Premavathy @ Rajathi vs State Of Tamil Nadu on 14 November, 2003

[Cites 44, Cited by 7]

Madras High Court

Premavathy @ Rajathi vs State Of Tamil Nadu on 14 November, 2003

This judgment will dispose of H.C.P. Nos.1038, 1111, 1118, 1119, 11 20, 1121, 1122, 1123, 1085, 1170 and 1226 of 2003 as common question of law and also the facts are involved therein. Common arguments were also laid. While H.C.P. Nos.1118, 1119, 1120, 1121, 1122, 1123, 10 85, 1170 and 1226 of 2003 have been argued by Shri B. Kumar, learned senior counsel, Shri P.V.S. Giridhar, learned counsel argued H.C.P. Nos.1038 and 1121 of 2003.

2. All the petitions are in the nature of habeas corpus petitions and seeking the liberty of the petitioners from the Special Camp, Chengalpattu, wherein they are lodged being Sri Lankan refugees and treating them as foreigners under Sec.3(2)(e) of the Foreigners Act. In all the writ petitions, the orders, putting them in the Special Camp, passed by the respondent State Government, are also challenged.

3. All these writ petitioners are the citizens of Sri Lanka and they came to India. There has been a constant influx of Sri Lankan citizens as, the political situation in Sri Lanka had become volatile and unsafe. None of them entered the Indian territory with valid documents and after coming to India they were registered as 'refugees' and were put in the Camps set up for the Sri Lankan refugees along with their families. The present petitioners are, however, directed to be kept in the Special Camp, which is set up at Chengalpattu in what was earlier a Sub Jail. It is a common ground again that practically all the petitioners have been involved in criminal cases. In some of the cases, the investigation is pending while in some others, it is completed and the charge sheet is also filed. In some of the cases, even the trial has commenced. Few of the petitioners are facing the trials for offences under Sec.465, 475 IPC and against one of them even the offence under Sec.489A, 489B, 489C, 489D IPC read with Sec.12(1)(c) of the Passport Act is alleged. Practically, all of them are facing the prosecution under Sec.12(1)(b) and 12(1)(c) of the Passport Act. The allegations against them are of various nature. Few of them have been found to be in possession of forged documents. Some others have been found in possession of fake rubber-stamps of Ramnad and Madurai District Collectors. Some have been found in possession of forged credit cards. Others have been found in possession of forged passports of various countries like Italy, France, Sri Lanka, etc.; some others have also found in possession of fake American Dollars. Some have also been found in possession of jewels purchased by using forged credit cards. They have been picked up from various places in Tamil Nadu. In short, all the petitioners are involved in serious crimes.

4. Few of the petitioners have been ordered to be released on bail while the cases of some others have not reached that stage. But, it is a common ground that all of them are facing the orders passed under Sec.3(2)(e) of the Foreigners Act against them, directing them to stay in the aforesaid Special Camp.

5. Learned counsel have taken a position that such orders and the placement of the petitioners in pursuance thereto in the Special Camp amount to 'preventive detention'. The further common ground is that the constitutional safeguards available to a detenu under the preventive detention have not at all been followed while passing the order of detention and even thereafter. For example, no grounds are stated in the detention; there has been no application of mind; petitioners have not been given an opportunity to mak e representations; nor are their representations considered as required under Art.22 of the Constitution. It is then pointed out that in the garb of placing them in the Special Camp, they are facing a worse lot than the detenus under the preventive detention.

6. It is further commonly argued that their condition in the special camp is pathetic and they have to stay under inhuman conditions. Their personal liberty has been completely ended. Their health condition is pathetic and there is hardly any medical facility to them. The further contention is that they have absolutely no 'privacy' and they are locked up during night time in their cells like prisoners, though they are not 'prisoners' in stricto sensu. It is also pointed out that investigation or the criminal cases pending against them are perpetuated. Even on that count, they are offered subhuman treatment. It is a common argument that they are not allowed to mix at all with the society nor are they allowed to earn their livelihood. They are not even allowed to attend the important functions like marriages, illness of the relatives or death of the near and dear ones. Reference is also made to Article 21 of the Constitution as also to the human rights which are denied to the petitioners.

6.1. It has also been argued that the orders passed under Sec.3(2)(

e) of the Foreigners Act are illegal as before passing these orders, no opportunity whatsoever was given to the petitioners and number of them were picked up without notice.

6.2. Still further limb of the argument is that the delegation of powers under Sec.3(2)(e) of the Foreigners Act was as back as in 1958 and, therefore, the subsequent changes made in law cannot be said to be covered in that delegation and, therefore, the delegation itself has become bad in law.

6.3. It is also reiterated on behalf of the petitioners that in passing the orders in the manner and thereafter incarcerating the petitioners, Articles 9 and 12 declared by International Convention of Civil and Political Rights as also Article 13 declared by Universal Declaration of Human Rights have been breached. The manner in which the orders were passed was also arbitrary and the procedure adopted could not stand to the test of reasonableness contemplated under Art.14 of the Constitution of India and, therefore, the orders were invalidated. On all these grounds, the alleged detention of these petitioners is challenged.

7. A very strong reliance has been placed by the learned senior counsel on the reported decision of the Division Bench of this Court in YOGESWARI v. STATE OF TAMIL NADU (2003-1-L.W.(Crl.) 352), in which the Division Bench of the Court has taken a view that such placement in the special camps amounts to preventive detention and chosen to quash the same on the ground that the constitutional obligations of the State Government vis-a-vis the detention was not followed.

