, J ., and particular! y the portion extracted in the judgment of bcother Alagiriswam~ J ,, it will be:, clear that the argument advanced before the Court in that .case was .the same as that in Krlshnan's case (supra), namely, "ihat 'may• in the opening part of" cl. (7) of Art. 22· "must' lk read.as 'shall' in respect of sub-clauses and (c) thpugh it retain\ its. norm~! permissiye character in so far as clause (a) is c6ntemed'', andjt was this, argument which was rejected by the. Couri·:by .saying thaf ''in the .'absence of special eompelling rdsoris" it "can be supporteq ueith.er·: 9i:t principle nor by precedent".

The argum,Ont here is quite' different : it is not contended that 'may' must he reriJ 'as 'shall', It ;is an argument from a different angle ruiP approach ~nd that does· not appear, to hav.e been canvassed before the Court nor has it been. discussed. Moreover, this d.ecision is by a Bench. of. fou~. judges'. Tt cannot therefore deflect me from the view I aii) :t~lPhg, Now"irl''!he· pn,sent case ~: l3"6f the Maintenance of Internal seeurity'Act',< Ji}7i:' (llcreinalierre~ired .to as the AC!) as it originally stiiad,·prOV:idei'!·tfiaftltl~!llitiJU~!ri"P.,riod for which any person .may M" det~ined in ~nrs~.ance': 0(: flQY .'.detention which has tieen confirmed u~der s.· n:~al! ·be·t~l".e.!ri(ill\l!Orom !he da\e ofdetentio!', l,)w~s co~?r1'.8f9\fy~ ·between t~e. p:l'r!l~s . that . t11e. p~riod .. 0f · t:v~Iv~. PJ!'D~ pr~~.. ~.d··.

Hoy. ili. ~ ·u~a~. • ... ~.de .. d· s., t3 . ' fi.S. ti). ~.J?l¥!mum p. eriad,' . for ..... w ... hi9)1, a ~r~on:'.coilld, be. d~tam~ tlo,der .the ,proy1s19µs ()f the .ACt.::WllS '.'.~ mifintperiotl'' as ·contemplate\! under sub'°!. ,(p}.. of cl •. (.7) Gf Art .. ~2<" But :~Y s.'.{1\<ll',of the Pef~)fce of, fhdia Act, 1971, · w!iich -cami: · i11!q force on llttt·December; 1971, ~· 13 w~ amendedls0 as to provide tliat tM rilaximum.'jleriod; ofdet.enti9n shall be, "i\Velve months:from the dat~ ofde,t~nhon ~; u~tif the expiry ot the .Defence of India .Act, 1971 whichever 1s latter , Sec:. I {3) of \he Defence oLindia Act .1971 laid down the duration of that A.ct and said. ihai thai.Ac(shallrcmain in f?r~e for'the di.Jration of.the pr<>¢jamatio11 9~ emergency arul\liperiod of s1.x:mon!hs. :\herea(ter,.

S.es. /J• a~ .amended, •thus p«Wided that the maX11D1lri( P"!.1?<1 of <!i;tont1on unµe, .. the A-ct s~a~:Jie,tw~lve ,nn)nthS from the· date. of detention .or until tlie expiry .of a.periQd Qf .. &i:J:•momhs (l).[j97~l (l). s.<;:.c. 19~. FAGU SIIAIV v. WEST DENGAL (Bhagwati, J.) aftcl the cessation of the proclamation of emergency whichever i3 Jatte1. The question is whether ~ perio~ p~escr1~d by the ru;nended s. 13 could be said to be "maXImum per10d w1thm the mearung of that expression as used in sub-<:!. (b) of cl. (7J of~- 22. The argument of the petitioners was that the period specified m the amended s 13 was ·indefinite inasmuch as it could not be predicated as to when the proclamation of emergency would come to an end and it cou.d not therefore be regarded as "maximum period" so as to satisfy the mandate of sub-<:!. ( b) of cl. ( 7) of Art. 22.

The petitioners contended that smce no maximum period was prescribed by · Parliame':'~ the ~mended s • .13 being inadequate for that purpose-the petitioners could not be detained beyond a period of three months and they were therefore entitled to be freed. This argument requires serious consideration; The question is what is the meanini: of the expression 'maxim11l'll · pmod' in sub-cl. (b) of cl. (7) 1 ·When a period is fixed with refer- = to the happening of an event, which a ·bo\llld to happen, but of whli;h it cannot be predicated with any definiteness as to when it · would happen, as for example, cessation of emergency or death of an individual; can it be said .that the period fixed is 'maximum period' within the meaning of sub-cl .. (br of cl. (7) 1 The word 'maximum' aC'COrding to the Shorter Oxford Dictionary means "highest attainable magnitude or quantity (of something); a superior limit" and the word 'period' means·"a course pf cneni of time; time of duration".

