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2001 DIGILAW 163 (MAD)

Selvi v. State of Tamil Nadu and others

2001-02-12

K.NARAYANA KURUP, P.D.DINAKARAN

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K.Narayana Kurup, J.: The order of detention clamped on the detenu under Sub-sec.(1) of Sec.3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) is under challenge on the ground that the State Government have no power to order the detention of the detenu for a period exceeding three months unless there is a law enacted by Parliament under Art.22(7)(b) and (c) of the Constitution of India. 2. Having heard learned counsel for the petitioner at length, we are afraid we cannot grant our imprimature to the aforesaid contention of the learned counsel for the following reasons: 3. Art.22(4)(a) of the Constitution says that no law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless an Advisory Board has reported before the expiry of three months that here is, in its opinion, sufficient cause for such detention. The proviso to the article provides that nothing in Sub-clause ‘a’ shall authorise the detention of any person beyond the maximum period prescribed under Subclause ‘b’ of Clause 7 of Art.22. By reason of Art.22(4)(b), a person can be detained for longer period than three months without the necessity of consulting an Advisory Board if such a person is detained in accordance with the provisions of any law made by Parliament under Subclauses ‘a’ and ‘b’ of Clause 7 of Art.22. There has been a serious controversity as to whether the expression “maximum period” means that where the detention is intended to exceed two months, (1) Parliament must fix a definite period reckoned in terms of years, months or days, on the expiry of which the detention must terminate; or (ii) it was competent for Parliament to specify the duration with reference to an event or the continuance of a state of affairs, e.g., the duration of a proclamation of emergency, or until the expiry of the D.I. Act. By a majority of 3:2 in Fagu Shaw etc. v. State of West Bengal, A.I.R. 1974 S.C. 613, the Supreme Court has held that the second alternative was also permissible under Art.22(7)(b). By a majority of 3:2 in Fagu Shaw etc. v. State of West Bengal, A.I.R. 1974 S.C. 613, the Supreme Court has held that the second alternative was also permissible under Art.22(7)(b). It has also been held therein that it is not obligatory for Parliament to make a law under Clause (7)(a) in order that Clause (4) might operate; and that it would be competent for Parliament to make laws changing the maximum period fixed by any previous law. (vide Fagu Shaw’s case cited supra para 25-27). 4. Under Entry 3 of list III of the VII Schedule of the Constitution, both Parliament and State Legislatures have plenary power to pass laws for preventive detention in respect of the subject mentioned therein. Incidental to that power, however as an inseparable part of it, Parliament and State legislatures have power to fix the period of detention also. The Court fail to appreciate a situation of conferral of power to pass a law for detention, unless that power carries with it, the ancillary power to provide for the period of such detention. Therefore, both Parliament and state legislature have power under the Entry to provide for detention of person for a specified period. The purpose of Art.22(4) (a) is to put a curb on that power be providing that no law shall authorise the detention of a person for a period exceeding three months unless an Advisory Board was reported within the period of three months that there is sufficient cause for detention and that the proviso means is that even if the Advisory Board has reported before the expiration of three months that there is sufficient cause for detention, the period of detention beyond three months shall not exceed the maxim period that can be fixed by any law made by Parliament under Art.22(7)(b). The proviso cannot mean that even if Parliament does not pass a law fixing the maximum period under Art.22(7)(b), the State legislatures cannot pass a law which provide for detention of a person beyond three months. The period of such detention namely detention beyond the period of three months, would then be a matter within the plenary power of Parliament or State legislatures, as the case may be, as such, a power is incidental to the power to pass a law with respect to the subjects covered by Entry 3 of List III. 5. The period of such detention namely detention beyond the period of three months, would then be a matter within the plenary power of Parliament or State legislatures, as the case may be, as such, a power is incidental to the power to pass a law with respect to the subjects covered by Entry 3 of List III. 5. The language of Art.22(4)(b) is in marked contrast with that of Art.22(4)(a) read with the proviso. Art.22(4)(b) makes it obligatory upon Parliament if it wants to pass a law for detaining a person for a period of more than three months without making a provision in that law for obtaining the opinion of an Advisory Board within three months to comply with Sub-clauses ‘a’ and ‘b’ of Art.22(7). The question whether, when Parliament passes a law under Art.22(7)(b) fixing the maximum period of detention in any class of cases, it is exercising an independent power of fixing the maximum period of detention derived from Sec.7 of Art.22 or a power traceable to the Entries on the subject of preventive detective detention does not arise for consideration in the instant case. 6. In the light of the above discussion, we are not inclined to entertain this petition. Accordingly, the petition is dismissed in limine.