8. As against this, the learned Public Prosecutor/Senior Advocate, Shri I. Subramanian, contends, on the basis of a common counter, that firstly this is an action under Sec.3(2)(e) of the Foreigners Act, which power has been delegated to the State Government by the Central Government. Therefore, this does not amount to preventive detention and there would be no question of following any constitutional obligations under Art.22 of the Constitution. Learned counsel contends that the question whether this amounts to a preventive detention is no more res integra and was already decided by the Division Bench in the reported decision in KALAVATHY v. STATE OF TAMIL NADU (1995(2)L.W. Crl.). He points out further that the Supreme Court had dismissed the Special Leave Petition, challenging the decision in Kalavathy case. Learned counsel further says that the judgment in Kalavathy case, came to be approved by the Supreme Court in another Special Leave Petition wherein after hearing the State Government, the Supreme Court dismissed the Special Leave Petition filed by a person identically circumstanced as these petitioners, giving the reasons. Learned counsel, therefore, says that the Supreme Court has declared a binding law under Art.141 holding that the placement of the foreigners in the Special Camps does not amount to preventive detention. Learned counsel was at pains to point out that in that case also, the concerned petitioner was facing the prosecution and was ordered to be released on bail by court before which he was being prosecuted and yet the Supreme Court did not choose to interfere on the ground that such placement does not amount to preventive detention. Learned counsel further points out that Kalavathy case, cited supra, was specifically brought to the notice of the Supreme Court and it was specifically mentioned and approved in the aforementioned order passed by the Apex Court. He, therefore, submits that the subsequent decision by the Division bench of this Court in Yogeswari case, cited supra, would be of no consequence as it is "per incurium".

9. Learned counsel further points out that even the factual plea laid on behalf of the petitioners are not correct and justified. He points out that each of the petitioner receives Rs.35/- per day as a dole for his expenses. The petitioners have a facility to stay separately in a cell which cells are never locked. However, only the outer gate of the special camp is locked for the sake of safety. He points out that out of these petitioners some are the members of the militant outfit and face the danger of being attacked by the rival militant organisations. He, therefore, suggests that the orders are absolutely correctly based.

10. The further contention is that these petitioners are given competent medical facility and they are also allowed to mingle with their family which is clear from the fact that one of the petitioners has become father of two children during his stay in the said special camp. He refutes the charge that the petitioners are not allowed to meet their relatives and points out that there is a Television for their entertainment and practically all the petitioners are having their own radio sets which are allowed to be used by them.

11. In short, the learned Public Prosecutor refutes the charge that the petitioners are kept in Special Camp or in inhuman conditions inside the special camp. These measures would be must for the security of India as also for the safety of the inmates themselves. This is besides the fact that all the petitioners are required by the Indian law as they are involved in the crimes committed by them while in India.

12. On these rival submissions, we would be required to examine the following questions:

1.Whether the continued placement of the petitioner in the Special Camp amounts to "preventive detention" and would attract the strict safeguards of Art.22 of the Constitution?

(a) In that, whether this Court is bound by the judgment of the coordinate Bench reported in Yogeswari case, cited supra?

2. Whether the treatment offered to the petitioners is of subhuman nature and whether the measures adopted by the respondents amount to a denial of human-rights of the petitioners?

3. Are the petitioners entitled to any other relief?

13. It will be the basic question in these writ petitions to decide as to whether the regulation and placement of the petitioners achieved by passing the orders under Sec.3(2)(e) of the Foreigners Act would amount to "detention". Very weighty arguments were advanced before us by Shri B. Kumar, learned senior counsel as also by Shri P.V.S. Giridhar. According to the learned counsel, these arguments were considered and accepted by this Court in Yogeswari case, cited supra, and, therefore, that decision would be binding on us. We will have to, therefore, trace out the roots of this subject right from the first authoritative decision on this subject, which is handed out by the Division Bench of this Court in Kalavathy case, cited supra. We are told at the Bar that this decision was followed in few unreported judgments of this Court. However, it was for the first time that a diametrically opposite view was taken by a Division Bench of this Court in Yogeswari case, cited supra, holding that the orders passed under Sec.3(2)(e) of the Foreigners Act would amount to preventive detention orders. In fact, all the arguments which were raised in Yogeswari case, cited supra, were repeated before us also. It will, therefore, be necessary first to examine the decision in Kalavathy case.

