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1975 DIGILAW 517 (MAD)

Kumari v. The Union of India represented by the Secretary to Government, Ministry of Home Affairs, Government of India, New Delhi and others

1975-10-10

P.S.KAILASAM, R.PAUL

body1975
Paul, J.-.This petition for the issue of a writ of habeas corpus or any other appropriate writ, order or direction directing the respondents to produce the detenu V. Balan who has been detained by virtue of an order passed by the Collector and District Magistrate of Chingleput District under section 3 (1) (a) (iii) of the Maintenance of Internal Security Act, 1971, before this Court and set him at liberty, was posted for deciding the question of its maintainability. After giving due notice to the learned Public Prosecutor and also the Standing Counsel for the Central Government we heard the arguments of both sides on the question of maintainability of this petition in view of the amendments newly made to the Maintenance of Internal Security Act. 2. As required under section 16-A (3) of the Maintenance of Internal Security Act, the Collector and District Magistrate of Chingleput made a declaration on 5th August, 1975 to the effect that he, the Collector and District Magistrate was satisfied on the basis of the information and material in his possession at the time of making the order of detention under section 3 (1) (a) (iii) read with section 3 (2) (a) of the Maintenance of Internal Security Act of 1971, and the Maintenance of Internal Security Amendment Ordinance, 1975, against Thiru V. Balan, owner of lorry TND. 736, that the detention of the aforesaid Balan was necessary for dealing effectively with the emergency and that therefore he, the Collector and District Magistrate declared that the detention of Thiru V. Balan under section 3 (1) (a) (iii) of the Maintenance of Internal Security Act was necessary far effectively dealing with the said emergency. This was followed by an order of detention on the same date in which it is stated that the Collector and District Magistrate was satisfied with respect to Thiru V. Balan, owner of lorry No. TND. This was followed by an order of detention on the same date in which it is stated that the Collector and District Magistrate was satisfied with respect to Thiru V. Balan, owner of lorry No. TND. 736 that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it was necessary to make an order directing that the said Thiru V. Balan be detained and that therefore in exercise of the powers conferred by sub-section 2 (a) read with sub-section (1) (a) (iii) of the Maintenance of Internal Security Amendment Ordinance, 1975, he, the Collector and District Magistrate directed that the said Balan be detained and that he be removed to the Central prison, Madras and be detained there. 3. The four grounds on which the detention order has been challenged are the following: (1) That section 16-A of the Maintenance of Internal Security Act is itself invalid; (2) That the detention order is not under the Act but contrary to the Act and is not in accordance with section 16-A (3); (3) There is no nexus between the activities of the detenu and the threat of external aggression or internal disturbance; and (4) the detention order is vague inasmuch as it is left in doubt to which emergency the activities of the detenu relate. 4. Mr. Venugopal on behalf of the detenue has argued that section 16-A of the Maintenance of Internal Security Act is invalid since it clothes the detention with secrecy and that is objectionable in view of the observations of the Supreme Court in A.K. Gopalan v. The State of Madras.1 That was a case under the Preventive Detention Act and the detenu applied under Article 32 of the Constitution for a writ of habeas corpus on the ground that the Act contravened the provisions of Articles 13, 19, 21 and 22 of the Constitution and was therefore ultra vires. The majority judgment held that the Preventive Detention Act with the exception of section 14 thereof did not contravene any of the Articles of the Constitution and even though section 14 was ultra vires inasmuch as it contravened the provisions of Article 22 (5) of the Constitution; as that section was severable from the remaining sections of the Act, the invalidity of section 14 did not affect the validity of the Act as a whole, and the detention of the petitioner was not illegal. It also observed that section 14 of the Preventive Detention Act contravened the provisions of Article 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 sires and void. But then, when Article 22 (5) of the Constitution had been suspended by the Presidential Order, as in the case now before us, the above observations of the Supreme Court with regard to section 14 of the Preventive Detention Act will have no relevance. 