Madras High Court
Sree Latha vs The Secretary To Government on 21 September, 2007
Bench: P.K. Misra, K. Mohan Ram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21/09/2007 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA THE HONOURABLE MR. JUSTICE S.K. KRISHNAN AND THE HONOURABLE MR. JUSTICE K. MOHAN RAM HABEAS CORPUS PETITION No.1138 of 2006 Sree Latha W/o. Sakthikumar .. Petitioner Vs. 1. The Secretary to Government Public (SC) Department Government of Tamil Nadu Fort St. George Chennai 600 009. 2. The District Collector Kanchipuram District (Chenglepet District) Kanchipuram. 3. The Inspector of Police C.C.B. Thousand Lights Chennai 600 006. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Habeas Corpus calling for the records in relation to the detention order communicated in the telegram dated 12.8.2006 by the 3rd respondent based on G.O.No.SR/GO/1673/3/2006 dated 2.8.2006 and quash the same and direct the respondents to produce the body of detenu Sakthikumar, son of Ponniah before this Court and set him on liberty forthwith from the Special Camp to Srilankan refugees at Chenglepattu. For Petitioner : Mr.K. Jayakumar For Respondents : Mr.R. Viduthalai, Advocate General Assisted by Mr. Babu Muthu Meeran Amicus Curiae : Mr.B. Kumar, Senior Counsel O R D E R
P.K. MISRA, J This matter was referred to a larger Bench to resolve the conflict between the Division Bench decisions of this Court.
2. The conflicting decisions in question are 1995-2-L.W.(Crl.) 690(2) (KALAVATHY, ETC. v. STATE OF TAMIL NADU & OTHERS), hereinafter referred to as Kalavathy's case, and 2003-1-L.W.(Crl.) 352 (YOGESWARI v. THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVT., PUBLIC (SC) DEPARTMENT, CHENNAI AND ANOTHER), hereinafter referred to as Yogeswari's case). In a later unreported decision of the Division Bench in HCP.No.1038 of 2003 (PREMAVATHY @ RAJATHI v. STATE OF TAMIL NADU) dated 14.11.2003, the Division Bench without referring the matter to a larger Bench, followed Kalavathy's case and observed that Yogeswari's case was not correctly decided as it had not noticed the fact that the ratio of Kalavathy's case had received the imprimatur of the Supreme Court.
3. The contentions raised by the counsel for the petitioner and by Mr.B. Kumar, Senior Counsel, who has been appointed as Amicus Curiae, are to the following effect:
(1) The Special Camp established by the State Government was previously a Sub Jail at Chengelpat and even though it is now described as a Special Camp, in effect it amounts to a jail, which is guarded by armed policemen round the clock, inmates are locked up in cells between 6.00 P.M. and 6.00 A.M., and they cannot go out of the Special Camp during the day time, however, the relatives can visit them during the day time after obtaining permission from the Tahsildar. It is therefore submitted by the learned counsel appearing for the petitioner and the Senior Counsel appearing as Amicus Curaie that the order passed is in effect an order under Section 3(2)(g) rather than an order under Section 3(2)(e).
(2) It is further submitted that a Division Bench of the Madras High Court in 2003-1-L.W.(Crl.) 352 (YOGESWARI v. THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVT., PUBLIC (SC) DEPARTMENT, CHENNAI AND ANOTHER) under similar circumstances held that such an order regarding confinement in the Special Camp would amount to order of preventive detention and can be passed only in accordance with the provisions contained in the National Security Act, 1980 and Section 3(2)(e) of the Foreigners Act will have no applicability to such a case.
4. Mr.R. Viduthalai, Advocate General, representing the State, on the other hand, submitted that the decision of the Division Bench reported in 2003-1-L.W.(Crl.) 352 (cited supra) can no longer be considered as operative in view of the subsequent Division Bench decision of this Court in HCP.Nos.1038 of 2003 & other connected matters disposed of on 14.11.2003. It is further submitted by him that in the earlier Division Bench decision of the Madras High Court reported in 1995-2-L.W.(Crl.) 690(2) (KALAVATHY, ETC. v. STATE OF TAMIL NADU & OTHERS) it was indicated that a special refugee camp cannot be termed as an internment camp. It is further submitted by the Advocate General that the said decision was challenged before the Supreme Court in Special Leave Petition, but such S.L.P having been dismissed, it must be held that the ratio of the said decision was approved by the Supreme Court and, therefore, binding on the Madras High Court as well as other Courts in India being the law of land as declared under Article 141 of the Constitution of India.