14. The Division Bench in that case firstly took stock of the provisions under Sec.3(2)(e) and Sec.3(2)(g) as it was urged that powers under Sec.3(2)(g) of ordering arrest, detention or confinement against a foreigner though were not delegated by the Central Government and only the powers under Sec.3(2)(e) were so delegated to the State Government what was being done by keeping these foreigners in the special camp was to indirectly detain them or confine them and, therefore, this was a colourable exercise of powers. In particular, the Division Bench considered the impact of Sec.3(2)(e)(i) under which a foreigner could be required to reside in a particular place. An argument was raised that the term 'place' had to be broadly interpreted and as such, restricting the residence to the place which was formerly a sub-jail could not actually be covered under Sec.3(2)(e)(i) but actually amounted to a detention or confinement as contemplated in Sec.3(2)(g), which power was admittedly not delegated and , therefore, the said regulation of the residence amounted to detention. The Division Bench observed that there was nothing in the language of the section to indicate that the word 'place' was either as big or as small as a town, village, market place or otherwise. The Bench further observed that the word 'place' has been used to denote certainty rather than ' size'. The Division Bench also came to the conclusion that the Special Camp which had an area of 10000 sq.ft. could certainly be termed as a 'particular place'. The Division Bench then further took into consideration the full impact of Sec.3(2)(e)(ii) also, which empowered the Government to impose any restriction on the movements of the foreigners and came to the conclusion that the foreigners could not only be asked to stay in a particular place but, restrictions could also be placed on movements. In view of this position, the Division Bench refuted the argument that the exercise of the powers by the Government under Sec.3(2)(e) was in reality an exercise under Sec.3(2)(g). It also refuted the further argument that such regulation or putting the restrictions on the movements amounted to an arrest. The Division Bench, therefore, came to the conclusion that there was no protection to such foreigner under Art.22(4) of the Constitution as that Article dealt with the protection against arrest and detention in certain cases. Thereafter, the Division Bench in paragraph 16 dealt with the protection claimed by the petitioners there under Art.14 and 21. It took stock of the counter-affidavits filed in that case that some of the Sri Lankan refugees had to be segregated as some of them being members of the militant organisations or were having close links with the outlawed militant organisations. It took note of the observations made in G.B. Singh v. Government of India (AIR 1973 SC 2667) to the effect that the first duty of the State was to survive and for that it had to deal with enemies both overt and covert whether they be inside the country or outside and the fact that such person, if released, would continue to indulge in activities prejudicial to the security and integrity of this country. The Division Bench recorded a finding that if the reasonable restrictions were imposed by the State to preserve its security, which was paramount, it could not be said that there was a discrimination against such a person. It noted the fact that only a small percentage of Sri Lankan who were entertained as refugees were put in the Special Camps in view of the information available to the State Government that they belonged to the militant group and had close links with LTTE and also had a role to play in the Rajiv Gandhi assassination case. The Bench then repelled the challenge under Art.21 of the Constitution and held, relying on the decision in Govind v. State of M.P. (AIR 1975 SC 1378), that the orders were passed in keeping with the procedure established under Sec.3(2)(e) of the Act under which, the State Government had power to impose restrictions. It also noted that the validity of the Foreigners Act was upheld by the Supreme Court and, therefore, it was obvious that what was being done was under a valid law justifying the interference with the person's life or personal liberty. It further took note of the Division Bench decision in Ananda Bhavanand @ Swamy Geethananda v. Union of India (1991 L.W. Crl. 393) as also the Bombay High Court judgment in Bawalkhan v. B.C. Shah (AIR 1960 Bombay 27) and came to the conclusion that there was no question of the procedure adopted by the State Government in passing the order being held against the spirit of Art.21. It also made observations that so long as the refugees were staying in India without causing any nuisance, there was no question of circumscribing their rights but, when it was found that they were acting prejudice to the security of the country, the powers under Sec.3(2)(e) could always be used and merely because the hearing was not given to them that by itself would not go against the spirit of Art.21 or as the case may be Art.14. In that, the Division Bench also relied on the judgment of the Supreme Court in Louis De Raedt v. Union of India ( AIR 1991 SC 1886) as also the earlier view expressed in Hans Muller v. Superintendent, Presidency Jail, Calcutta (AIR 1955 SC 367). In the circumstances, the Division Bench deduced that no notice prior to the passing of the impugned orders could be expected by the foreigners against whom the order was passed. It also took note of the fact that these Sri Lankan nationals would have the opportunity to leave the boundaries of the special camp on sufficient cause with the permission of the District Collector concerned and, therefore, there was no question of procedural mandate being violated. It observed:

"To reiterate, the survival of the State is paramount, and if to preserve the security and integrity of the country, certain restrictions have to be imposed on these foreigners, it will be difficult, on the present set of facts, to hold, that there has been violation of the mandate of Art.21 of the Constitution."

The Division Bench, therefore, went on to dismiss the writ petition.

15. We have deliberately dealt with the judgment in Kalavathy case, cited supra, in extenso as firstly, some of the arguments raised before us more particularly regarding Arts.14 and 21 have been dealt with in that judgment. Secondly, the aspect as to whether their regularisation of their residence under Sec.3(2)(e) amounts to preventive detention has been squarely answered in that judgment holding that it is not a preventive detention, which question we have treated as the basic question. Learned counsel also argued before us that some of the factual aspects are different in the said judgment and, therefore, that judgment should be restricted to the facts in that case. Learned counsel also further argued that judgment cannot be a final authority because some questions, which were raised in the subsequent judgment in Yogeswari case, cited supra, were not raised before that Bench and, therefore, that judgment should not be held to be having a binding effect on us. It will, therefore, be now necessary to see as to on what precise grounds has the judgment in Kalavathy case, cited supra, been refused to be followed by the Bench in Yogeswari case, cited supra.

16. The basic premise in Yogeswari case, cited supra, appears to be found in paragraphs 4.4, 4.5 and 4.6 because the other aspects included in paragraphs 4.1, 4.2, 4.3, 4.7 and 4.8 are absolutely common. We will, therefore, deal with the contention raised and found favour with in those three paragraphs. They are as follows:

"4.4. According to him, the object of keeping the detenu in Special Camp, namely to regulate his continued presence in India, is no longer valid since the detention of a foreigner is now regulated by the National Security Act, 1980 which has replaced the Preventive Detention Act, 1950.

4.5. According to the learned senior counsel, when the Parliament has enacted a fresh legislation on the same subject, namely dealing with foreigners providing for greater safeguards, then those provisions would come under the provisions of the latter Act and in the absence of the Advisory Board and the opportunity to the detenu, detention for an unlimited period of time is clearly illegal.

4.6. It is submitted that the National Security Act, 1980 is a special enactment on the subject which covers the field and the same shall prevail over the Foreigners Act, 1946."

16.1. Shortly, stated the contention boils down to the proposition that because of Sec.3 of the National Security Act, 1980, which is a post-constitutional enactment, the earlier pre-constitutional provision like Sec.3(2)(e) of the Foreigners Act would stand eclipsed and be rendered non-functional. This is more particularly because the exercise of the power under Sec.3(2)(e) and the manner in which the power was being exercised would suggest that it was in fact the power under Sec.3(2)(g) of arrest, detention and confinement, which was being exercised. We must hasten to add that in paragraph 7 of Yogeswari case, cited supra, a clear-cut reference has been made to the order passed by the Supreme Court in S.L.P. No.369 of 1996 (Chinnapillai case). The learned Judges then went on to hold in paragraph 11 that the power to regulate the continued presence of a foreigner in India and if it was necessary to do so, the power has to be exercised under Sec.3 of the National Security Act, 1980. The learned Judges went on to hold in the same paragraph that if Sec.3(2)(e), read as a whole, would show that the power of regulation is not a measure of punishment but only regularisation. A reference was made to Sec.3(2)(g) as Sec.4(2) of the Foreigners Act. In paragraph 12, the Division Bench has made a reference to Art.21 and noted that it was available to all and not necessarily only to the citizens of India and then the learned Judges further held therefore where a person's liberty was taken away or if he is to be 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. Learned Judges reiterated that since the National Security Act empowers the authorities to pass the orders under Sec.3 in reference to a foreigner with a view to regulate his continued presence in India in keeping with the constitutional safeguards, the power under the Foreigners Act cannot be availed of. The learned Judges noted that the Foreigners Act, being a pre-constitutional enactment, was not in consonance with the Fundamental Rights guaranteed to any person and, therefore, such person comes under the special enactment, viz. National Security Act, 1980 on the same subject-matter, power could not be availed of by the authorities under the Foreigners Act. The learned Judges then noted:

"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 21 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."

16.2. In paragraph 13, the learned Judges observed that 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 and it was not justifiable on the part of the Government to invoke Sec.3(2)(e) of the Foreigners Act only to avoid the latter Act for the purpose of regulating the continued presence of a foreigner. A brief reference to Sec.3(2)(g) of the Foreigners Act is made thereafter in paragraph 14 and a finding of fact is given that the order to keep the detenu 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 was no order under Sec.3(2)(g) of the Act. It is, therefore, reiterated that the restriction amounted to detention.

16.3. In paragraph 15, the learned Judges observed that the Division Bench in Kalavathy case, cited supra, could not consider the question vis-a-vis the National Security Act, 1980.

16.4. These were the grounds on which the judgment in Yogeswari case, cited supra, was finalised. In the later part of the judgment and more particularly from paragraph 16, the learned Judges found that the impugned order under Sec.3(2)(e) firstly did not take into account the bail order granted by the Sessions Judge, Tiruchy; secondly, that it was an admitted position that the order of detention was passed only because of the pendency of the criminal case and for no other reason; thirdly, that the Government had no objection to send back the foreigner back to his country and it was only because of the pendency of the criminal case that the order came to be passed; and lastly, the detenu in that case entered into Indian territory authorisedly and had completed all the formalities and also had the residence in India since 1983.

16.5. In the subsequent paragraphs, it was noted that the facts in Kalavathy case, cited supra, were distinguishable on facts as, that case considered the persons who had close links with L.T.T.E. and had posed a danger to the security of the State on account of their belonging to various militant groups. The observations in Kalavathy case, cited supra, that some of the militants had a role to play in Rajiv Gandhi assassination was also taken note of as a distinguishable factor from the present case.

16.6. In paragraph 19, further reference was made to Hans Muller case, cited supra, and a reference was also made to the concession made by the then Attorney General that the unrestricted power given by Sec.4(1) of the Foreigners Act, 1946 to confine and detain foreigners had become invalid on the passing of the Constitution because of Articles 21 and 22 and, therefore, to bring this part of the law into the line with the Constitution, Section 3(1)(b) Preventive Detention Act, 1950 was enacted. It was, therefore, deduced that a confinement of a foreigners would become invalid if he did not meet with the requirement of Articles 21 and 22.

16.7. Taking recourse to the decision in VARADHARAJ v. STATE OF TAMIL NADU (AIR 2002 SC 2953), the Court held that the fact that the order granting bail and the no objection of the Public Prosecutor therefor were the relevant documents and, therefore, the fact that the detenu in that case had been granted bail should have been taken note of while passing the order under Sec.3(2)(e) and that not having been done, the order had become illegal.

16.8. Lastly, reference was made to Louis De Raedt case, cited supra, where the Supreme Court had recognised the right under Article 21 of the Constitution to the foreigners and on that basis it was held that before depriving the right of a person as guaranteed under Article 21 of the Constitution or even after doing the same, the detenu was not given any opportunity whatsoever for over two years and, therefore, the impugned order was liable to be set aside on that count alone.

17. We have elaborately considered the judgment in Yogeswari case, cited supra. That is the mainstay of the attack in this case. However, one thing is certain that though there is a specific reference made to the order of the Supreme Court in S.L.P. No.369 of 1996 ( Chinnapillai case), there does not seem to be any consideration regarding the same in the whole judgment. We have very carefully scanned each paragraph of the said judgment to search for such consideration of that Supreme Court order and unfortunately, we find none. This exercise was necessary because the argument before us by the learned Public Prosecutor was that the order in Yogeswari case, cited supra, was per incurium of the Supreme Court order. The learned Public Prosecutor was at pains to point out that though the order in Chinnapillai case, cited supra, was passed while dismissing the Special Leave Petition, since the Supreme Court had given the reaso ns and had also considered the judgment in Kalavathy's case, it was a 'declared law' and was binding under Art.141 of the Constitution of India. For better understanding, the order in Chinnapillai case, cited supra, and for deciding as to whether it was a 'law declared' under Art.141, we would rather quote the order:

"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 lodgment in a Refugee Camp does not amount to detention, the learned counsel for the State of Tamil Nadu cites Kalavathy etc. v. State of Tamil Nadu etc. 1995 L.W. (Crl.) 692. 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." (emphasis supplied).

18. A look at the order of the Apex Court will suggest that it is not a simple dismissal of the Special Leave Petition without giving the reasons. Had that been the intention, there would have been no reference to the facts in that case. The Supreme Court has taken note of the fact that in that case, the concerned foreigner was facing the criminal prosecution and was also ordered to be bailed out yet the order under Sec.3(2)(e) came to be passed against him. A direct reference thereafter was made in paragraph 2 to Kalavathy's case wherein the contention raised by the Public Prosecutor that the regularisation in the Special Camp does not amount to detention. Lastly it was stated that the Special Leave Petition against the Kalavathy's case, cited supra, was dismissed. The Supreme Court lastly said that "in this view of the matter, there was no ground to interfere".

19. Shri B. Kumar, learned senior counsel strenuously suggested that this cannot be a 'law declared' because like in the earlier matter against Kalavathy's judgment, the reasons have not been given by the Supreme Court and this amounts to a mere dismissal without giving any reasons. We find it difficult to agree with the contention for the obvious reasons. By making a direct reference to Kalavathy's case, it is obvious that the Supreme Court has considered the same. It cannot be countenanced that the Supreme Court did not consider the judgment at all and merely went on to dismiss the Special Leave Petition on the basis of the statement made by the Public Prosecutor that the Special Leave Petition was dismissed against the Kalavathy's judgment. This is apart from the fact that in Kalavathy's judgment, the court was not considering the factual situation that a foreigner was ordered to be released on bail and yet, he was lodged in the Special Refugee Camp. There, such a question never arose. Very significantly, though such a question was there in Yogeswari case, cited supra, which was subsequently decided by this Court, in that judgment there is no reference to the Supreme Court order when in fact, the High Court had considered the circumstance of the bail order against the State and in favour of the foreigner in complete contradiction to Chinnapillai case. We are, therefore, left with no doubt that this is a case where the Supreme Court had not merely dismissed the Special Leave Petition without giving any reasons. Shri B. Kumar draws our attention to the words "in this view of the matter, we see no ground to interfere" and tries to interpret that the matter considered by the Supreme Court was merely the dismissal of the Special leave Petition against Kalavathy's case, cited supra. In fact those lines refer to the view expressed in Kalavathy's case and also the facts in the first paragraph that though a foreigner was ordered to be released on bail, he was lodged in the Special Camp. This would, therefore, be a clear approval of Kalavathy's judgment and would have a binding effect under Art.1 41 of the Constitution.

20. Shri Kumar, very heavily relied upon the observations made in the Full Bench decision of this Court in PHILIP JEYASINGH v. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (1992 Vol.1 216) as also the decision of the Supreme Court in STATE OF U.P. AND ANOTHER v. SYNTHETICS AND CHEMICALS AND ANOTHER (1991 -4- SCC 139) and more particularly on the observations in paragraphs 39 to 41 thereof wherein the doctrines of 'per incurium' and 'sub silentio' were explained by the Supreme Court. According to the learned counsel, firstly the question regarding Sec.3(b) of National Security Act was never raised or argued in Kalavathy's case and secondly, the factual situation in Kalavathy's case was slightly different inasmuch as there, the court was dealing only the foreign nationals who had direct links with L.T.T.E. or other militant organisations and who were also responsible for the assassination of Rajiv Gandhi.

20.1. Regarding the first contention, learned counsel, therefore, says that it was open for the Division Bench in Yogeswari case, cited supra, to consider the question on the backdrop of Sec.3 of National Security Act and it was right in considering the said question. In short, the contention of the learned counsel is that the decision in Kalavathys case is sub silentio on the question of Sec.3 of the National Security Act and, therefore, the decision as to whether the regularisation of the residence of a foreigner under Sec.3(2)(e) in the Special Camps amounts to a detention or not had no binding effect on the Division Bench deciding Yogeswari case. Learned counsel further submits that the decision in Yogeswari case, being a decision of the co-ordinate Bench, becomes binding on us. It is with that idea the learned counsel invited our attention to paragraph s 40 and 41 of the aforementioned judgment. One more reason is that as per the learned Public Prosecutor, however, the decision in Yogeswaris case is per incurium of the judgment of the Supreme Court in Chinnapillais case, cited supra. Shri Kumar, however, further submits that there would be no question of the said decision being per incurium of Chinnapillai case because, the decision in Chinnapillai case is no judgment nor a law declared. It is for this reason that we have pointed out that the judgment in Chinnapillai case is in fact a 'law declared'. For reference, see the judgment of the Supreme Court in Supreme Court Employees Association v. Union of India (AIR 1990 SC 334) and more particularly the observations in paragraph 22. However, as has been suggested by us, the learned counsel very forcefully invites our attention to the aforementioned decision in State of U.P. v. Synthetics and Chemicals Ltd. (1991 -4- SCC 139 and invited our attention to the following observations in paragraph 41:

"that precedents sub-silentio and without argument are of no moment. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 ... it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent."

