Chekuri Narayana Raju. v. The Chief Secretary to the Government of Madras.
1951-02-01
CHANDRA REDDI, GOVINDA MENON
body1951
DigiLaw.ai
Chandra Reddi, J.-This petition is presented by one Chekuri Narayana Raju under Article 226 of the Constitution challenging the validity of an order passed by the Government of Madras under section 3 (1) of the Preventive Detention Act (IV of 1950). The petitioner herein was originally detained on 13th March, 1948, by an order passed under the Madras Maintenance of Public Order Act. Subsequently when the latter Act was considered to be inconsistent with the Articles of the Constitution and when Act IV of 1950 was passed by the: Parliament, the State of Madras passed an order directing the detention of the petitioner under Act IV of 1950 with a view to prevent him from acting in a manner prejudicial to the “security of the State and the maintenance of public order and this was communicated to him immediately. A few days later, the petitioner was furnished with the following grounds of detention: "1. He started the Communist Volunteer Corps at Palacole during the last week of November 1947 and was training about 30 members in drill, parade and lathi exercises, holding classes, spreading revolutionary ideas and creating class hatred. He underwent training as an instructor in drill, parade, lathi exercises, etc., along with 29 others at Ellore in the ‘Officers’ Training Centre organised by the West Codavari District Communist party from 6th to 18th.January, 1948. 2. He is a member of the Communist party which has been banned by the Government of Madras Hinder the Criminal Law Amendment Act from 26th September, 1949. The underground Communists all over the State still indulge a subversive activities such as loot, arisen, murder, throwing of bombs, etc. The general situation is therefore unsettled and the recent underground circulars and wall-posters by the communists indicate their determination to take advantage of the prevailing conditions and incite the labourers, working classes and kisans to cause damage to public institutions to attack police’ stations, prisons, etc., and to try to obtain power by violence. Recent literature seized from the communists also indicate that they are collecting weapons including bombs and revolvers for use on these occasions. 3. The grounds set forth in paragraph 1 will show that Sri Chekuru Narayana Raju is likely to indulge in engineering and executing the violent programme of the communists.
Recent literature seized from the communists also indicate that they are collecting weapons including bombs and revolvers for use on these occasions. 3. The grounds set forth in paragraph 1 will show that Sri Chekuru Narayana Raju is likely to indulge in engineering and executing the violent programme of the communists. An order of detention has therefore been passed with a view to preventing hint from acting in a manner prejudicial to the security of the Stale and the maintenance of public order.“ He was also Informed by this communication that if he wished to make any representation he could do so within fifteen days of the receipt of the memorandum of grounds. The petitioner submitted his written representation denying the correctness of the grounds and challenging the validity of that order. The State Government after reviewing his case passed an order, dated 7th June, 1950, continuing his detention. Hence the petitioner has approached this Court for the issue of a writ of habeas corpus directing the State Government to release him from detention. The main grounds upon which this petition is founded are that the grounds of detention furnished to him are vague and indefinite, that they have no relation either to the security of the State or to the maintenance of public safety, either of which grounds alone would entitle a State Government to detain a citizen under section 3 of the Preventive Detention Act and that neither of the two grounds mentioned in the memorandum communicated to him indicate how the petitioner’s being at large would affect either the security of the State or maintenance of public safety, and that lastly, the grounds do not disclose any present connection between the order of detention now impugned and the materials on which this order is based. The argument on behalf of the petitioner is that since he has been in detention ever since 13th March, 1948, he could not have indulged in any activity calculated either to affect the security of the State or the maintenance of public order, and that the detaining authority in 1950 could not fall back upon the grounds that are said to have existed prior to 13th March, 1948, and therefore there could be no valid ground to continue his detention.
Section 3(1) of the Preventive Detention Act lays down that: ”the Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to,......(ii) the security of the State or the maintenance of public order . . . . . it is necessary so to do, make an order directing that such person be detained." Under section 7 of the Act the Government concerned is required to communicate to the detenu the grounds on which the order has been made and afford him the earliest opportunity to make a representation to that Government. Under subsection (2) of section 7 the detaining authority is not bound to disclose facts which it considers to be against the public interest to disclose. It must be mentioned that section 7 of the Act is in consonance with Article 22, clause (5) of the Constitution. Clause (5) of Article 22 is in the following words: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." It is manifest that the object of these two provisions is to enable the detenu to know the basis upon which he is detained and to make a representation to the concerned authority refuting the charges if they are unfounded. On the first point the contention argued on behalf of the petitioner by Mr. Ramachandran, his learned counsel, is that inasmuch as the particulars of the grounds of his detention were not communicated by the detaining authority, that order should be quashed. In support of his argument, he relied upon a decision of the Calcutta High Court in Safatulla Khan v. Chief Secretary, West Bengal Government1, a decision of a Division Bench of the Orissa High Court in Kulamoni v. The State2 . a decision of the same Bench in Ananta Charan v. The State3, and on a ruling of a single Judge of the Allahabad High Court in Asha Ram v. The State4.