There- . fere; as· a matter of plain grammatical English, the words 'ma~ period' mean the highest or. greatest extent or stretch of time which an outside limit. Now this highest or greatest extent or stretch of lime may be determined by means of a fixed date or in tqms .of years, months or days or by reference to the occurrence of an evmt. Bat whatever be the mode of determination, 'maximum period' l!lllSt be. a ·definite period. The measure of the period must not be nn· certain. The outside limit must be definite and known. The perioc1 fWt)g the· outside limit may be prescribed by· reference to an event, · but the ·date of occurrence of the event must not be un~. It .tould be possible to predicate that the event will happen a(. a defillite · ascertained point of time. ·It is not enough to say that !ht· eYCOt is certain and bound to happen. . What is necessary is that the l>Oiut of time at which the event wouJd haPPCn must be definite.

Then llllly it can be said to fix the 'maximum period' of detentioa. It ls indeed difficult to see how "maximum period' can be said to be p~­ cribed, when no one knows how long It will be. It may be fiv" years,. or ten years or· more. That would be uncertain.· How can such· a. period be. regarded as 'maximum period' fixed by law ? The · very. notion of 'maximuin period' carries with it a sense of defutlte.· m•ss. .When maximum period is prescribed, there must · be definite qua!ifi;ation of the length or duration of the period. U tho l•njl!h of duratiQn. is uncertain in that it depends on when a particufai event· would_ happen,· the prcscrlption of such a period would hardly Kt u a checl:: against indefinite detention, for· there would be no guara11!U that. t,!te detention would. not .ccntinue beyond a determinate ·poh)r , oI;till!C-, .Jl1e_ period Of detention which could: be authoriseil lij ~ 1$ . 741SCff74 (19741 2 ~.c.R. Legislature would in such a case be indefinite, because ii wOUld l:le . uncertain as to · when the eVent, by reference to which the period is to., be: measured, would. happen.

That woutd fail to effectuate the object,: and purpose of the ri;quirement of prescription of maximum period, enacted in sub-cl (b) of cL (7). ·1::may at this·stage·paus<> to.consider.what would be the conse·· quences if a construction c0ntrary to that I have discussed above· were accepted.. ·Jt is true that the consequences.of a suggested cons~· tructfon'do not alter the meaning of a statute but they certainly help·. to ,fix its meaning.

If I accept the constniction 'that maximum period can' be prescribed with· reference·to an event, even·· though th<> event· is such that Jhough certain, it cannot be predicated of it with im•r definiteness ·as to when it would occur-<llld it is only on the basis of .. tltis. conslruetioa that' the fixation: of maximum penod with· reference.· to.the duration. of an:.emergency·can.be·upheld.and not other~· ~logically 'it . would. mean that: 'maximum period' can: be ~ witli reference to· the life of the person detained and if such maJJilnum· period.· h: li&ed,: it would be open to the: legislature 'to authorise dettri• tion:ota·person for the.duration of bis life:

That would be a m~t· stiirtlingA1nd. devastating result. • It W impossible· to· belieye· th:it. thC' cOllltitution; roa]cers who. had themselves: suffered . long periods ·ot· in• cateeratiencat: the· hands of. the Jlritish • rtilers should.have··become·sa· Obvjpus of .. the need to· safeguard• personal' liberty that· they sho'llld have: l#enr carte< blanche to· the: Parlia!nent to permit detenliont of· a P!!CS!ln · for, life without trial. : The: powectc>- detil.ll withoU'' tiial' is· il$l:lf-.a drastic power. jnstified. only· in :ther iiiterest· of publk s'!:cutify' al!d.:Qrder ..

It is tolerated in:a free society as·.a·necessa~•eW:.-Bu1: the power to detain a ~on for Jl/t!'.wilhout'tria!.is something"ullthink.:. ~ble in· a· democracy governed:by;the rule onaw: · Ir iS :a dracoiliC' power suDyersive' of freedom.and liberty :and can have·no plaee ~·01tt· oonstitution:al arrangement. ;.To· grant:.:such;:a' pcwer·would oo·to de~tro.y the. democratic way of life;•to alinlhilate one of the mt!St"ch~ rished . values of a ·free ·society and to vest' in· the ·State autl\oritarian pQWer whichds the".anti-thesis.of the' rllle·of·Iaw. It would 'rob'tlie fllJldamepta!.guarantee of persottal liberty 'ofcall;meanlng arid eonteiit aiid. reduce it to a .mere :husk. It wotild · amotmt. to' the •Qiustit\ition• telling all persons residents .in the· land;: in ·the'Words of ;ir6Se; .J.'l·. · ·:"'lfere is the fulr eXtent · of your h'bcrt;r. so far. ·a~,.· the leng11i ·6fdetention is concerned.