5. The argument of Mr. Venugopal is that it is necessary that in the declaration or in the detention order it should be mentioned what were the activities of the detenu which was prejudicial to the maintenance of supplies and services essential to the community or which were detrimental to deal effectively with the emergency. In other words, he contends that it is necessary to incorporate the grounds on which the detention has been made. In other words, he contends that it is necessary to incorporate the grounds on which the detention has been made. But then, it should be remembered that it is only by reason of Article 22 of the Constitution that any person who is detained in custody should be informed of the grounds for such arrest and it is under that Article that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are, 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; or such person is detained in accordance with the provisions of any law made by Parliament under subclause (a) and (b) of clause (7); and it is under that article that any person detained in pursuance of an order made under any law providing for preventive detention should be furnished with the grounds on which the order had been made and shall be afforded the earliest opportunity of making a representation against the order. Even in such a case under Article 22 (6), nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. But when by a Presidential Order, Article 22 had. been suspended there is no question of invoking or applying any of the safeguards provided under that article. We have already held in A.G. Syed Mohideen v. M/s. M.K.M. Abdul Karim and 3 others2, that by reason of the Presidential Order suspending Article 22 (5), pleas on which relief is claimed which are relatable to the fundamental rights specified in the order of the President are inhibited and consequently section 8 of the Maintenance of Internal Security Act which incorporates the safeguards found in Article 22 (5) cannot be invoked by the detenu for challenging the detention order on the ground of contravention of any of those provisions of section 8. 6. 6. In Liversidge v. Sir John Anderson and another1, it was observed as follows: “Where the Secretary of State, acting in good faith under regulation 18-B of the Defence (General) Regulations of 1939 makes an order in which he recites that he has reasonable cause to believe a person to be of hostile associations and that by reason thereof it is necessary to exercise control over him and directs that that person be detained, a Court of law cannot inquire whether in fact the Secretary of State had reasonable grounds for his belief. The matter is one for the executive discretion of the Secretary of State. Therefore in an action by a person detained against the Secretary of State for damages for false imprisonment the Court cannot compel the defendant to give particulars of the grounds on which he had reasonable cause to believe the plaintiff to be a person of hostile associations or that by reason of such hostile associations it was necessary to exercise control over the plaintiff. The production by the Secretary of State of an order of detention, made by him and ex facie regular and duly authenticated, constitutes a defence to such an action unless the plaintiff discharges the burden of establishing that the order is invalid.” 6. In Point of Ayr Collieries Ltd. v. Lloyd George2, was contended on behalf of the appellants the control whose undertaking -was taken and by the Ministry of Food and Power by an order made under the Defence Regulations of 1939 that there was no adequate grounds upon which the Minister could find as he stated he had found, namely, that it was necessary to take control in the interests of the defence of the realm and the efficient prosecution of the war and for maintaining supplies and services essential to the community, but that contention was negatived and it was observed: “It one. thing is settled beyond the possibility of dispute, it is that, in construing regulations of this character expressed in this particular form of language, it is for the competent authority, .........., to decide as to whether or not a case for the exercise of the powers has arisen. It is for the competent authority to judge of the adequacy of the evidence before it... It is for the competent authority to judge of the adequacy of the evidence before it... to judge of the credibility of that evidence......and to judge whether or not....the situation requires an immediate step......and these matters are not within the competence of the Court.” It was further observed: “We do not know what facts there may have been which actuated the Minister in what he did. There was no necessity for him to disclose them because he had a perfectly unanswerable case even on the appellants’ own evidence.” 7. Mr. Venugopal has referred to the observations of the Supreme Court in Rohtas Industries Ltd. v. S.D. Agarwal3, where the Supreme Court had an occasion to consider the scope and interpretation of section 237 (b) of the Companies Act, 1956 which contained the words “If in the opinion of the Central Government there are circumstances suggesting.” The majority of the Judges of the Supreme Court observed that under section 237 (b) of the Companies Act, 1956, the existence of circumstances suggesting that the company’s business was being conducted as laid down in sub-clause (i) or the persons mentioned in sub-clause (it) were guilty of fraud or misfeasance or other misconduct towards the company or towards any of its members, is a condition precedent for the Government to form the required opinion and if the existence of those conditions is challenged, the Courts are entitled to examine whether those circumstances were existing when the order was made; in other words, the existence of the circumstances in question is open to judicial review though the opinion formed by the Government is not amenable to review by the Courts. To the same purport is the decision of the Supreme Court in Barium Chemicals Ltd. v. Company Law Board1. 