20.2 We have seen the aforesaid judgment very carefully. In the first place, we reiterate that the judgment in Chinnapillai case, cited supra, was not without reasons and though a reference was made in the statement of facts in Yogeswari case to that effect, the High Court did not apply its mind at all. Undoubtedly, the said decision would be binding only if it is a law declared and, in our opinion, it is clearly a declared law, holding that even if a foreigner, who has a bail order in his favour, is put in the Special Camp, it would not amount to a preventive detention. Once it is held to be a binding precedent, it is obvious that though a reference was made to Chinnapillai' s case, its' non-consideration would make Yogeswari decision a decision per incurium and such decisions which are per incurium would have no binding force. We have also seen the Full Bench decision of this Court in Philip Jeyasing case, cited supra, and we respectfully agree with the principles stated therein but, we do not find anything to take a different view we are taking in respect of Yogeswari's case.

20.3 As regards the second contention raised by the learned senior counsel that the decision in Kalavathy's case was given on its own facts, which were different from the facts in Yogeswari's case and, therefore, in Yogeswari's case, the High Court could hold that the regulation would amount to detention. Such is really not the import. In Kalavathy's case, the facts regarding the petitioners being dangerous persons or they being connected with the militant organisations or further some of them being responsible for the assassination of Rajiv Gandhi were recorded only to emphasise the aspect of the security of India. The learned Judges reiterated those facts only to hold that the security of any country is paramount important. That factual scenario had nothing to do with the ultimate principle laid down by the learned Judges that the regulation of such persons does not amount to detention. The argument, in our opinion, is clearly incorrect.

21. Shri B. Kumar went up to the extent of saying even the Supreme Court had not considered the effect of Sec.3(2) of the National Security Act. It will not be our domain to comment on the Supreme Court judgment. Once the Supreme Court approves the principle that the putting up of a foreigner in the Special Camp does not amount to his preventive detention, that would be a binding law on us as it was on the Division Bench deciding the Yogeswari's case.

22. Learned senior counsel then reiterated that if we have any reservations about the law laid down in Yogeswari's case, we should make a reference to the Full Bench for getting the question decided as to whether the placing of a foreigner in the Special Camp would amount to his preventive detention or not. We would desist from doing so for the simple reason, that if the judgment in Yogeswari's case is per incurium, as we have shown, then, it would not have any binding effect on us. In that event, it would not be necessary for us to make any reference to a Full Bench. We would instead choose to follow the judgment of the Supreme Court, which confirms the earlier Division Bench judgment of Kalavathy's case by this Court.

23. Learned senior counsel, however, invited our attention to Sec.3(b) of the National Security Act again and again in order to point out that the said provision would render the pre-constitutional provision of Sec.3(2) of the Foreigners Act null and void because that area would be a 'occupied field' by the Central Government itself.

24. The contention is basically incorrect. In the first place, the correct reading of Sec.3(2) of the National Security Act would suggest that it is basically a power to order preventive detention "if it is felt necessary" by the detaining authority to regulate the stay of a foreigner and/or his movements in India. The words 'if it is necessary so to do' point out that ordinarily there could be a regulation of the movements or stay of the foreigner in India but where, under the ordinary law like Sec.3(2)of the Foreigner Act "if it is felt necessary", the detaining authority would have the power to order his preventive detention also. In short, the two acts, viz. the Foreigners Act and the National Security Act operate entirely in different spheres. We hasten to add that the power to arrest, detain or intern a foreigner is specifically mentioned in Sec.3(2)(g) of the Foreigners Act but it is not that power which has been delegated to the State Government. It is the power under Sec.3(2)(e) of the regulation alone which has been delegated by the Central Government to the State Government. Therefore, the State Government is well advised to use that power but where it feels necessary to order a preventive detention, which is a more concentrated remedy as compared to a mere regulation, it can do so under Sec.3(2) of the National Security Act. The inference that the two provisions operate in the common field and, therefore, the Foreigners Act becomes eclipsed or otiose or nullified, in our opinion, is a law which is too broadly stated. In fact, it is unnecessary for us to express ourselves on that aspect as it would be for the higher court to consider the same in a given case at appropriate time if that argument is raised before that court. Today, however, such is not the case and, therefore, we would choose to be bound by the law stated by this Court and affirmed by the Supreme Court that the placement of a foreigner in the Special Camp is not a preventive detention.

25. It was tried to be argued further that Sec.3 of the National Security Act is a subsequent enactment and, therefore, that enactment was liable to be given the full effect because it operated in the same field as Sec.3(2)(e) of the Foreigners Act. Paragraph 20 of the judgment in SARWAN SINGH AND ANOTHER v. KASTURI LAL (AIR 1977 SC 265) was relied upon.

26. We have nothing to say about the principle involved in the said Supreme Court decision. However, we have already shown that the two provisions are entirely different and cannot be said to be occupying the same field. One is a mere regulation of the movement while, the other is a preventive detention. The implications of both are vastly different, which need not be elaborated here. The argument is, therefore, incorrect.

27. It is suggested that even this argument was not considered in Kalavathy's case and, therefore, in Yogeswari's case, the High Court was justified in considering a new aspect. We have already given the reasons that a specific affirmation of a principle by the Supreme Court would be binding on us and there will be no point in our considering the contention that a particular provision of law was not considered by the Supreme Court. We desist from expressing any opinion about the proprietary of such an argument being made before us.

28. Shri P.V. Giridhar, learned counsel appearing on behalf of some of the petitioners, tried to suggest that even if Kalavathy's case was held to be affirmed by the Supreme Court yet, an argument would still be open before us in respect of the 'open areas' left which, according to the learned counsel, were the arguments regarding the violation of the petitioners' rights under Art.21. Learned counsel invited our attention to the following observations of the Supreme Court in paragraph 14 of Kharak Singh's case, cited supra:

"intrusion into the residence at his door with the disturbance to his sleep and ordinary comfort which such action must necessarily involve, constitute a violation of the freedom guaranteed by Art.19(1)(d) or 'a deprivation' of the 'personal liberty' guaranteed by Art.21."

On this basis, the learned counsel tried to develop an argument that since there was no privacy left to the persons like the petitioners, who were lodged in the Special Refugee Camps, it was a breach of right of privacy of the petitioners.

29. Such an argument was in fact repelled in Kharak Singh's case. This is apart from the fact that the petitioners being foreigners would have no right under Art.19(1)(d) and further merely because their privacy would be breached would be no defence against an order under Sec.3(2) of the National Security Act unless it is found that the order was tainted with mala fides or not warranted at all or unless the provisions of Sec.3(2)(e) of the Foreigners Act are held to be unconstitutional. Learned counsel very fairly conceded that he was not challenging the validity of Sec.3(2)(e) of the Foreigners Act and indeed, that argument could not have been made as the constitutionality of the Foreigners Act had been confirmed by the Supreme Court.

30. Regarding the argument for breach of Art.21, all that we would say that in this case, the order has been passed under a procedure handed out by Sec.3(2)(e) of the Foreigners Act. Therefore, it cannot be said that the liberty of the petitioners has been curtailed or their right of privacy has been breached without any orders or without following the procedure established by law. This is apart from the fact that in Kalavathy's case, the aspect of Art.21 as also the aspect of Art.14 were considered by the Division Bench and it was found that the passing of the order under Sec.3(2)(e) of the Foreigner Act would not amount to a breach of the rights under Art.21 and Art.14. We have already pointed out that in paragraph 18 the question has been answered by the Division Bench though it was argued that in that case, the Court was dealing with the dreaded militants who were responsible for the assassination of Rajiv Gandhi. We cannot forget the fact that in the present case also some of the petitioners are facing some serious criminal charges. In our opinion, the classification between the foreigners as those who are not facing any criminal charges and those who are facing such charges would be a rationale, reasonable and valid classification.

31. Learned counsel also tried to argue that the question of Art.2 1 relating to the breach of privacy right of the petitioners and the question of denial of humanrights did not fall for consideration in Kalavathy's case or before the Supreme Court. We do not think that this argument was not considered in Kalavathy's case. It was undoubtedly considered though from a different factual angle. We cannot express anything in respect of the order passed by the Supreme Court in Chinnapillai case because it is not in our domain to consider the judgment of the Apex Court. The judgments are binding on this Court and we have pointed out that a particular principle reiterated and affirmed by the Supreme Court would always be binding and it will not be for us to find out as to which particular aspect was considered by the Supreme Court and which other was not.

32. Arguments were tried to be made by the learned counsel suggesting that there was no proper delegation of the powers under Sec.3(2)(

e) of the Foreigners Act also. However, that point was not pursued by the learned counsel further as it was pointed out that the delegation in 1958 was not only proper but, even the subsequent changes in law would also be governed under that.

33. Learned counsel also urged about the procedural safeguards of there being no notice or no hearing to the petitioners. We have already considered that question and held that all that has been concluded in Kalavathy's case.

34. In this view, we are of the clear opinion that the petitions have no merit and must be dismissed. However, before doing so, it would be for us to take stock of some factual aspects regarding the conditions of the petitioners as also regarding the arguments at the Bar that some directions need be given for the relaxation of some of the conditions.

35. Shri B. Kumar, learned senior counsel, reiterted that this Special Refugee Camp was a Sub Jail and that it has three-tier security set up and guarded by the armed personnel for 24 hours; that there were 41 cells of the dimension 8' X 10' and the rear side of the each cell was required to be used as a toilet for which there was no exit; that the inmates were never allowed to go out of the Special Camp and the relatives were allowed to meet the inmates only with the prior permission of the Tasildhar and Police; those relatives were never allowed to say and were required to leave before 5 p.m.; that the names of the relatives had to be furnished in advance and no new names could be added to the list of the relatives who could meet the persons like the petitioners; inmates could not even come out to purchase their provisions and other bare necessities and that had to be done with the help of a village menial, who alone could go out and make purchases from outside; the inmates were being taken out with very strong escort either to the courts or to the hospitals but nowhere else; that there are no entertainment available inside the Special Camp in any manner.

36. Shri Giridhar, learned counsel also supported these arguments on the ground of the abuse of human-rights in case of these persons. It was suggested that in the writ of Habeas Corpus also as was done by the Supreme Court in SUNIL BATRA v. UNION OF INDIA (AIR 1980 SC 157 9), the treatment should not be such so as to deny the human-rights to these persons.

37. Learned Public Prosecutor opposed this argument and pointed out that the persons in the Camps do not have to be dealt with the strictness as is required in case of the persons like the petitioners who are in the Special Camp. It has been reiterated in the counter that it is only for those foreigners who are suspected to be connected with the militant organisations or such persons who are involved in the criminal case in the State or those whose presence outside the Special Camp might pose a serious threat to the safety and security of the Nation and/or to the VIPs/VVIPs, etc., that such arrangement is made of putting them in the Special Camps. However, that is considered on a proposal sent by the Superintendent of Police, Q Branch, CID Chennai alone, who is the sponsoring authority for this purpose. It has been reiterated in their counter, that it is not that the foreigners have to be lodged in the Special Camps for ever. It has been pointed out that there are number of persons, about 150, who were even connected with the militant organisations like LTTE or who faced serious charges, were allowed to leave the Special Camps for going back to Sri Lanka or any other country for settlement. Lists are also given camp-wise and it is found that from every Special Camp, a very substantial number of persons have been allowed to leave. It cannot be denied that there was full justification for keeping these persons in Special Camps as they had probably misused the facility given by the Government of India to allow them to stay in India on account of the alleged internal disturbances in Sri Lanka. We have already rejected the argument that there was absolutely no reason for such persons to be placed in the Special Camp. The question is only as to how they should be treated.

38. The Government has come out with the detailed counters regarding the treatment given to persons lodged in the Special Camp wherein, it is suggested that they are entitled to certain amounts which, though meagre, would subsist them in the Special Camp. They are allowed to cook their own food. Practically, all of them are allowed to use the electric gadgets like hot plates, television with cable connection, radio, etc. They are also given the worship facility. It is pointed out that even the clothes are provided to the persons who are the residents of the Open Camps. It is also pointed out that the allegation regarding the privacy not being there is also not wholly true inasmuch as one of the inmates became the father of two children though he alone was lodged in the Special Camp since his family-members like wife, etc. were allowed to meet him in complete privacy.

39. We would not go into that question. However, what concerns us is the complaint made by the learned counsel that once they are put in the Special Camp, that is almost a one-way ticket for them in the sense that they cannot go out. In our opinion, it would be better if the Government is directed to take up the review in each individual case, atleast twice a year. For this purpose, the concerned persons can be given an opportunity to make representations and to show the change of circumstances. We also feel that such persons, who are not potentially dangerous or whose life itself is not in danger on account of their connections with the militant organisations could be allowed to go out atleast once a week for making purchases, etc. of course, under a proper police escort so that they do not take any undue advantage of the facility given. It is suggested by the learned counsel that whenever an application is made for going out on some occasions like, marriage, family functions, funeral, etc. such applications are not considered in time. We would expect the Government to dispose of these applications expeditiously and not beyond a period of four weeks, if they are made to a proper authority. This will, of course, be subject to the Government's right to make bi-annual review in case of each such person. We are also of the opinion, that the facility of meeting with the relations should be in a more relaxed manner so that they are able to meet their relatives and other persons (not necessarily only those whose names have been earlier given). Similarly, we have already taken a note of the argument by the learned Public Prosecutor that these persons would not be kept in the Special Camps the moment the requirement of their being lodged in the Special Camp comes to an end like when they are acquitted of the charge or when they are convicted and served out their sentences. We would also expect that the State Government and the Public Prosecutors in the criminal cases pending against these persons would be more vigilant and their criminal cases should be disposed of with top priority. Accordingly, a general direction shall issue that all those persons who are lodged in the Special Camp on account of a pending criminal prosecution, such criminal case should be disposed of giving top priority to that case. All the concerned courts shall be informed of this direction.

40. In the matter of their visits or going out for any other purposes, unnecessary restraint shall not be shown but, such applications shall be considered with humanitarian approach and more stringent conditions then necessary shall not be imposed while ordering a temporary release from the Special Camps.

41. We have also observed that they shall be given full and free medical facilities and would have the advantage of being treated by the competent Doctors in the proper hospitals.

42. As far as possible these persons should be allowed to lead a family-life. If the inmates are children, they can even be given the facility of education. The State Government can also think of providing them any work in the Special Camps itself, which would be of voluntary nature, and to pay for the work done by them at reasonable rates.

43. In addition to these directions, we recommend to the Government to encourage these inmates to take up indoor and outdoor games and also hold yoga and meditation classes for them. They should also be provided with a facility of library. If necessary, they could also be given some vocational training so that this period of regulation does not mean a total waste of time in their lives. Lastly, the Government should take a corrective attitude instead of retributive attitude against them.

44. All the observations made in paragraphs 39 to 42 would be treated as the directions by this Court to the State Government.

45. With this, we dispose of the writ petitions subject to the above directions.

Index:Yes Website:Yes Jai To:

1. Secretary to Government State of Tamil Nadu Public (SC) Department Chennai 600 009

2. The District Collector Kancheepuram District Kancheepuram

3. The Camp Officer Special Camp for Srilankan Chengalpattu

4. The Public Prosecutor O/o The Public Prosecutor High Court Madras

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Madras High Court