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Preventive Detention Act (IV of 1950), ss. 3, 7, 10-14.-Validity-Constitution of India, 1950, Arts. 13, 19 to 22, 32-Law relating to preventive detention-Whether infringes Fundamental Right as to freedom of movement-Whether subject to judicial review as to reasonableness under Art. 19 (5)-Scope of Art. 19- Right of free movement and Right to personal liberty, nature and incidents of-Art. 22 whether complete code as to preventive detention-Scope and applicability of Art. 21-"Law," "procedure established by law," meanings of-Whether include rules of natural justice-Construction of Art. 21-American decisions on due process of law value of-Omission to provide objective standard for satisfaction of authorities, to provide for oral hearing or leading of evidence, to fix maximum period of detention, and to specify "circumstances" and "classes of cases" where period of detention may be extended over 3 months, prohibiting detenu from disclosing grounds of detention-Validity of law-Construction of Constitution -Reference to· debates and Report of Drafting Committee - Permissibility. The Petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied under Art. 32 of the Constitution for a writ of habeas corpus and for his release from detention, on the ground that the said Act contravened the provisions of Arts. 13, 19, 21 and 22 of the Constitution and was consequently ultra vires and that his detention was therefore illegal Held, per KANIA C.J ., PATANJALI SASTRI, MUKHERJEA and DAs JJ. (FAZL ALI and MAHAJAN JJ. dissenting) - that the Preventive Detention Act, 1950, with the exception of Sec. 14 thereof did not contravene any of the Articles of the Constitution and even though Sec. 14 was ultra vires inasmuch as it contravened the provisions of Art. 22(5) of the Constitution,·'" this section was severable from the remaining sections of the Act, the invalidity of Sec. 14 did not affect the validity of the Act as a whole, and the detentiopn of the petitioner was not illegal.FAZL ALI and MAHAJAN JJ.-Section 12 of the Act was also ultra, vires, and since it contravened the very provision in the Constitution under which the· Parliament derived its competence to enact the law, the detention was illegal. Held, by the Full Court (KANIA C. J.,FAZL ALI, PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAs JJ.) -Section 14 of the Preventive Detention Act, 1950, contravenes the provisions of Art 22 ( 5) of the Constitution in so far as it prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made or the representation made by him against the order of detention, and is to that extent ultra vires and void. Per KANIA C. J., PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAs JJ. (FAZL ALI J. dissenting).-Article 19 of the Constitution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub-cls. (a) to (e) and (g) in general, and sub-cl. (d) in particular, of cl. (I) of Art. 19 may be restricted or abridged ; and the constitutional validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in cl. ( 5) of the said Article.DAs J.-Article 19 ( 1) postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom of his person by reason of lawful detention as a result of a conviction for an offence or otherwise he cannot claim the rights under sub-cls. (a) to (e) and (g) of Art. 19 (1); likewise if a citizen's property is compulsorily acquired under Art. 31, he cannot claim the right under sub-cl. (f) of Art. 19 ( 1) with respect to that property. In short the rights under sub-cls. (a) to (e) and (g) and where lawful detention begins and therefore the validity of a preventive detention Act cannot be judged by Art. 19 (5).MAHAJAN J.-Whatever be the precise scope of Art. 19 (1) (d) and Art. 19 (5) the provisions of Art. 19 (5) do not apply to a law relating to preventive detention, inasmuch as there is a special self-contained provision in Art. 22 regulating it.FAZL ALI J .-Preventive detention is a direct infringement of the right guaranteed in Art. 19.(1) (d), even if a narrow construction is placed on the said sub-clause, ' and a law relating to preventive detention is therefore subject to such limited judicial review as is permitted by Art. 19 ( 5).Per KANIA C. J., PATANJALI SASTRI, MUKHERJEA and DAs JJ. (FAZL ALI J. dissenting).-The concept of the right "to move freely throughout the territory of India" referred to in Art. 19 (1) ( d), of the Constitution is entirely different from the concept of the right to "personal liberty" referred to in Art. 21, and Art.19 should not, therefore, be read as controlled by the provisions of Art. 21. The view that Art. 19 .guarantees substantive rights and Art. 21 prescribes the procedure is incorrect.DAs. J.-Article 19 protects some of the important attributes of personal liberty as independent rights and the expression "Personal liberty" is used in Art. 21 as a compendious term including within its meaning all varieties of rights which go to make up the personal liberties of men.FAZI ALI J.-Even if it be assumed that Art. 19 (1)(d) does not refer to "personal liberty" and that it bears the restricted meaning attributed to it, that is to say, it signifies merely the right to move from one locality to another, preventive detention must be held to affect this limited right of movement directly and substantially. One of the objects of preventive detention is to restrain a person detained from moving from place to place so that he may not spread disaffection or indulge in dangerous activities in the places he visits. The same consideration applies to the cases of persons who are interned or externed. Hence, externment, internment and certain other forms of restriction on movement have always been treated as kindred matters belonging to the same group or family, and the rule which applies to one must necessarily apply to the others.Per KANIA C. J., PATANJALI SASTRI and DAs JJ. (MAHAJAN J. dissenting),_:_Article 22 does not form a complete code of constitutional safeguards relating to preventive detention. To the extent that provision is made in Art. 22 it cannot be controlled by Art. 21; but on points of procedure which expressly or by necessary implication are not dealt with by Art. 22, Art. 21 will apply. DAs J.