8. But then it must be remembered that in those two cases the Supreme Court was not considering the scope of any emergency regulation but was considering the scope and interpretation of section 237 (b) of the Companies Act which, as we have pointed out, incorporates these words "If in the opinion of the Central Government there are circumstances suggesting." Such words as "there are circumstances suggesting" are not to be found in section 3 of the Maintenance of Internal Security Act. All that section 3 of the Act says is that the Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the Defence of India, the relations of India with foreign powers, or the security of India, or the security of the State or the maintenance of public order, or the maintenance of supplies and services essential to the community........make an order directing that such person be detained. 9. Secondly, it should be noted that different considerations apply while considering the provisions of an emergency regulation. In an emergency individual liberty is balanced with social interest. Since an emergency demands drastic, immediate measures to meet the imminent peril, the ordinary dimensions of the rights cannot be ensured by the State without detriment to its basic interest. Measures which often have to be enacted hastily to met a grave and pressing national emergency in which the very existence of the State is at stake should be construed more liberally in favour of the State than normal peacetime legislation. It is so even in England In Ronnfeldt v. Phillips2, where the validity of an order made under Regulation 14 of the Defence of the Realm Regulations of 1914 (English Regulations) was challenged, the Court of Appeal held that the regulation dealt with persons who were suspected of acting in a manner prejudicial to public safety and it was enough that the suspicion was honestly entertained and the suspicion need not be reasonable so long as it was honestly entertained. Scrutton, L.J., observed: "The Courts were always anxious to protect the liberty of the subject. They did so both in the intersts of the subject himself and in the interests of the State. In time of war there must be some modifications in the interests of the State. It had been said that a war could not be conducted on the principles of the Sermon on the Mount. It might also be said that a war could not be carried on according to the principles of Magna Carts. Very wide powers had been given to the Executive to act on suspicion in matters affecting the interests of the State. The responsibility for giving those powers rested not with the judges, but with the representat ves of the people in Parliament." 10. Very wide powers had been given to the Executive to act on suspicion in matters affecting the interests of the State. The responsibility for giving those powers rested not with the judges, but with the representat ves of the people in Parliament." 10. In Birulra’s Interpretation of Statutes (5th Edition-1970) at pages 603 and 605, it has been observed that legislations enacted for the purpose of alleviating grave conditions which result from economic disaster and public calamity is deserving of a generous interpretation so that their purposes may be accomplished; and a statute of such nature should be liberally construed. At page 603 of he book, the following observations of Lord Romer have been quoted: "It was, indeed, said on behalf of the appellant in Greene’s case3, that where an act of Parliament is capable of more than one construction, the Courts will adopt that construction which is the least likely to lead to an invasion of the liberty of the subject. That in general is a very salutary rule, but we are dealing here with an Act passed and regulations made under it in times of a great national emergency, and in view of this circumstance and of the objects which that Act and those regulations so plainly had in view, the Courts should, in my opinion, prefer that construction which is the least likely to imperil the safety of this country." Indeed, the Courts have stretched the language of the sections to meet the emergency in the highest interest of the country. 11. In the State of Bombay v. Atma Ram Sridhar. Vaidya1, after holding that under section 3 of the Preventive Detention Act, 19.50, it is the satisfaction of the Central Government or the State Government as the case may be, that is necessary, and if the grounds on which it is stated that the Central Government or the State Government are satisfied have a rational connection with the objects which were to be prevented from being attained the question of satisfaction cannot be challenged in a Court of law except on the ground of mala fide, the Supreme Court observed that the legislation in question in that case was not an emergency legislation, thereby indicating that a different approach has to be made in the case of emergency legislation. 12. Mr. 12. Mr. Venugopal has argued that section 16-A (3) of the Act could be invoked only where the Central Government or the State Government or the officer as the case may be is satisfied after considering whether the detention of such person under this Act is necessary for dealing effectively with the emergency that it is necessary to detain such person for effectively dealing with the emergency the Government or officer may make a declaration to that effect, and that indicates that apart from the satisfaction which should be arrived at under section 3 of the Act there should be a further consideration as to whether the detention of a person under the Act is necessary for dealing effectively and with the emergency and only on being so satisfied on such further consideration the declaration should be made and for such further consideration it is necessary that there should be some grounds and the orders should indicate those grounds and in this case this has not been done. 13. Section 16-A, the provisions of which