W!?·'guat%ltee that you . wi11·11ot ~·detained . beyond t?Jree .m0nth.s . unle.ss 'Parliament· 9tl)erWise·<1irects, either generallror in your:particular class of i:asa; · but we empower Patllamel:lt' to smash the guaranlte ·alisoliite!Y .if it so chooses·Withoui'let·or biildrance. Wi•h, . ·01lfreg(i-1ction. Tfiougi,' we autliOf!se, J>lliUament 'to presctifie a n'i;jii!!\utii limit of deteittiol\ ·if. ii ~o·.chooses, we place no C:omphlsion·on·it to do so' and w~'·au•horise.it.IO pass le~s- II 'latf<iil '.which. will emwwer. aqj person .Pr authority Par1i3..- '1p~~t 'ch~ses to, nfafi:e, rlg!\t 'd~w?.to a·p,~!iC,e constable, f!) arresfyou •and detain 'yob "as long as he pleases, .for .. the. FAGU.5HAW v •. wt:sr BENGAL (Bhag)fati, J.) duration of your life if he wants, so that you may linger:and rot in jail till you die, _as 'did men in' the Bastille." - i ·shedder to accept such a· construction..

Ithiiikthe m:uimum-period' nii:st be prescribed either by reference to _a fixed date or in' terms of· years, months or days or by referel!C<> to some ev~nt of whicll'it can : be predicated with certainty that it would happen at a detcriajpate point of time, so that there is complete asc:ertainment of What -the period is meant to be and it .is. noi indefinite.· Of course, the maxi-.. m=·period which is so prescri~d must be reasonable, for othenvise, it;Would·be violativeofcls. (a)·andJdl pf Art. 19 •. TWs constrnc-. tian em~es .two safeguards against detention. for a longer period than three· mQJlths, one under cl., (7), sub-ti.· (bl of Art. 22 and the other Ullder els, (a) and (dl of Art" 19.

1' am conscious that. the power to.detahi··a"person without Ilia!.. is • ,,ecessary . p_ower for ·preservation of the Stat: and · maintenance· o{ P'JbliC- securilj and order and therefore when there is an emergency,• . it 1:;ay· be thou~t expedient that , the State ·should have the. power to; d;tain a person without trial for the iluratiorr of the emergency lUld, confennenl of such a power may not be regarded as. =•sonable;' ]Jut this consiiieration cannot persuade me to accept..& meaning of the wcrds·,'maxilnuin period' which would render the fundamental gu<1t~ri,., lee of persollalliberty precarious. It.must· be remembered· that.~, Constitution is meant to provide not only for· times ·of emcrtency· but• also !Qr normal times, and it would not, therefore, be right to ~-" JJ. coi:stitutional provision such as sub-cl. (b) of cl.

(7), ~ ifit•wcrc: an.emergency provision.· The _law of _preventive detention. is.· ~ot. =ssarily a product of emerg~ncy. ·Indeed it has ·been there .Jn our. colintry in one form or another since the coming into' fon:e_ or the, i Canstitution. Sub-el. (b) ot cl. (7) should not, thcrefore,·be,mterc._ pre led according to . the. cannon of' construction which is'· •oinetimes . adopted in interpreting war tiine or emergency legislation.; It. inUs; be construed like any other constitutional provision having regard to, . JI ils object and intentment. The fact that we arc living today in . an emergency. should not colour· our interpretation of. the. constttution";I , provision; Thee constitutional provision_ must spe>k. the same vo_ice ; . whether it be i!1 times of ·emergency or _in normal times; . We mu~t not forget what Mr; Jastice Brande is said .in· Whitney .case (') : '.'Those who won our independence by revolution were not cowards. They did not fear political change.

They did not exalt oider. at the cost of liberty.'' We may also recall the words of Mr. Justice Murphy in fJridges case(•) where he_ said '·'The 'strength of this nation is w~al:cned more by those who suppress the freedom oi oLier• than by those who are allowed freely to think and act as their ccnscience< . di<:tate." Moreover, I may poiot out that the interpretation which. I am at:fept[ng does not in any \\ ay whittle down or affect the power of the State to detain v..ith -a \':c\'• to meeting a situat!on arisiI?g out of the emergency. Parliament cJn ahvays prescribe a suitab!e ma~i­ mum period as interpreted by m, ond authorise detention for th: (!) 274 u,s. 380. (2) 325 U.S •. 376 861i duration of such 'maximum period'.

1f at the end of such 'maximum period' when the person detained is released, it is found that, havfog regard to the relevant circumstances then existing, it 1-:; stiH necessary to detain him, the detaining authority can once again place him under detention provided of course-and that would be an important safeguard-that if the case falls within cl. ( 4), sub-cl. (a), the Advisory Board gives an opinion that there is sufficient cause for such further detention . . I am, therefore, of the view that since it cannot be predicated with any ·definiteness in the present case as to when the c1ncrgcncy would come to an end, the period prescribed by s. 13 of the Act cannot be said to be 'maximum period' within the meaning of sub-cl. (b) of cl. ( 7). The result is that the Parliament has not ;>resciibcd the maxim"m period of detention as contemplated under sub-cl. (b) oi cl. (7), anU if that be so, no person can b~ detained under the previsions of th~ Act for a period longer than three months.

I \<OUld accordingly allow these petitions and order the retitioners ·to i1c set at liberty forthwith since a period of three m0nths has already elapsed in the ca&e of each of them since the date 0f pis detention. ORDER Iu accordance with the opinion of the majority, the contentions of petitioners are over-ruled. The petitions be listod before the appropriate Bench for disposal. P.B.R.