5. In 1995-2-L.W.(Crl.) 690(2) (cited supra), orders had been passed in exercise of power under Section 3(2)(e) of the Foreigners Act directing that the persons concerned, who were of foreign origin, were to reside within the special camps established for the foreigners. The camp was guarded by armed policemen round the clock. Inmates of the camp could be visited by the relatives under supervision, but were not allowed to go outside and such inmates were kept inside the cells during night. The main contention raised was to the effect that such order actually amounted to confinement of the foreigners and therefore the order could be passed only by the Central Government under Section 3(2)(g) of the Foreigners Act and not under Section 3(2)(e) of such Act. The contention on behalf of the State was to the effect that the order in effect imposed condition on the foreigner requiring him to reside in a particular place subject to certain restriction on his movements and, therefore, came within the scope of Section 3(2)(e) of the Foreigners Act.
6. The Division Bench held inter alia :
"15. We are unable to accept this contention, "Place" has not been defined under the Foreigners Act. However place has been defined under Section 2(p) of the Code of Criminal Procedure, to include a house, building, tent, vehicle and vessel. Section 100, Cr.P.C. refers to inhabitants of the locality. Law Lexicon states the "Place" certainly does not mean "geometrical point of space or the earth". It must mean "area" having length and breadth. "An area" defined by specified boundaries and described otherwise to delimit its ambits is known as "a place". There is nothing to indicate, that the word "place" is either as big or as small as a town, village, market place or otherwise. The word "place" has been used to denote certainty rather than "size". "Locality" according to Law Lexicon, is a definite region in any part of space. "Locality" is a place with an area which is reasonably small and compact so that, it has come to exist and be treated as one unit, a reference to which sufficiently identifies the area and the persons therein: Ordinarily, the unit which has acquired a name by which it is referred and understood. Locality has been interpreted, not to mean the same quarter, but inclusion of places even 3 or 4 miles, of the place of search. Locality need not mean, that person should be living, within a stone's throw of the house, to be searched. It is therefore, abundantly, clear, that the word "place" contemplated under Section 3(2)(e), is different from the word "locality", the latter being broader in concept. The learned Public Prosecutor submitted that the Special Camp, Saidapet has an area of 10,000 square feet. The special camp, Saidapet, can therefore, certainly be a particular place, contemplated under Section 3(2)(e)(i) of the Act. Mr.B. Kumar was able to realise the possible difference between a place and locality and hence, conceded, that the special refugee camp can be termed as a "Particular place". If that be so, under Section 3(2)(e) of the Act, the State Government does have the power, to require foreign nationals, not only to reside in a particular place, as a special refugee camp, but also have power to impose restrictions, on their movements. Power, to pass orders under Section 3(2)(e) of the Act, indisputably has been delegated by the Central Government to the State Government. We are unable to agree, that the foreigners involved in these writ petitions, have been arrested and detained or confined. Only certain limited restrictions have been made in their movements and place of residence. A special refugee camp cannot be termed as an internment camp. If that be so, the argument that the impugned orders must be deemed to have been made under Section 3(2)(g) of the Act cannot survive. Similarly, the protection sought under Article 22(4) of the Constitution also, cannot exist, since the said Article deals with protection against arrest and detention in certain cases."
7. It appears that the Division Bench decision in the aforesaid case was challenged in the Supreme Court by filing SLP, but such SLP was not entertained. Following the judgment in Kalavathi's case, another Habeas Corpus Petition raising similar contentions was filed, which was rejected on 29.3.1995. Such matter was challenged before the Supreme Court in SLP (Crl) No.369 of 1996 in CHINNAPILLAI v. STATE OF TAMIL NADU & ANOTHER. Such petition was rejected by the Supreme Court after hearing the counsels for the petitioner as well as the respondents by order dated 14.3.1996. The said order is extracted hereunder:
"The petitioner is a Sri Lankan citizen. Although, he has been ordered to be released on bail by the Court, he has been lodged in a Special Refugee Camp. He has been lodged in the Camp since he does not have the necessary travelling documents.
In support of his contention that the judgment in a Refugee Camp does not amount to detention, the learned counsel for the State of Tamil Nadu cited Kalavathy etc. vs. State of Tamil Nadu etc. 1995(2) L.W. (Crl.) 690. He further states that the special leave petition against the judgment of the Madras High Court has already been dismissed by this Court. In this view of the matter, we see no ground to interfere. The special leave petition is dismissed."
8. Thereafter a similar question was again raised in the decision reported in 2003-1-L.W.(Crl.)352 (cited supra), whereunder the foreign national was directed to stay in a Special Camp for Srilankan Refugees at Chengelput in the purported exercise of power under Section 3(2)(e) of the Foreigners Act. It was contended before the Division Bench inter alia that the order amounted to preventive detention and such order of preventive detention could be passed only under the National Security Act which has the effect of repealing similar provisions contained in the Foreigners Act including the provisions contained in Section 3 of such Act. It was observed:
"12. Article 21 of the Constitution of India which protects the life and personal liberty and Article 22(4) which provides safeguards against preventive detention shall apply to any person, whether a citizen or not. Therefore, where a person's liberty is taken away, or if he is made an intern, after the coming into force of the Constitution, such an order depriving the person of his liberty must comply with the requirement of Articles 21 and 22(5) of the Constitution. When the National Security Act, 1980 empowers the authorities to pass an order under Section 3, specifically in reference to a foreigner, with a view to regulate his continued presence in India and which complies with the Constitutional requirements, the power under the Foreigners Act, 1946 cannot be availed of. Apart from the fact that Foreigners Act, 1946 is a pre-Constitutional Act, which is not in consonance with the fundamental rights guaranteed to any person and when such person comes under the special enactment namely the National Security Act, 1980 on the same subject matter, the power cannot be availed of by the authorities under the Foreigners Act. Therefore, even assuming that internment is not a detention, the requirement to reside at a particular place set apart should be in consonance with Articles 212 and 22(4) of the Constitution. It follows that there should be sufficient safeguard for such an order in conformity with Articles 21 and 22(4) of the Constitution.
13. The National Security Act, 1980, being a special latter enactment, alone can hold the field and the power within the latter enactment with all its restrictions could be invoked and maintained. It is not justifiable on the part of the Government to invoke Section 3(2)(e) of the Foreigners Act, 1946 only to avoid the latter Act for the purpose of regulating the continued presence of a foreigner.
14. A distinction is made between the internees held under Section 3(2)(g) of the Foreigners Act, 1946 and the internees held under Sub-section 2(e) of the Act. Insofar as the latter category of foreigners are concerned, they are to reside at a place set apart for residence. In this case, the facts that the detenu was ordered to remain in the Special Camp which was previously a sub-jail and that he was kept there inside a cell and was allowed limited movement outside the cell during day time is a clear case of confinement, for which there is no order under Section 3(2)(g) of the Act. There was no order under the National Security Act, 1980 either. Hence, there is a restriction amounting to detention. Therefore, the argument that the court should lean against the implying repeal does not arise for consideration in the facts of this case."
In connection with the Division Bench case in Kalavathys case, it was observed that in the said case the question relating to the effect of the National Security Act, 1980 had not been considered. The decision in Kalavathy's case was also distinguished factually on the ground that the persons concerned in Kalavathy's case had close links with L.T.T.E. and had posed a danger to the security of the State and therefore the ratio of the said decision should not be applied to other foreigners.
9. Subsequently, a similar matter came up for decision in HCP.No.1038 of 2003 (PREMAVATHY @ RAJATHI v. STATE OF TAMIL NADU), hereinafter referred to as "Premavathy's case, and other connected matters, which were disposed of by a Division bench on 14.11.2003. The Division Bench in this case observed that the ratio of Kalavathy's case that an order relating to residence of foreigners within a special camp did not amount to detention had been specifically approved by the Supreme Court in Chinnapillai's case and therefore the ratio of such decision must be considered as law declared by the Supreme Court and therefore should be followed.
10. In the background of the aforesaid judicial decisions, the main contention of the learned counsel for the petitioner is to the effect that the question relating to detention of a foreigner with a view to regulate his movement in India is squarely covered under Section 3 of the National Security Act, which being a later Act in the same field, must have the effect of impliedly repealing the provisions contained in the Foreigners Act, particularly the provisions contained in Section 3, including Section 3(2)(e).
11. In order to appreciate the questions involved, it is first necessary to notice various relevant statutory provisions. The order impugned has been passed under Section 3(2)(e) of the Foreigners Act, 1946 (hereinafter referred to as "the Foreigners Act". The said Act was enacted to confer upon the Central Government certain powers in respect of the entry of foreigners into India, their presence therein and their departure therefrom.
As per Section 2(a) "foreigner" means a person who is not a citizen of India. Section 3(1) empowers the Central Government to make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein. This can be done by making order. Section 3(2) lays down that in particular and without prejudice to the generality of Section 3(1), orders made under Section 3 may provide certain things as specifically indicated in sub-clauses. Section 3(2)(e) & (g) to the extent relevant are extracted hereunder:
"3(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner -
(e) shall comply with such conditions as may be prescribed or specified -
(i) requiring him to reside in a particular place;
(ii) imposing any restrictions on his movements;
(iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;
(iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;
(v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;
(vi) prohibiting him from association with persons of a prescribed or specified description;
(vii) prohibiting him from engaging in activities of a prescribed or specified description;
(viii) prohibiting him from using or possessing prescribed or specified articles;
(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;"
(f) . . .
(g) shall be arrested and detained or confined;
and may make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act."
Section 3(3) is to the following effect :
"3(3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) or clause (f) of sub-section (2)."
In exercise of power conferred under Section 3 of the Foreigners Act, the Central Government prescribed the Foreigners Order, 1948, hereinafter referred to as "the Foreigners Order". Under clause 2(2) of the Foreigners Order "civil authority" means such authority as may be appointed by the Central Government in this behalf for such area as it thinks fit. Under clause 11 of the Foreign Orders, the civiil authority may direct that the foreigner shall comply with such conditions as may be specified in respect of his place of residence, his movements, etc. The Central Government has delegated its power under Section 3(2)(a) to (f). However, power under Section 3(2)(g), which was introduced subsequently in 1962 has not been delegated thereafter.
12. Section 3(1) of the Foreigners Act is by very nature of things is a general power conferred on the Central Government to make provisions by way of order. In other words, it is an enabling provision empowering the Central Government to make orders. Such orders can be made either generally or with respect to all foreigners or even with respect to any particular foreigner or any prescribed class or description of foreigner. Such orders can contain provisions prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein. Section 3(2) is without prejudice to the generality of the power contained under Section 3(1). Clause (e) envisages inter alia that by such order conditions may be prescribed or specified requiring the foreigner to reside in a particular place or imposing any restrictions on his movements.
13. A careful reading of Section 3 makes it clear that it gives power to the Central Government to frame subordinate legislation in the shape of statutory orders which could be general or particular in nature and may be in respect of foreigners or in respect of any individual foreigner. Clause (g) envisages that the order made under Section 3 may provide that the foreigner shall be arrested and detained or confined. It is not in dispute that power under Section 3(2)(a) to (f) has been delegated whereas power under Section 3(2)(g) which was included by amendment later on has not been subsequently delegated.
14. The main question is therefore whether the order passed by the State Government directing the husband of the petitioner to remain within the Special Camp amounts to an order of detention or confinement as envisaged in Section 3(2)(g) of the Act. In this context, the submission of the learned counsel for the petitioner to the effect that the provisions contained in Section 3(2), particularly Section 3(2)(e) can be said to be impliedly repealed by the provisions contained in the National Security Act, is required to be considered at the threshold.
15. The National Security Act is an Act to provide for preventive detention. Section 3 contains power to make orders detaining certain persons. As per Section 3(1)(b), the Central Government or the State Government may if satisfied with respect to any foreigner, with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do make an order directing that such person be detained.
16. A perusal of the aforesaid provision makes it clear that such order of detention can be passed with a view to regulating the continued presence of a foreigner in India or with a view to making arrangements for his expulsion from India. The Central Government or the State Government, as the case may be, is required to come to the conclusion that is is necessary to do so. The specific power envisaged under Section 3(2)(e) appears to cover many other facets rather than detention of a foreigner. Under sub-clause (i) of Section 3(2)(e), a condition can be imposed requiring the foreigner to reside in a particular place. Under (ii) restriction can be imposed on his movement. The other sub clauses in Section 3(2)(e) refer to various other aspects which are distinct from the aspect of detention of such foreigner. Therefore, it cannot be said that Section 3(2) of the National Security Act which contemplates detention of a foreigner with a view to regulate his continued presence in India or with a view to making arrangements for his expulsion from India cannot be said to be in any way inconsistent with the provisions contained in Section 3(2)(e) of the Foreigners Act. If at all there is any inconsistency, it can be said that the provisions contained in Section 3(2)(g) relating to arrest and detention of a foreigner can be said to be covered by the provisions contained in the National Security Act. However, the contention in this case is not that Section 3(2)(g) should be held to be implied repealed by the National Security Act. The specific contention is to the effect that the provisions contained in Section 3(2)(e) of the Foreigners Act shall be deemed to have been repealed by the provisions contained in the National Security Act. This latter contention, according to in our opinion, is not acceptable. Since there is no specific contention relating to Section 3(2)(g), it is not necessary to express any final opinion on this aspect.
17. The allied contention of the Senior Counsel is to the effect that an order directing a foreigner to stay in a special camp with condition that he has to remain in the cell from 6.00 P.M. to 6.00 A.M and cannot go beyond the camp, which is within a defined area guarded round the clock by armed police amounts to detention or confinement and, therefore, such power can be exercised only under Section 3(2)(g) and not under Section 3(2)(e) of the Foreigners Act.
18. In order to appreciate his contention, it is necessary to consider whether the order directing a foreigner to stay in a special camp with restriction in not allowing such person out of the camp and forcing him to stay in a cell during night can be considered as detention or confinement as envisaged under Section 3(2)(g) or would only amount to condition requiring him to reside in a particular place as envisaged under Section 3(2)(e)(i) and imposing any restriction on his movements as envisaged under Section 3(2)(e)(ii). In order to appreciate this contention, it is necessary to notice the contents of Section 4. Section 4(1) envisages that an internee shall be detained or confined in such place and manner and subject to such conditions as to maintenance, discipline the punishment of offences and breaches of discipline as the Central Government may determine. Under Section 4(1), in respect of whom an order under Section 3(2)(g) is in force directing him to be detained or confined in such place is known as an internee. On the other hand, under Section 4(2), any foreigner in respect of whom an order under Section 3(2)(e) is made requiring him to reside at a place, is known as a person on parole. As per Section 4(2) such a place can be set apart for the residence of number of foreigners and it shall be under supervision. Section 4(2) also envisages that such foreigners while residing at a place set apart shall be subject to such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Central Government may determine.
19. According to Concise Oxford Dictionary, 10th Edition, the expression confine means, to keep or restrict someone or something within certain limits of space. In a general sense, directing a foreigner to remain within a Special Camp and not allowing him to move out of such Special Camp may amount to his confinement within such Special Camp as such person is to remain within certain limits of space. However, it can be also said to be compatible with Section 3(2)(e)(i) and (ii) inasmuch as the foreigner is asked to reside in a particular place, namely, the Special Camp, along with further imposition of restriction in his movement in the sense that his movement is restricted within the space available in the Camp during day time and he is further restricted to a particular cell during night time. Section 4(2) contemplates that any foreigner, a person on parole may be subjected to other conditions as to discipline.
Having regard to all these aspects, we are unable to accept the submission made by the petitioner and, in our considered opinion, the Division Bench decision of this Court in 1995-2-L.W.(Crl.)690(2) (KALAVATHY, ETC. v. STATE OF TAMIL NADU & OTHERS) had been correctly decided.
We are also unable to accept as correct the ratio of the subsequent decision in 2003-1-L.W.(Crl.) 352 (YOGESWARI v. THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVT., PUBLIC (SC) DEPARTMENT, CHENNAI AND ANOTHER) as such an order directing a foreigner to stay within a Special Camp with certain inevitable restriction regarding on his movement would amount to an order of preventive detention as envisaged under the National Security Act, 1980 and an order of arrest and detention or confinement within the meaning of Section 3(2)(g) of the Foreigners Act. Though it would have been more appropriate for the subsequent Division Bench in the unreported decision in Premavathy's case to refer the matter to a larger Bench for resolving such conflict, the ultimate conclusion was correct. Since we have approved the ratio of the decision in Kalavathy's case, it is not necessary to consider in detail the submission of the learned Senior Counsel that the Supreme Court in SLP had merely rejected the petition without laying down any particular principle of law, though prima facie the observation made in Premavathy's case that the ratio of Kalavathy's case had received the approval of the Supreme Court appears to be justified.
Matter shall be listed before the appropriate Division Bench for disposal.
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