-Art. 21 protects substantive rights by requiring a procedure and Art. 22 lays down the minimum rules of procedure that even the Parliament cannot abrogate or overlook. MAHAJAN J.-Art. 22 contains a self-contained code of constitutional safeguards relating to preventive detention and cannot be examined or controlled by the provisions of Art. 21. The principles underlying Art. 21 are however kept in view in Art. 22 and there is no conflict between these articles. MUKHERJEA J .- Even assuming that Art. 22 is not a self.-contained code relating to preventive detention and that Art. 21 would apply, it is not permissible to supplement Art. 22 by the application of rules of natural justice. FAZL ALI J.-Art. 22 docs· not form an exhaustive code by itself relating to preventive detention. Parliament can make further provisions and if it has done so Art. 19 (5) may be applied to see if those provisions have transgressed the bounds of reasonableness.Per KANIA C. J, MUKHERJEA and DAs JJ. (FAZL ALI J. Dissenting).-in Art. 21 the word "law" has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense': embodying the principles of natural justice; and "procedure established by law" means procedure established by law made by the State, that is to say, the Union Parliament or the Legislatures of the States. It is not proper to construe this expression in the light of the meaning given to the expression "due process of law" in the American Constitution, by the Supreme Court of America. PATANJALI SASTRI J.-'-"Law~ .in Art. 21 docs not 'mean the jus naturale of civil law but means positive or state made law. "Procedure established by law" 1950 does not however mean any procedure which may be prescribed by a competent legislature, but the ordinary well-established criminal procedure, i.e., those settled usages and normal modes of procedure sanctioned by the Criminal Procedure Code, which is the general law of criminal procedure in this country. The only alternative to this construction, if a constitutional transgression is to be avoided, is to interpret the reference to "law" as implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment .that could modify or override a fundamental right without contravening Art. 13 (2). FAZL ALI.-There is nothing revolutionary in the view that "procedure established by law" must include the four principles of elementary justice which inhere in and are at the root of all civilized systems of law, and which have been stated by the American Courts and jurists as consisting in (1) notice, (2) opportunity to be heard, ( 3) impartial tribunal and ( 4) orderly course of procedure. These four· principles are really different aspects of the same right, namely, the right to be heard before one is condemned. Hence the words "procedure established by law", whatever its exact meaning be, must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal. Per KANIA C. J.,FAZL ALI., PATANJALI SASTRI, MAHAJAN and DAS JJ.-Section 3 of the Preventive Detention Act, 1950, does not delegate any legislative power to an executive officer but merely confers on such officer a discretion to enforce the law made by the legislature, and is not therefore invalid on this ground. The fact that tbe section does not provide an objective standard for determining whether the requirements of law have been complied with, is not a ground for holding that it is invalid. FAZL ALI.-Section 3 is however a reasonable provision only for the first step, i.e., for arrest and initial detention and must be followed by some procedure for testing the so-called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention _is made and considering the representations of the persons detained in relation to those grounds. Per KANIA C. ]., MAHAJAN and DAs JJ.-Scction 7 of, the said Act is not invalid merely because it does not provide for an oral hearing or an opportunity to lead evidence but only gives a right to make a representation. Right to an oral hearing and right to give evidence are not necessarily implied in the right to make a representation given by Art. 22.Per KANIA C. J. and MAHAJAN J,-The provision contained in Sec. 11 that a person may be detained for such period as the State thinks fit does not contravene Art. 22 (7) and it is not therefore invalid.Per ~KANIA C. J., PATANJALI SASTRI, MUKHERJEA and DAs JJ, (FAZL ALI and MAHAJAN Jj. dissenting).- Article 22 (7) means that Parliament may prescribe either the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without reference to an advisory board. It is not necessary that the Parliament should prescribe both. The matters referred to in clauses (a) and (b) of sub-sec. (1) of Sec. 12 constitute a sufficient description of such circumstances or classes of cases and Section 12 is not therefore open to -the objection that it does not comply 'With Art. 22(7). Das J.-Parliament has in fact .and substance prescribed both in clauses (a) and (b) of sub-sec. (1) of Sec. 12FAZL ALI and MAHAJAN JJ.-Article 22 (7) means that both the circumstances and the class or classes of cases (which are two different expressions with different meanings and connotations) should be prescribed, and the prescription of one without the other will not be enough. The enumeration of the subjects for reasons connected with which a law of preventive detention could be made contained in cls. (a) and ( b) of sub-sec. (I) of Sec. 12 does not amount to prescribing the circumstances under which, or the class or classes of cases in which, a person can be detained for more than three months. Per KANIA C. J .-While it is not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a referance to the debates may be permitted. PATANJALl SASTRI J~In construing the provisions of an Act, speeches made in the course of the debates on the bill should not be taken into consideration. MUKHERJEA J.-In construing the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee |
