Document Fragment View

Matching Fragments

5. The next contention of Mr. Chagla. is in our opinion, not really in the nature of a preliminary objection at all, as Mr. Chagla urged, but relates to the merits of the petitioners' claim before us. That contention was that the petitioners do not have any legal right which they can enforce by a writ in the nature of Mandamus other than the fundamental right of personal liberty under Article 21 of the Constitution the enforcement of which has now been suspended by the Presidential Order. Mr. Chagla's contention was that, in the ultimate analysis, the clauses of the Conditions of Detention Order, the validity of which the petitioners seek to impugn by the present petition, are merely different facets of the fundamental right of personal liberty under Article 21 and do not exist apart from the right of personal liberty, Mr. Chagla sought to contend that the right to eat, to spend, to meet people, to write, to smoke, to play games, are all parts of the fundamental right of personal liberty contained in Article 21. In fact, Mr. Chagla went so far as to suggest that if the Conditions of Detention Order contained a clause that detenus are not to be allowed to eat any food, it could not be challenged and the petitioner would have no remedy by way of a petition under Article 226 as long as the Presidential Order suspending the enforcement of the fundamental right under Article 21. of which the right to eat is a part, is in force. Emboldened by this proposition of Mr. Chagla, which we cannot help observing is a startling proposition, the learned Government Pleader interposed and said that even if the Conditions of Detention Order were to authorise that the detenu should be shot, such a clause could not be challenged during the subsistence of the Presidential Order. Happily, we are not compelled to take such an extreme view and, as observed by the Supreme Court in regard to a similar argument advanced before it in the case of the State of Maharashtra v. Prabhakar. , "in the matter of liberty of a subject such a construction shall not be given to the said rules and regulations, unless for compelling reasons", and far from there being compelling reasons for giving such a construction, the same would be contrary to well-alerted canons of construction of statutes. It is beyond doubt that by a writ of Mandamus the Court can not only compel the performance of a statutory duty, but can also compel public authorities to forbear from acting in violation or breach of a statute. In any event, as laid down by the Supreme Court in the case of Dwarka Nath v. Income-tax Officer , Article 226 is much wider than the power of English; Courts to issue prerogative writs, and under that Article this Court can certainly issue a direction or order which j would compel a public authority to for bear from acting in violation of a pr-; vision of a statute, which is quite different' from the enforcement of a fundamental-right. If, therefore, there is any clause in the Conditions of Detention Order which goes beyond the Act under which that Order is made, as a clause which provides for starving or shooting a detenu certainly would, this Court has the jurisdiction to issue a direction or order against the respondents that they should forbear from doing so. To put it in another way, a citizen has the right to say that a public authority should act in conformity with the law, viz., in the present case the Act, and' it is that right that the petitioners seek" to enforce in the present case, and not, their fundamental right of personal liberty under Article 21. as Mr. Chagla con-i tends. If the respondents in the present case do not act in conformity with the! Act. but enforce a clause of the Conditions of Detention Order which is ultra vires the Act, to the detriment of the detenu, as a person adversely affected there-' by, he is certainly a "party aggrieved"; who can come to the Court by way of a proceeding under Articles 226 and 227 of the Constitution. In the case of S. Sinha v. S. Lal and Co.. (AIR 1978 SC 2720). dealing with a contention advanced before the Court in that case that the first respondent had no interest in the lease which was the subject-matter of that case, following the English law on the point, it was laid down (paras. 9-10) by the Supreme Court that when the application for a writ is made by a party or by a person aggrieved, the Court would intervene ex debito justitiae, in justice to the applicant; and when it is made by a stranger, the Court considers whether the public interest demands its intervention. It was further stated that in either case it was a matter which rested ultimately in the discretion of the Court. There can be no doubt that the petitioner in the present case being adversely affected by tile impugned clause of the Conditions of Detention Order is a party aggrieved, and if his contentions are accepted, the Court must intervene ex debito justitiae. There can also be no doubt that the matters involved in the present petition are matters of public interest which demand the intervention of the Court. Mr. Mehta rightly contended that merely because certain fundamental rights are declared by the Constitution, it does not mean that all other rights of citizens are gone, In support of that contention, he has relied on five decisions of the Supreme Court which, in our opinion, completely bear out his proposition. In the case of the State of Maharashtra v. Prabhakar, already cited above (paras. 4-5). it has been stated that notwithstanding Presidential Orders under Articles 358 and 359 of the Constitution, if a detenu's liberty has been restricted in contravention or in derogation of the law whereunder he is detained, the High Court can issue an appropriate writ or direction to the authority concerned to act in accordance with law. In the case of Durgadas v. The Union of India , the effect of an emergency declared under Article 358 as well as under Article 359 (1) of the Constitution, as in the present case, has been explained. It has been stated that if the petitioner sought to challenge a statute on a ground other than contravention of Articles 14, 19, 21 or 22 of the Constitution, such a challenge would be outside the purview of a Presidential Order under Article 358 or under Article 359 (1). As an illustration of the same, it is stated that a citizen would not toe deprived of his right to move the Court for a writ of habeas corpus on the ground that his detention was mala fide, or "on the ground that any of the grounds given in the order of dention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view." What is .stated in the words just quoted is precisely the main ground of challenge in the present case. Durgadas' case was cited and followed by the Supreme Court in the case of Jaichand Lai v. The State of West Bengal in which it was reiterated that the limitation imposed by Presidential Orders under Articles 358 and 359 (l\ of the Constitution cannot preclude a citizen from challenging the validity of an impugned provision on any ground other than contravention of Articles 14, 19. 21 and 22, e.g.. on the ground of mala fides, or on the ground that the ground given had no real and proximate connection with the object of the legislature. It was explained that that only meant that the power conferred by the statute had been "utilised for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy". In the case of the State of Madhya Pra. v. Bharat Singh (AIR 1967 SC 1170, para. 5) it was stated by Shah, J,. speaking on behalf of the Court, that the argument that a proclamation under Article 358 protected both legislative and executive action and that, therefore, any executive action taken by the State would not be liable to be challenged on the ground that it infringed the fundamental freedoms under Article 19 was characterised as involving "a grave fallacy". Shah. J., then went on to observe as follows:

In our judgment, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it. and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority which if the provisions of Article 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority, i.e., the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the Executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State Legislative, Executive and Judicialeacli organ having some check direct or indirect on the other, and (3) the rule of law which includes judicial review of arbitrary executive action.

(Underlining supplied).

The next case on which reliance was sought to be placed by Mr. Mehta is the case of H. Saha v. The State of West Bengal. , in which the constitutional validity of the Maintenance of Internal Security Act, 1971. was challenged by the petitioners on various grounds, one of which was that Section 3 of that Act violated Article 14, because it permitted the same offence to be a ground of detention in different and discriminatory ways, insofar as one person might be prosecuted but not detained preventively, whilst another may not be prosecuted but only detained preventively, and a third may be prosecuted and also detained preventively. In dismissing the petitions, the Supreme Court laid down para. 19 that there is no parallel between a prosecution in a Court of law and a detention under the Act. one being a punitive action and the other a preventive action, that (para. 32) the power of preventive detention was qualitatively different from punitive detention, and the pendency or otherwise of a prosecution was no bar to preventive detention, and that para. 33) whilst in a prosecution an accused was sought to be punished for a past act, in preventive detention the past act was merely the material for inference about the future course of probable conduct on the part of the detenu. This case emphasises the essential distinction between a punitive measure and a preventive law. In the case of the State of Maharashtra v. Prabhakar. . which has already been cited in another context, the detenu who had been detained under Rule 30 (1) (b) of the Defence of India Rules, 1962, had written, with the permission of the State Government, a book in Marathi which was a purely scientific work dealing with the Atom and the theory of elementary particles in en objective way. The detenu applied to the State Government for permission to sendt the manuscript out of the sail for publication, but that permission was refused and the detenu, therefore, filed a petition! under Article 226 of the Constitution for directing the State of Maharashtra to permit him to send out the manuscript of the hook written by him for eventual publication. The State Government in its affidavit in reply did not allege that the publication of the said book would be prejudicial to the object of the Defence of India Act, but averred that the Government was not required by law to permit the detenu to publish books while in detention. The contention of the learned Additional Solicitor General was (see para 2) that when a person is detained he loses his freedom and. being no longer a free man. an exercise such "privileges" as are conferred upon him by the order of detention, and in support of that contention, he relied on the observations of Das. J. in the Supreme Court case of A. K. Gopalan v. The State of Madras . The learned Counsel for the detenu, on the other hand, raised a twofold contention (see para. 3). The first was that a restriction of the nature imposed by the Government on the detenu could only be made by an order issued by the appropriate government under the Defence of India Rules, and that too, in direct compliance with Section 44 of the Defence of India Act, 1962, which provided that the authorities concerned should interfere with the ordinary avocations of life a? little as possible. Secondly, he contended that neither the detention order nor the conditions of Detention which governed the case enabled the government to prevent the respondent from sending his manuscript out of the prison for publication. On these ground;- it was submitted that the Government's order rejecting the respondent's request was illegal. The Supreme Court rejected (para. 8) the contention of the learned Additional Solicitor General that the Conditions of Detention Order which laid down the conditions regulating the restrictions on the liberty of a detenu conferred only certain "privileges" on the detenu. The Supreme Court pointed out that if that argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for food to the detenu, and stated that in the matter of the liberty of a subject such a construction should not be given to the rules, unless for compelling reasons. The Supreme Court, therefore, held that the conditions regulating the restrictions on the personal liberty of a detenu "are not privileges conferred on him. but are the conditions subject to which his liberty can be restricted", and as there was no condition in the Conditions of Detention Order prohibiting a detenu from writing a book or sending it out for publication, the State Government had infringed the personal liberty of the first respondent "in derogation of the law" where under he was detained. The Supreme Court took the view (paras. 4-5) that where the detaining authority acted in contravention or derogation of the law where under the detenu was detained, he would have the right to approach the High Court under Article 226. and the High Court could, in terms of Article' 226, issue an appropriate writ or direction to the authority concerned to act in accordance with law. notwithstanding Presidential Orders under Articles 358 and 359 of the Constitution. The Supreme Court, therefore, upheld the order passed by the High Court at Bombay directing the Government to allow the manuscript book to be sent by the detenu to his wife for its eventual publication, and dismissed the appeal filed by the State of Maharashtra from that order. It may be pointed out that the view of Das, J,. in Gopalan's case on which the learned Additional Solicitor-General relied was. in the light of later cases, stated by the Supreme Court (para. 7) as "not the last word on the subject". Indeed, that view appears to have been overruled by the Supreme Court itself in the case of S. N. Sarkar v. The State of West Bengal. . and again in the case of Khudiram Das v. The State of West Bengal. . Mr. Chagla rightly pointed out that the decision of the Supreme Court in Prabhakar's case is distinguishable because, unlike the present case, in the said case there was no condition in the Conditions of Detention Order empowering the government to act in the manner in which it had done. Prabhakar's case is, however, of considerable assistance in the present case on two points, viz.. (1) that the Conditions of Detention of a detenu are not "privileges" conferred upon him, but are conditions subject to which only his liberty can be restricted; and (2) that the suspension of enforcement of Article 21 during an emergency is no bar to the granting of a writ by the High Court under Article 226, if the authorities concerned act in contravention or in derogation of the law under which the detenu was being detained. To the extent to which the case of Harkishan Singh v. The State of Punjab. . relied upon by the learned Government Pleader is based on the view of Das, J., in Gopalan's case, and to the extent to which it rejects the view (para. 11) that though a person loses many of his personal rights as a result of punitive detention, those rights remain intact if he is under preventive detention, and holds that it makes no material difference in that regard whether the detention is punitive or preventive, the decision of the Punjab High Court in Harkishan Singh's case can no longer be regarded as good law. in view of the decisions of the Supreme Court in Prabhakar's case. Sarkar's case and Khudiram Das's case which have just been cited by me. What is more. I do not agree with the view of the Punjab High Court in Harkishan Singh's case and would, in any event, not follow the same. Mr. Mehta on behalf of the petitioner also relied on the judgment of a Division Bench of this Court in the case of Mahamood Ahmad v-The State of Maharashtra, (1966) 68 Bom LR 576 -- (1967 Cri LJ 994). The petitioner in the said case who was under detention under Rule 30 of the Defence of India Rules, 1962, had filed the said petition under Article 226 for an order that he should be allowed to purchase at his own cost and to receive certain journals and periodicals, he having failed to receive any reply from the Government to his letter making that request. Under Sub-clause (1) of Rule 16 of the Conditions of Detention Order applicable to the case, security, prisoners were allowed to have at their cost any weekly or daily newspapers which were included in the list of newspapers considered suitable for convicts of Classes I and II, and such other newspapers as might be allowed to them by orders of the State Government. Under Sub-clause for of that Rule, detenus were allowed to receive books (including periodicals which were not treated as newspapers) provided that the delivery of any such book to the detenu could be refused if the Commissioner of Police or the Jail Superintendent considered it "not suitable". The petitioner challenged the legality of the said Clause 16 on two grounds first, that the imposition of such a condition was beyond the powers conferred on the State Government by Sub-rule (4) of Rule 30 of the Defence of India Rules; and secondly, that the imposition of the condition was contrary to the provisions contained in Section 44 of the Defence of India Act, 19G2. Sub-rule (4) of Rule 30 of the Defence of India Rules empowered the appropriate Government to impose conditions relating to the maintenance, discipline and punishment of offences and breaches of discipline on the detenu, and Section 44 of the Defence of India Act enacted that the authorities acting in pursuance of that Act should interfere with the ordinary avocations of life and the enjovment of property as little as might be consonant with the purpose of ensuring public safety and interest, and the defence of India and civil defence. The Court took the view at pp. 573-S7S of Born LR - (at page 996 of Cri LJ) that the power contained in Rule 16 to prevent a detenu from having, even at his own cost, newspapers and books which can be freely read by the general Public but which are regarded by the authorities to be unsuitable to the detenus was obviously a condition which did not relate to the maintenance of the detenus. It further took the view that it also did not relate to the discipline of detenus which can comprise only those rules of behaviour which promote the orderly functioning of the institution where the detenus were accommodated and such further rules which were necessary for effectuating the specific purposes for which the detenus were detained. In the opinion of the Court, the word "discipline" in Sub-rule (4) of Rule 30 of the Defence of India Rules could not be utilised to enable the Government or the Jail Authorities to regulate the reading habits of the detenus. It, therefore, held (at p. 579 of Bom LR) :at p. 997 of Cri LJ) that the provisions of Clause 16, in so far as they prevented the detenus from having at their cost newspapers, periodicals and books which can be freely read by the general public, had no rational connection with the maintenance and discipline of detenus and were, therefore, beyond the powers conferred on the State Government by Sub-rule (4) of Rule 30 of the Defence of India Rules. It may be mentioned that in taking that view the Court referred to the decision of the Supreme Court in Prabhakar's case cited above as supporting the conclusion at which it had arrived. The Court, however, observed at d, 580 of Bom LR :at p. 997 of Cri LJ) that the State Government could of course prevent a detenu from receiving periodicals and books which could not be lawfully obtained by people who were not under detention, such as those which were obscene, In that view of the matter, the question of considering the second contention advanced on behalf of the petitioner which was based on Section 44 of the Defence of India Act did not really arise in that case, but Tarkunde J., in the Judgment of the Court, went on to observe at p. 582 of Bom. LR :At p. 998 of Cri LJ) that if it had become necessary to consider the same, they would have held that the restrictions contained in Clause 16 were also viola tide of the principle laid down in Section 44 and that if the State Government had taken into consideration the principle of least interference laid down in Section 44. it could not have rationally come to the conclusion that it was necessary for ensuring the public safety and interest or the defence of India and civil defence that persons kept in preventive detention should be debarred from receiving and reading periodicals and books which could be freely received and read by the general public. {The Court, therefore, granted a writ directing the respondents to remove the said restriction "and allow the petitioner to receive at his own cost the newspapers and periodicals" in question.

(3) That the conditions of detention of a person preventively detained are not privileges conferred on the detenu, but are conditions subject to which alone his liberty can be restricted, and if the detaining authority acts in contrayention or derogation of the law under which a person is preventively detained, the High Court can issue a writ under Article 226 to that authority to act in accordance with law, notwithstanding the subsistence of Presidential Order under Articles 358 and 359;
(4) That unless there is a specific provision in the law under which a person is detained imposing a particular restriction upon the detenu doing what any member of the general public could do, a clause in the Conditions of Detention Order imposing such a restriction would be unlawful and such a condition would also be contrary to the principle of least interference. It may be mentioned that the principle of least interference which was expressly laid down in Section 44 of the Defence of India Act. 1962. is precisely the principle of "minimal" restriction laid down by the Supreme Court in Sampat Prakash's case upon the tendril principles applicable to preventive detention, even in the absence of any provision of the nature of Section 44 of the Defence of India Act, 1962.