Haradhan Saha & Another v. the State of. West Bengal & Ors.

Judgment

ORIGINAL JURISDICTION: Writ Petitions Nos. 1999 & 1913 of 1973. Petitions under Article 32 of the Constitution of India .. R. K. Garg, S. C. Agarwala, S. S. Bhatnagar and V. J. Fra11cis, for the Petitioners (in both the Petitions). P, K. Chatterjee, and G. S. Chaterjee, for the Respondents. L. M. Singhvi and S. M. Jain for the Applicant/Intervener (The State of Rajasthan) L. N. Sinha, Solicitor Gen. of India, P. P. Rao and R. N. Sachthey; for. the Attorney General for India. The Judgment of the Court was delivered by RAY, C.J. The constitutional validity of the Maintenance of Internal Security Act, 1971 being Act No. 26 of 1971 is challenged in these petitions. First, it is said that the law of preventive detention is unreason- ·. F able, and, therefore, it violates Article 19. Second, it is said that tha Act vioMes Article · 21 because the guarantee of a right to be heard is infringed.

Third, it is said that the Act does not lay down the just procedure for giving effect to Article 22(5). Fourth, it is said c that the Act violates Article 14 because it permits discrimination: The Act confers power on the Central Government or the Stato Government to make orders directing detention of persons. Section 3 of the Act provides that when the Central Government or the State . Government is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the · defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance 11 of public order, or C.ii) the maintenance of supplies and services essential to the community, District Magistrates, Additional District Magistrates or Commissioners of Police can pass orders of detention. H. SAHA V. WEST BENGAL (Ray, CJ.)

781 --- The Act provides in sub-sections (3) 'alld ( 4) of section 3 that when any order is m•do for detention the officer shall forthwith report the fact to the Sta>~ Gc-;·errunent with the grounds on which th<> order has been mack er.;· s:><:h c;her particulars as in his opinfon hav<> a bearing on th;! ;:,at~1. . Further no order shall -remain in force for more than twelve days Utter the making· thereof unless in the meantime it has been approved by the State Government.

The proviso to sub-section ( 3) states that where ·under section 8 the groundS · of detention are communicated by the authority making the order after live days but not later than fifteen days from the date of detention, this sub-section shall apply subject to the modifiC'ation that for 'the words "twelve days", the words "twenty-two days" shall . be sub- . stituted. · When ally order is made· or approved by the State Government, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been inade _and such other particulars oas in the opinion of the State Gcivemment have a bearing.on the necessity for the order.

Section 7 ·of the Act states that if the Central Government or the State Government or an officer specified in sub-section (2) of section 3 of_ the Act has reason to believe that a pets on ·in respect of whom a detention order Iras been ·made has absconded or is concealing himself, a report in writing is to be made to the Presidency Magistrate or a Magistrate of the first class. Thereafter the provisions of sections 87, 88 and 89 of the Code of Criminal Procedure 1898 (DDW the corresponding sections. in the 1973 Act) shall apply in respect of.the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate.

An order can also be passed directing such person to appear and if he fails to comply with the directions he shall unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer ·of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisol)ment for a term ·which may extend to one year or with fine or with both. Section 8 provides that when a person is detained the authority making theorder shall, as soon as may be,- but ordinarily not later than five days and in exceptional circumstances not later than fifteen days; from the .d•ate of detention, communicate to ~im the ground ~:m which the order has -been made and shall affcrd him the opportunity ·of. making a representation against the order to the appropriate Government. The G~vernment constitutes one or more Advisory Boards.

The Board shall consist of ;hree persons who are, or have been, or are qU"alified. to be appointed as, Judges of a High Court. The appropriate· Government shail appoint one of the members of the A~visory _Board who is, or has been, a Judge of the High Court t_o be its Chair'!'"!1· A detention order is to be placed ibefore the Advisory Board within 30 days fiom the date of detention under the order. The grounds' [1975] 1 s.c.R .. of ~etention, the representation made by the person concerned and A • • · the report· of the officer making tho order shall be placed before the Advisory Board. These are the provisions of section 10 of the Act . .

The Advisory Bc•ard under section 11 of the Act shall, after considering the materials placed before jt and, after calling for such · further information as it· may deem necessary from the appropriat~ Government or from any person called for the purpose through. the appropriate Government or fmm the person concerned and if, in any particular case, it considers it essential so to do or if the person concerned desi[es to be heard, after bearing him in person, submit its . report to the appropriate Government within 10 weeks from the date of detention. The report of the Advisory &ard shall specify in a separate part therecil' the opinion orthe Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. If here is a difference of opinion of the Advisory Board, the opinion of the majority of such members shall be Jeemed to be the opinion of the Board.

A person against whom detention order has been made is not entitled to appear by a legal practitioner before the Advisory Board. · Under section 12 of the Act where the Advisory Board has reported that there is sufficient cause for the detention of a person, th<:> appropriate Government may confirm . the detention order 'lllld continue the detention of lbe person concerned. It the Advisory Board . reports that there is no sufficient cause for detention the appropriate Government shall· revoke the detention order. · Section 14 provides that without prejudice to the. provisions of section 21 of the General Clauses Act, 1897 a detention order may, at any time, be revoked by the appropriate Government. Section 15 provides that the appropriate Government mav. at anv time, direct the release of any person detained without conditions or. upon such conditions specified in the direction. The Government . may lllso cancel his release.

In the background o! these provisions of the Act the petitioners contend as follows : The Act does not provide for an objective determination of the· facts which are the foundation of a · decision for detention. The opportunity to make a representation cannot be reasonable if the order does not disclose the material on the basis of which the demining authority arrives at a conclusion that grounds for detention exist.· The representation cannot be reasonable if the detenu has no opportilnity to test the truth of. the materials relied on for detention. The Act does not define or lay down the standards for objective assessment of the grounds for detention. The Act does not oblige the Government to consider ·the representation against detention and decide every detention on facts and on law against grounds _communicated to the deteitu. In short, it is sald that the order of detention should set out all the materials on the basis of which the appropriate Government comes H. SAHA V. WEST BENGAL (Ray, C.J.) to a conclusion that it is necessary to delllin a· person.

Mere recital in the order !ha( with a view to preventing a person from acting in any ·manner. prejudical to the defence of Indra, the relations of India with foreign powers, or the secur)ty of India, or the security of the State or. the maintenence of public order, or the maintenance of supplies 'and services essential to the community does not enable the person detained . to attack the grounds for detention and to prove by material in rebuta! his innocence by consideration of the representation. The petitioners contend that the Act permits detention for two years and even until the expiry of the period of proclamation of emergency and therefore it is ail unreasonable reitriction in violation of Article 19 without 11 six monthly review with a judical approach.

With · regard to the report of the Advisory Board ir is said that the reasons for rejecting representation must be available to the person detained · This is said to be necessary to enable the person detained to come up before the Court for judicial review and in aid of his right to liberty. The petitioners, therefore, contend that the law of preventive detention is unreasonable, in violation of Article 19 inasmuch ·as the order of detention can be passed on acts sought to be prevented which acts are not defined. I( .is said that the power is so unguided that acts forbidden and acts not forbidden by law are treated ·alike to be the foundation for detention. The petitioners contend that Article 21 is violate.ct. because a detenu is not given the right to be heard on all facts and circumstances. 'The petitioners submit that whether deprivation of liberty is punitive or preventive, the right to be heard is guaranteed by Article 21.

The. petitioners contend that Article 22 is violated br the Act because it does not provide for impartial and judicial consideration o1 the representation by the Government. The Act merely reproduces the' language of Article 22 which cieates a.fetter on the power of t~ legislature. This Act does not provide any machinery and just prooedure for giving effect to Article 22(5). The acts sought to be prevented and which are ·mentioned as grounds for detention are not defined. Therefore pow~r is unguided and un·bridled.· The Act JS so framed by reproducing Article 22(5) that nothing is shown to spell out the requirements of procedure available in a reasonabl~ m:rnnor to ensure fair play and justic,, against grounds communicated and not withheld under Article 22 ( 6) .. Finally, the petitioners contended that section 3 of the Act violated Article 14 because it permits the same offence to be a ground far detention in different and discriminatory ways.

The petitioners sub.- . mit that A may be prosecuted but not detained prevenfr>elv or B may not be prosecuted but q:ily detained preventively or C may be prosecuted and also detained preventively. · The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to [ 197 5] I S.C.R. prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and· preventing him by detention from doing the same. A criminal conviction on the ·other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecu· . tion in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act.

In OJll' case a person is punished to prove his guilt and the standard is proof beyonll reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent. · Constitution has conferred rights under Article 19 and also adopt· ed preventive detention ·10 prevent the greater evil of elements imperil· ling the security, the safety of a State and the welfare of the Nation.

It is not possible to think that a person who is detained will yet be free to move or assemble or.'Jorrn association or unians' or have the right to reside in any part of India or have the freedom of speech or expression. · Suppose a person is convicted of an offence of cheating and prosecuted after trial, it is not open to · say · that the imprison,· ment should be tested with reference to Article 19 for its reasonable· ness. k !aw which attracts Article 19 therefore· must be such as is capable of being tested to be reasonable under clauses (2) to (5) of Article 19. This Court in A. K. Gopala11 · v. The State of Madras [1950] S.C.R. 88 .held that Article 22 is a complete code and Article 19 is not invoked in those cases.. It is now said that the view in Gopalan's case (supra) no longer holds the field after the decision in the Bank Nationalisation case (1970] 3 S.C.R. 530.

In the Bank Nationalisation case (supra) this Court· held that Article 31 (2) is not a complete protection for acquisition of property by the two tests of .authority of law and compensation. This Court said that the direct impact of such an act of acquisition might invade rights under Article 19, and, therefore, the acquisition could be t<;sted as to whether it was· a reasonable restriction on the rights guaranteed under Article 19. Article 19(1)(£) deals with the right - - to acquire. hold and dispose of property. It is apparent .that after a person's .property has been acquired by the State he cannot acquire, hold or dispose of the same property. In the Bank Nationalisation case (supra) it is said that the acquisition which left. the Banks free to do business other than banking. was rendered unreasonable by reason of· the Banks being deprived of the wherewithal ·to carry on the business.

The right guaranteed under Article 19(1 )(g) to carry on any occupation, trade or business were therefore held to be directly invaded bv the nationalisation of Banks. It is in this context that the Bank Nationalisation case (supra) held that in spite of Artide . 3t(2) the acquisition of pro~rty di1ectly impinged on the right of the. Banks to carry on busmess other than Banking guaranteed Sl{AMSHBR SINOR v. ?UNJAB (Rely, C.J.) under Article 19(1)(a;) and Articlo 31(2) was not a protection against infrini:ement of that prantoed right. Wo may procood on tho assumption that the Act which ill for preventive detention may be tested with regard to its reasonablenees with reference to Article 19. ScctioJl 3 of the Act is to be interpreted in tho light of various existina; Statutes which deal with tho various actll mentioned in section 3. Acts i;ought to be prevented are tound in various lea;islations like tho Essential Commodities Act, the Bsicn· \ tial Services Act.

It iB not necessary that. tho person to be detained •hould havo actually committed a crime or a f?rbidden act. In some cascs tho person who has not already committed a crimo is likely to commit an act to prevent which section 3 provides for detention of •uch a person. Somo times it may be possible that an act which is not forbidden by law may fall within the ambit of section 3. Such cl!Ses may be dealing with relations of India with foreign powers or maintenance of public .order. Tho Preventive Detention Act of 1950 was considered by this Court and it is an established rule of this Court that a detenu has a right to be apprised of all tho materials on which the order of detention is based or approved. The only exception is as provided in clauses (6) and (8) of Article 22 whero it is not necessary to discloso facts which may be considered to be against the public intecest to disclose. The representation of a detenu is to be considered.

There iB an obligation on tho State to consider tho representation. The Advisory Board has adequate power to examine the entire materials. The Board can also call for more materials. The Board may call the dotenu at his request. The constitution of tho Board shows that it i• to consist of Judges or persons qualified to be Judges of the Hi&:h Court. The constitution of tho Board observes tho fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must ho an oral hearin&. · Section 8 of tho Act which casts an obligation on •be State to consider the representation alfords the detonu all tbe rights wbicb are guaran• teed by Article 22 ( 5) . The <rovernment considers tho representa• lion to ascortain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considered whether in the light of the representation: there is sufficient cause for detention.

The representation is to be considered by the Advisory Boarcl by following the substance of natural justice as far as it is consistenf witb the nature or the impugned Act. the nature or the relative iurisdiction of tho Oover11D1ent and of the Advisory Board. Procedural roasonablenoss for natural iustico fl.ows from Article 19. Article 22 ( 5) speaks of liberty and m.aldn~ of representation. The combined remit of clauses (4), (5) and (6) of Article 22 is that a procedure whiCh 4-Lt92Sup.CI 75 [J 975] J S.C.R. permits representation will give all. the facts before the Board. Article 22(5) shows that law as to detention is necessary. The requirements of that law are to be found in Article 22. Article 22 gives the mandate as to what will happen in such circumstances. The opinion of the Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. There need not be a speakini order.

There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be a real l\fld proper consideration by the Government and the Advisory Board. Section 14 of the Act clothes the authority with the power of revoking or modifying the; detention order at any time. Such a power c which is for the benefit of the detenu carri_es with it the ~uty to exercise that power whenever and as soon as changed or new factors call for the exercise of that power. This shows that the authorities can consider new factors or changed circumstances. This Court has already held in Fagu Shaw etc. v. State of West Bengal A.I.R. 1974 S.C. 613 that when Parliament prescribed two years or until the expiry of the Defence of India Act,,whichever is later, it satisfied the requirements of Article 22(7) (b) of fixing the maximum period. The further requirement ofa six monthly review a,s contended for by the petitioners suggests a new provision.

That does not go to reasonableness but to policy of legislature and due process of law. Section 8 of the Act follows the provisions of Article 22 (5) of the Constitution. Article 22 ( 5) enjoins upon the detaining authority obligation to afford the detenu earliest opportunity of making a representation against the order. An opportunity of making a representation cannot be equated with an opportunity of oral hearing or hearing before a Court and the procedure of judicial trial. As long as there is an 91lportunity to make a representation against the order of detention and as long as a representation is to be considered by the Advisory Board there is oo unreasonableness in regard to the procedtire. The duty to consider the representation does not mean a personal hearing or the disclosure of reasons. Procedural reasonableness which is invoked by the petitioners cannot have any abstract standard or general pattern of reasonableness.

The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all provide the :basis for considering the reasonableness of a particu- Jar provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions. Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable. At the stage of consideration of representation by the State Government, the obligation of the State Government is such as Article 22(5) implies. S:ection 8 of the Act is in complete conformity with Article H. SAHA v. WEST BENGAL (Ray, CJ.) 78 7 22(5) because this section follows the provisions of the constitution.

If the representation of the detenu is received before the matter is referred to the Advisory Board, the detaining authority considers the representation, If a representation is made after the matter has been referred to the Advisory Board, the detaining authority will consider it before it will send representation to the Advisory Board, Elaborate rules of natural justice are excluded either expressly or by necessary implication where procedural provisions are made in the statute o_r where disclosure of relevant information to an interested party would be contrary to the public interest. If a statutory provision excludes the application of any or all the principles of natural justice then the Court does not completely ignore the mandate of the legislature. The Court notices the distinction between the duty to act fairly and a duty to act judicially in accor- · dance with natural justice.

The detaining authority is under a duty to give fair consideration to the representation made by the detenu but it is not under a duty to disclose to the detcnu any evidence or information. The duty to act fairly is discharged even it !!\ere is not an oral hearing. Fairness denotes abstention from abuse of discretion. Article 22 which provides for preventive detention lays .down substantive limitations as well as procedural safeguards. The principles of natural justice in so far as they are compatible with detention laws find place in Article 22 itself and also in the Act. Even if Article 19 be examined in regard to preventive detention it does not increase the content of reasonableness required to be observed in respect of orders of preventive detention. The procedure in the Act provides for fair consideration to the representation.

Whether in a particular case, a detenu has not been afforded an opportunity of making a representation or whether the detaining authority is abusing the powers of detention can be brought before the Court of Law. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar lo prosecution.

Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prc~e­ cution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. The recent decisions of this Court on this subject are many, The decisions in Borjahan Gorey v. The State of West Bengal reported in A.LR. 1972 S.(;. 2256, Ashim Kumar Ray v. State of West Bengal reported in A.LR. 1972 S.C. 2561, Abdul Aziz v. The Distt. Magistrate, Burdwan & Ors. reported in A.I.R. 1973 S.C. and De bu Mahto v. The State of West Bengal reported in A.LR. 1974 SC. 816 correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand r v. State of Uttar Pradesh & Ors. reported in A.LR. 1974 S.C. 1161 wh1ca is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges.

The principles which can be broadly stated are these. First merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and iriitiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention.

Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be releas~d for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable · prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.

For the foregoing reasons, we are of opinion that the Act does not suffer from any constitutional infirmity In the case of Madanlal Agarwala it is submitted that the detention order was for a collateral purpose because he was released on 26 March 1973 & the detention order was of the same day. It was also said that one incident was said to be the ground in the order of detention and one incident should not suffice for an order of detention. The ground given in Madan Lal Agarwala's case is that he in collusion with his father had hoarded 8 quintals 84 kg. of rice, 2 quintals 88 kg. of flour and 1 quintal 96 kg. of suji and further that he had no licence as required by section 4 of the W~t Bengal Essential Foodstuffs Anti-Hoarding Order, 1966. The detaining authority said in the ground: "It is apparent in the aforesaid facts that you in collusion with your father are likely to withhold or impede supply of foodstuffs or rationed articles essential to the community."

The future behaviour of Madan Lal Agarwala based on his past conduct in the light of surrounding circumstances is the real ground of detention. It is needless to stress the obvious that Madan Lal Agarwala's acts are gravely prejudicial to the maintenance of supplies essential to the community. ll H. SAHA v. WEST BENGAL (Ray, C.J.) It was said in the case of Haradhan Saha that he was released on 25 July, 1973 and he was arrested on 7 August, 1973, pursuant to a detention order_dated 31 July, 1973. It is, therefore, said that the detention order was passed for collateral purposes. The grounds in the detention order are that on 19 June, 1973 Haradhan Sal!a with his associates was smuggling 115 bags of rice weighing 93 quintals 80 kgs. to Calcutta covered by coal by engaging Jorry without any valid permit or authority. Haradhan Saha violated the provisions of West Bengal Rice and Paddy (Restriction on Movement !iy Night) Order, 1969 and West Bengal Rice and Paddy (Licensing and Control)

Order, 1967 and tried to frustrate the food and procurement policy of the Government. These grounds concluded by stating that Haradhan Saha acted in a manner prejudicial to the maintenance of ~upplies and services essential to the community. This again illustrates as to how these detention orders came to be passed to prevent the likelihood of such acts prejudicial to the maintenance of supplies essential to the community. The petitions are therefore dismissed. S.B.W. Petitions dismissed, I