a decision of the same Bench in Ananta Charan v. The State3, and on a ruling of a single Judge of the Allahabad High Court in Asha Ram v. The State4. In Safatulla Khan v. Chief Secretary, West Bengal Government1, it was held that the Court can order the release of a detenu if the grounds of detention served on him are vague and indefinite and not precise enough to enable him to make an effective representation to the appropriate authority. At page 197, Harries, C.J., observes: "The authorities are bound to disclose the grounds and they cannot suggest that it is against public interest not to disclose the grounds. It appears to me that there is a clear difference between grounds and facts. The grounds are the bases of the allegations. The facts really are the evidence upon which the bases of the allegations are to be established, e.g., in pleading a party must give particulars of allegations, but he is not required to give his evidence. If he makes an allegation he must state the basis of that allegation, but he need not state how he is going to prove such basis." In that case it was found that the grounds were very vague and the detenu was not furnished with sufficient information which placed him in a position to send an effective reply, and therefore there was no sufficient compliance with the provisions of clause (5) of Article 22. Though we agree that if the grounds of detention are very vague and indefinite so as to render the object of furnishing the grounds nugatory the order may bet set aside, we cannot subscribe to the view that the detaining authority is under an obligation to disclose to the detenu the basis of the allegation, i.e., the particulars of the allegations on which the detention is made. We do not think the detaining authority is bound to state the facts on which the grounds or the allegations are based. If the detaining authority is required to give the particulars of the grounds, the effect of clause (6) of Article 22 will be reduced to a zero. We do not consider that what clause (6) of the Article entitles the detaining authority is only to refrain from disclosing to the detenu the evidence of the allegations as postulated by the learned Judges in that case.
We do not consider that what clause (6) of the Article entitles the detaining authority is only to refrain from disclosing to the detenu the evidence of the allegations as postulated by the learned Judges in that case. One can understand the force of the contention if the Courts are empowered to scrutinise the grounds so as to determine the reasonableness or otherwise of these grounds. It is now well settled that the satisfaction contemplated in section 3 of the Preventive Detention Act is that of the detaining authority and since that section has provided only for a subjective standard and not an objective standard of satisfaction we do not see why the particulars of the reasons for detention should be furnished to the detenu. Dealing with the argument in Gopalan v. State of Madras5, that section 3 of the Preventive Detention Act does not provide an objective standard to enable a Court to see whether the requirements of law have been complied with or not, the Chief Justice of India observed at page 191: "It is clear that no such objective standard of conduct can be prescribed, except as laying down conduct tending to achieve or to avoid a particular object. For preventive detention action must betaken on good suspicion. It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period. As observed by Lord Finlay in The King v. Halliday1, a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion, exist warranting the restraint on a person. The contention is urged in respect of preventive detention and not punitive detention. Before a person can be held liable for an offence it is obvious that he should be in a position to know what he may do or not do and an omission to do or not to do will result in the State considering him guilty according to the penal enactment. When it comes however to preventive detention, the very purpose is to prevent the individual not merely from acting in a particular way but, as the sub-heads summarized above, show, from achieving a particular object.
When it comes however to preventive detention, the very purpose is to prevent the individual not merely from acting in a particular way but, as the sub-heads summarized above, show, from achieving a particular object. It will not be humanly possible to tabulate exhaustively all actions which may lead to a particular object." In the same case with reference to the argument advanced on behalf of the petitioner therein that section 3 of the Act is unreasonable in that it places a citizen at the mercy of the executive authority, Fazl Ali, J., says at page 226 as follows: "The administrative authorities who have to discharge their responsibilities have to come to. quick decisions and must necessarily be left to act on their own judgment. This principle is by no means unreasonable and it underlies all the preventive or quasi-administrative measures which are to be found in the Criminal Procedure Code.....Therefore I do not find anything wrong or unconstitutional in section 3 of the Act." Repelling the argument based on section 12 of the Preventive Detention Act not complying with the requirements of clause (7) of Article 22. Patanjali Sastri, J., observes in the same case at page 243: "The argument loses sight of the fact that clause (7) deals with preventive detention which is a purely precautionary measure which ‘must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof’. The remarks i have already made with reference to the absence of any objective rules of conduct in section 3 of the impugned Act apply also to this criticism of section 12 It would be difficult, if not impracticable, to mention the various circumstances, or to enumerate the various classes of cases exhaustively in which a person should be detained for more than three months for preventive purposes, except in broad outline. Suppose a person belongs to an organisation pledged to violent and subversive activity as its policy. Beyond his membership of the party the person might have done nothing until he was arrested and detained But if released he might indulge in anything from the mildest form of prejudicial activity, like sticking an objectionable handbill on a hoarding, to the most outrageous acts of sabotage.
Beyond his membership of the party the person might have done nothing until he was arrested and detained But if released he might indulge in anything from the mildest form of prejudicial activity, like sticking an objectionable handbill on a hoarding, to the most outrageous acts of sabotage. How could the insertion in section 12 of a long series of categories of aggravated forms of prejudicial activities, or the enumeration of the various circumstances in which such activities are likely to be indulged in be of any assistance to. the detaining authority in determining whether the person concerned should be detained for three months or for a longer period? All that would be necessary and sufficient for him to know for coming to a decision on the point is that the person is a member of such an organization and will probably engage in subversive activities prejudicial to the security of the State or the maintenance of public order or, in other words, he belongs to clause (b) in section 12. In Dr.N.B. Khare v. The State of Delhi2, one of the questions that fell to be considered by the Supreme Court was whether the grounds for externing the petitioner therein were insufficient or incomplete so as to render the order of externment unsustainable. The grounds stated in that case were as follows: "Your activities generally and particularly since the recent trouble in East and West Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi, feelings are roused between the majority and minority communities, your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, 11 is considered necessary to order you to leave Delhi." Meeting the argument advanced on behalf of Dr.
Khare based on the insufficiency or the incompleteness of the grounds, the learned Chief Justice of India remarked: "Apart from being vague, I think that these grounds are specific and if honestly believed can support the order." In Ashutosh Lahiry v. State of Delhi3, the Supreme Court held that the only condition under which the detaining authority could exercise its powers of detention is its satisfaction as to the matter specified in the Preventive Detention Act and a Court cannot substitute its own satisfaction for that of the authority making the order of detention. On these authorities and on a careful examination of the provisions of sections 3 and 7 of the preventive Detention Act and clauses (5) and (6) of the Article 22 of the Constitution, we have come to the conclusion that grounds of detention cannot be said to be vague and indefinite for the reason that they do not contain the basis of those grounds. It will be reading too much into section 7 of the Preventive Detention Act, or clause (5) of Article 22 of the Constitution to hold that the detaining authority is bound to disclose the basis of the allegations. As already stated by us the intendment of the provisions of law contained in section 7 as well as in Article 22 of the Constitution is to provide the affected person with an opportunity to make a representation and the rule of law enacted in these two provisions is complied with when the grounds are communicated. As regards the ruling in Kulamoni v. The State1, we think it has no application to the facts of this case. There the detenu was first arrested under section 107 of the Criminal Procedure Code, but no proceedings were started under that section. He was next detained for three months by the District Magistrate, but before that period expired, the Chief Secretary revoked that order and passed an order of detention making it effective from an earlier period. The complaint of the detenu was that the State Government of Orissa did not act bona fide in taking him into detention. Having regard to the circumstances and the background, the learned Judges agreed with the contention put forward on behalf of the petitioner and directed his release.
The complaint of the detenu was that the State Government of Orissa did not act bona fide in taking him into detention. Having regard to the circumstances and the background, the learned Judges agreed with the contention put forward on behalf of the petitioner and directed his release. The other decision of the same Bench, Ananta Charan v. The State2, has absolutely no bearing on this part of the case but we shall refer to it later in connection with another branch of the argument advanced on behalf of the petitioner. Asha Ram v. State3 does not help the petitioner very much. There the main question to be considered by the learned Judge was whether the ground, viz., that the activities of the detenu were calculated to lead to a breach of the peace was sufficient to bring his case under section 3 of the Preventive Detention Act. It was held there that the ground tor detention did not relate either to the security of the State or to the maintenance of public order as it could not be said that a breach of the peace is necessarily connected with either the security of the State or maintenance of public order. The learned Judge observed that the words “breach of the peace” are very vague and it could not be necessarily inferred from these words that the detaining authority had in mind a breach of the public order, and that even an attempt to commit an affray or an assault would constitute breach of the peace. No doubt there are some observations in that case regarding the particulars to be furnished to the detenu which might lend some colour to the argument of the counsel, but for the reasons already mentioned we cannot agree with them. We may also state here that in the representation made to the appropriate authority by the petitioner herein, he did not complain of the grounds being vague or indefinite or not being precise to enable him to send an effective representation. We are not mentioning this as materially affecting the decision on the question before us, but only to show that he was not really prejudiced by the so-called vagueness or indefiniteness of the grounds and there is not much force in that contention.
We are not mentioning this as materially affecting the decision on the question before us, but only to show that he was not really prejudiced by the so-called vagueness or indefiniteness of the grounds and there is not much force in that contention. We come next to the contention that it was not open to the State Government for detaining the petitioner herein in 1950 to fall back upon the grounds that existed prior to his original detention in March 1948. In support of this contention reliance was placed on a ruling of the Bombay High Court in In re S.V. Ghate4. In that case the petitioner was detained by an order passed by the Commissioner of Police in 1948. After the Preventive Detention Act (IV of 1950) came into force, an order was passed under the provisions of the latter Act with a view to prevent him from acting in a manner prejudicial to the security of the State of Bombay and the maintenance of public order. A question was raised whether in view of the fact that no new grounds were alleged for the continuance of the detention of the petitioner therein and that during the period he was incarcerated he could not have indulged or could indulge in any prejudicial activity, the detaining authority could proceed on the material which it had prior to his detention in 1948. Learned Chief Justice Chagla who delivered the judgment on behalf of the Bench answered it in the negative and observed as follows (at p. 165). “It is not sufficient that some other authority in 1948 thought that the detention of the petitioners was necessary. There must he a reasonable apprehension in the mind of the detaining authority that if the petitioner was not detained on 26th February, 1950, he would act in a prejudicial manner. Therefore in that sense the materials which were present before the detaining authority in 1948 may not be sufficient to lead the detaining authority in 1950 to the same conclusion as arrived at by the other detaining authority.
Therefore in that sense the materials which were present before the detaining authority in 1948 may not be sufficient to lead the detaining authority in 1950 to the same conclusion as arrived at by the other detaining authority. The detaining authority must examine the materials afresh and although the past activities of the detenu may afford a ground for detention to the detaining authority examining the materials he must review those past activities in the context of the time at which he is making the order.” Further down it is stated that: “It is not open to the detaining authority in 1950 to fall back upon the satisfaction of the detaining authority in 1948.” We feel that we cannot accept the proposition that the past acts of a man would not furnish safe criteria of the likely future activities of a person. The learned Judge himself expresses at page 165 that: “It would be very difficult to lay down at what point of time a particular activity of a particular person ceases to furnish any connection with the subsequent order directing him to be detained and we refuse to express any opinion that necessarily a period of two years would lead the Court to come to the conclusion that there could be no connection whatever between the activities of a detained person two years prior to the making of the order and the apprehension felt by the detaining authority.” The last observations indicate that the learned Judges thought that it could not be postulated that the past acts would not offer a basis for a fresh order of detention. In our opinion, to judge the likelihood of a person or his propensities to indulge in activities prejudicial to the security of the State or maintenance of public order, regard can be had to the antecedents of the man. The executive authority which is responsible for the security of State and the maintenance of public order would he taking risks by releasing the detenu and allowing him an opportunity to indulge in violent subversive activities. We think that the previous conduct of a detenu or his association with an organization which is conspiratorial and organised to reach ends which are detrimental to the safety of the State and maintenance of public order and which use methods which are incompatible with our constitutional system can determine the rationality of a fresh order.
We think that the previous conduct of a detenu or his association with an organization which is conspiratorial and organised to reach ends which are detrimental to the safety of the State and maintenance of public order and which use methods which are incompatible with our constitutional system can determine the rationality of a fresh order. In this view we are fortified by the ruling of a Division Bench of the Orissa High Court in Ananta Charan v. The State1, relied on by the counsel for the appellant as supporting his argument. The following passage occurs at page 28: “We are not inclined to accept unconditionally that the past acts of a man are not safe criteria of his propensities and likely future activities; on the other hand, if he belongs to a particular group of political agitators whose ideals to subvert the present established Government by producing confusion and chaos in the society for the purpose of unbalancing the same and by various other activities of revolutionary character are well-known, it would not be unreasonable for the administrative authorities to consider the detention of such persons as necessary to prevent them from acting in a manner prejudicial to the maintenance of the public order.” The observations of the learned Judges of the Supreme Court in Gopalan v. The State of Madras2, also lend support to the view we have taken of this branch of the argument. We therefore feel that we cannot give effect to this argument either. Lastly, we have to consider whether the grounds relied on by the detaining authority have any relation to the security of the State or maintenance of public order. What is urged by Mr. Ramachandran is that since affiliation to the Communist organization is not illegal, which is the second ground alleged by the State Government, and since the activities of the petitioner mentioned in the first paragraph of Exhibit C do not show how they affect the security of the State or the maintenance of public order, We should set aside the order of detention as neither of the grounds would bring the petitioner’s case within the purview of section 3 of the Preventive Detention Act. In support of this branch of his argument he referred us to the decision in Lakshmi Narayana, In re1.
In support of this branch of his argument he referred us to the decision in Lakshmi Narayana, In re1. In that case on a difference of opinion between Horwill and Balakrishna Ayyar, JJ., it was referred to Satyanarayana Rao, J. The learned Judge agreeing with the view taken by Horwill, J., stated that the ground for the detention that the detenu was clandestinely purchasing and importing from outside sulphur, graphite, saltpetre and potassium and smuggling them to communists’ camps in Hyderabad State would not be sufficient to constitute a danger to public safety and maintenance of public order. This ruling does not advance the case of the petitioner. Our attention was also drawn by Mr. Ramachandran to another opinion of our learned brother Satyanarayana Rao, J., which again was expressed by him on a difference of opinion between Horill and Balakrishna Ayyar, JJ., in Crl. M.P. No. 838 of 1949 (unreported). This also does not touch the point to be decided by us. There the petitioner was released in 1949 after he presented an application under section 491, Criminal Procedure Code attacking the legality of the order of detention and notice thereof was served on the Government. Immediately thereafter the Government passed an order of detention stating that the applicant was likely to act in a manner prejudicial to public safety and maintenance of public order and with a view to preventing him from so doing. Having found that the order of detention passed in 1948 could not be justified and therefore the Government was obliged to release him, the learned Judge agreeing with the view taken by Horwill, J., observed that the subsequent order passed by the Government for the detention of the petitioner therein was not a bona fide one and was intended merely to circumvent the provisions of the Act and justify a detention which was illegal at its inception by this circuitous method. On the other hand a decision of the Federal Court in Machindar. Shivaji v. The King2, would meet the argument advanced on behalf of the petitioner. Dealing with the contention that an association with the Communist party which has not been banned would not afford a ground of detention, Patanjali Sastri, J., observes as follows: “We cannot accede to this contention.
Shivaji v. The King2, would meet the argument advanced on behalf of the petitioner. Dealing with the contention that an association with the Communist party which has not been banned would not afford a ground of detention, Patanjali Sastri, J., observes as follows: “We cannot accede to this contention. While mere belief in or acceptance of any political ideology may not be a around for detention under the Act, affiliation to a party which is alleged to be spreading its”doctrine of violence rendering life and property insecure and trying to seize power by violence“may, in certain circumstances, lead to an inference that the person concerned is likely to act in a manner prejudicial to the public safety, order or tranquillity. The fact that the party had not been outlawed is immaterial, that being a matter of expediency.” The point there arose in connection with the detention of a person under a different enactment. However since the question raised is the same, we think the passage quoted above is apposite to our case and the principle laid down there governs the present case. No doubt a person cannot be deprived of his liberty merely because he belongs to a political organization whose ideologies differ from the party in power, but when the aims and objects of the party are to create confusion and to threaten injury to society Which the Government has a right to protect and they are sought to be achieved by resorting to violence and terror, the Government would well be justified in detaining a person who has identified himself with that party and who is instrumental in carrying out such a programme and who is likely to resort to activities calculated to prejudice the security of the State and the maintenance of public order in pursuance of the aims of such a party. In the present case even apart from the general ground of the petitioner’s affiliation to a political organisation whose avowed objects are said to be the overthrowing of Government by subversive and terroristic activities, we have no hesitation in coming to the conclusion that the activities of the petitioner-mentioned in paragraph (1) of Exhibit C have a relation to the security of the State and the maintenance of public order and would therefore constitute a sufficient ground for detaining the petitioner under the Preventive Detention Act.
In these circumstances the only conclusion we can come to is that the order of detention of the petitioner is perfectly legal and justified and do not call for interference. We therefore reject this petition. V.P.S. ----- Petition dismissed.