shall have effect only during the period of operation of the Proclamation of Emergnecy issued under clause (1) of Article 352 of the Constitution on the 3rd day of December, 1971, or the Proclamation of Emergency issued under that clause on the 25th day of June, ] 975, or a period of twelve months from the 25th day of June, 1975, whichever period is the shortest, requires that when making an order of detention under this Act against any person after the commencement of this section, the Central Government or the State Government or, as the case maybe, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency that Government or Officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned: and, in such a case there is no provision for furnishing the grounds of detention; when it is so it is not obligatory or necessary to incorporate either in the declaration or in the order of detention the reasons or the grounds on which the Central Government or the State Government or the Officer was satisfied that it Was necessary to detain the person for effectively dealing with the emergency. Such provisions in section 16-A are certainly valid inasmuch as Article 22 (5) of the Constitution has been suspended by the Presidential Order. Sub-section (5) of section 16-A specifically lays down that in making any......consideration under sub-section (3) the appropriate Government or Officer may, if such Government or Officer considers it to be against public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned and sub-section (4) of section 16-A states that in the case of every person detained under a detention order to which the provisions of sub-section (3). apply, being a person in respect of whom a declaration has been made under that sub-section........sections 8 to 12 of the Act shall not apply, section 8 it might be remembered relates to the furnishing of grounds of order of detention under sections 9 to 12 direct to the advisory board. Therefore, we are not able to accept Mr. Venugopal’s argument that without the mention of the activities of the detenu which rendered it necessary to detain the detenu for dealing effectively with the emergency and without mentioning how the activities of the detenu were prejudicial to the maintenance of supplies and services essential to the community, a declaration or an order of detention under section 16-A cannot be made. Mr. Venugopal next contended that the declaration and the order of detention are both vague, firstly inasmuch as it is not stated in both whether the activities of the detenu were prejudicial to dealing effectively with the emergency proclaimed on 3rd December, 1971 or whether those activities were prejudicial to dealing affectively with the emergency proclaimed on 25th June, 1975 for the declaration merely mentions “the emergency in respect of which proclamation referred to in sub-section (1) of section 16-A of the Act have been issued”, and secondly, the detention order is vague inasmuch as it mentions both maintenance of supplies and services essential to the community and the detenu’s activities as owner of lorry TND 736 would not in any way affect the “services essential to the community”. 14. 14. Sub-section (1) of section 16-A refers to the proclamation of emergency issued under clause (1) of Article 352 of the Constitution on the third day of December, 1971 and the proclamation of emergency issued under that clause on 25th day of June, 1975. Sub-section (3) states that when making an order of detention under this Act against any person including a foreigner, after the commencement of this section, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if on such consideration the Central Government or the Stale Government or, as the case may be, the officer-is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned. It may be noted that in sub-section (3) there is only mention of “the emergency”. It does not refer to any particular emergency. Article 352 (1) of the Constitution says: “If the President in satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by proclamation, make a declaration to that effect”. But it may be noted that the state of emergency could only be one; when once the President makes a proclamation under Article 352 (1) that a grave emergency exists, whereby the security of India or any part of the territory thereof is threatened either by war or external aggression or by internal disturbance, a state of emergency comes into being On 3rd December, 1971 a proclamation was issued under clause (1) of Article 352 on account of the fact that the security of India was threatened by war or external aggression. That proclamation still continues and has not been revolved. Subsequently, on 25th June, 1975 another proclamation was made under clause (1) of Article 352 by the President stating that a grave emergency exists whereby the security of India was threatened by internal disturbance. But it may be noted that the two proclamations did not bring about states of emergency. The state of emergency] is one and the same. Subsequently, on 25th June, 1975 another proclamation was made under clause (1) of Article 352 by the President stating that a grave emergency exists whereby the security of India was threatened by internal disturbance. But it may be noted that the two proclamations did not bring about states of emergency. The state of emergency] is one and the same. But first it was brought about by war or external aggression threatening the security of India and. subsequetly while that state of emergency continued, threat of internal disturbance necessitated another proclamation by the President. The President can make more than are proclamation. But that does not mean that different states of emergency come into being as a result of each proclamation . The state of emergency may be brought about by different causes threat of war or external aggression or internal disturbance and may be continued by reason of such different causes. Each cause does not give rise to a distinct and separate state of emergency. Therefore we are not able to accept Mr. Venugopal’s argument that the declaration should specify to which emergency the prejudicial activities of the detenu relate. 15. Mr. Venugopal next contended that the detenu was a mere lorry owner as it is stated in the declaration and in the detention order and on 4th August, 1974 in response to a notice issued under section 6 (b) of the Essential Commodities Act, he appeared before the Collector in regard to the transport of rice in his lorry; of services essential to the community “but would have only a nexus to” maintenance of supplies to the community. We are not able to accept this argument. In Mohammed Alam v. State of West Bengal1, it has been observed that ‘the expressions “supplies” and “services” are to be construed pragmatically in the context of each case, with due stress on the phrase, “essential to the life of the community.” In a few cases, these expression,may carry a meaning distinct and different from each other. In most cases where the same activity may equally affect “supplies’s” and “services”, the connotations of “supplies” and “services” may coincide or telescope into each other. In most cases where the same activity may equally affect “supplies’s” and “services”, the connotations of “supplies” and “services” may coincide or telescope into each other. If the detenu had indulged in the illegal transport of rice from one area to another that would not only affect the maintenance of supplies of commodities essential to the life of the community but it would also affect the distribution of rice to the people of the State. Such distribution of rice and other essential commodities by the State is a service essential to the community. Therefore, in this case the same activities of the detenu affect both supplies and services and as such the connotations of services and supplies in this case coincide or telescope into each other. 16. It was next contended by Mr. Venugopal that if the detention is not in accordance with section 16-A (3) of the Act, the detenu has a right to personal liberty under natural and common law, for section 18 deprives the detenu of a right to invoke and even if there were materials before the Collector which led him to suspect that the detenu was using his lorry or allowing the use of his lorry for illegally transporting rice from one area to another, that would have no nexus either to the threat of external aggression or of internal disturbance and as such the declaration and the detention order are illegal. But then, if the detenu had been using his lorry or allowing the use of his lorry for transporting rice illegally from one area to another, that act would certainly be prejudicial to dealing effectively with the emergency brought about both by the threat of external aggression or by threat of internal disturbance, for it is essential for the State and it is the duty of the State to maintain “services essential to the community” and to maintain “supplies essential to the community” during such periods of emergency and for maintaining them statutes like the Essential Commodities Act are used and violation of such statutes would definitely be an act prejudicial to dealing effectively with the emergency and there would thus be a definite nexus between such activities of the detenu and the necessity to “deal effectively with the emergency”. 17. Mr. 17. Mr. Venugopal has further argued that the declaration mentions both “maintenance of supplies and services essential to the community”, but even assuming that the detenu was using his lorry for the purpose of transporting rice illegally from one area to another against the provisions of the Essential Commodities Act or the orders made thereunder that would have no connection with the “maintenance natural or common law only” if he is detaied in accordance with the Act. Undoubtedly, it is so. The decision in Mohammed Alam v Stale of West Bengal1, would support this proposition. But we find no grounds at all to hold that the detention in this case is not in accordance with section 16-A (3) of the Act, 18. The last contention of Mr. Venugopal is that the fact that since despite the proclamation of the emergency and the Presidential Order suspending the fundamental rights under Articles 14, 19 and 22 of the Constitution. Parliament being quite aware of the Presidential Order had never the less amended the Act by inserting sub-section (7) of section 16-A, which is to the effect that in the case of every person detained under a detention order to which the provisions of sub-section (3) applied being a person in respect of whom a declaration had been made under that sub-section,sections 8 to 12 shall not apply, indicates that in the case of other persons who are detained under section 3 but in respect of whom the provisions of sub-section (3) of section 16-A have not been applied, sections 8 to 12 would apply. But then we do not think it necessary in this case to consider that argument, for it would have no relevance to the case now before us. 19. In the result, we find that this writ of habeas corbus does not lie and we see no reason to issue a rule nisi and we dismiss this petition.