Dr. Ram Manohar Lohia Vs. State of Bihar & Ors [1965] INSC 176 (7 September 1965)
07/09/1965 SARKAR, A.K.
SARKAR, A.K.
HIDAYATULLAH, M.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
BACHAWAT, R.S.
CITATION: 1966 AIR 740 1966 SCR (1) 709
CITATOR INFO :
F 1967 SC 908 (6) R 1970 SC 814 (7) R 1970 SC 852 (8) F 1970 SC1228 (3,4) RF 1971 SC 530 (233,237) RF 1971 SC2486 (8,15) RF 1972 SC 655 (8) R 1972 SC 739 (12) R 1972 SC1256 (8,27) R 1972 SC1656 (5) R 1972 SC1749 (7) RF 1972 SC1924 (15) R 1972 SC2259 (6) R 1973 SC 295 (7) F 1973 SC 844 (1) F 1973 SC1062 (4) RF 1973 SC1091 (2) R 1974 SC 156 (4) R 1974 SC 255 (7) RF 1974 SC1336 (12) F 1975 SC 134 (6) R 1975 SC 953 (9) RF 1975 SC1215 (5) F 1976 SC 780 (5) E 1976 SC1207 (33,116,123,144,361,363,473) D 1977 SC1027 (23) R 1980 SC 494 (10) RF 1980 SC 898 (42) R 1981 SC2166 (21,22) RF 1982 SC1315 (11,20,36) RF 1985 SC 18 (6,15) F 1985 SC1416 (126) RF 1986 SC 872 (119) R 1987 SC 998 (5,6) R 1987 SC1748 (11) R 1987 SC2332 (15) RF 1988 SC 208 (8) RF 1989 SC 364 (12) R 1989 SC 764 (13) RF 1990 SC 496 (9) RF 1990 SC1086 (18) RF 1992 SC 687 (8) RF 1992 SC 979 (7)
ACT:
Defence of India Rules, 1962, r. 30(1)(b)-"Public order" and "law and order", difference between-Scope of rule.
Constitution of India, 1950, Art. 359(1)-President's Order suspending rights under Arts. 21 and 22-Right to move Supreme Court under Art. 32-Effect on.
HEADNOTE:
Rule 30(1)(b) of the Defence of India Rules, 1962, provided that a State Government might, if it was satisfied with respect to a person that with a view to preventing him from acting in a manner prejudicial, inter alia to "public safety and maintenance of public order" it is necessary to do so, order him to be detained. A Disrict Magistrate to whom the power of the Government of the State of Bihar had been delegated under s. 40(2) of the Defence of India Act, 1962, ordered the detention of the petitioner under -the rule.
The order stated that the District Magistrate was satisfied, that with a view to prevent the petitioner from acting in any manner prejudicial to the "public safety and the maintenance of law and order," it was necessary to detain him. Prior to the making of the order the District Magistrate had, however, recorded a note stating that having read the report of the Police Superintendent that the petitioner's being at large was prejudicial to "public safety and maintenance of public order", he was satisfied that the petitioner should be detained under the rule. The petitioner moved this Court under Art. 32 of the Constitution for a writ of habeas corpus directing his release from detention, contending that : (i) though an order of detention to prevent acts prejudicial to public order may be justifiable an order to prevent acts prejudicial to law and order would not be justified by the rule; (ii) the order mentioned a notification which did not contain the necessary delegation; (iii) the District Magistrate acted beyond his jurisdiction by considering the danger not only in his district but in the entire State; and (iv) all the conditions mentioned in the rule must be cumulatively applied before the order of detention could be made. The respondent-State raised a preliminary objection that the President of India had made an Order under Art. 359(1) that the right of a person to move any court for the enforcement of the rights conferred by Arts. 21 and 22 shall remain suspended for the period during which the proclamation of emergency under Art. 352 was in force, if such person had been deprived of any such rights under the Defence of India Act or any rule made there under, and that therefore, this Court was prevented from entertaining the petition.
HELD : (Per Full Court) : (i) The petition was maintainable.
Per Sarkar, J. : The order of the President does not form a bar to all applications for release from detention under the Act or the Rules. Where a person was detained in violation of the mandatory provisions of the Defence of India Act his right to move the Court was not suspended. Since the petitioner contended that the order of detention was not justified by the Act or Rules and was therefore against the provisions of the Act, the petitioner was entitled to be heard. [716 G; 717 A-B] 710 Per Hidayatullah and Bachawat, JJ. : The net result of the President's Order is to stop all claims to enforce rights arising from laws other than the Defence of India Act and the Rules, and the provisions of Art. 22 at variance with the Defence of India Act and the Rules are of no avail. But the deprivation must be in good faith under the Defence of India Act or any rule or order made thereunder. The President's Order does not say that even if a person is proceeded against in breach of the Defence of India Act or the Rules or mala fide he cannot move the Court to complain that the Act and the Rules under colour of which some action was taken, do not warrant it. It follows, therefore. that this Court acting under Art. 32 on a petition for the issue of a writ of habeas corpus must not allow breaches of the Defence of India Act or the Rules to go unquestioned, as Art. 359 and the President's Order were not intended to condone an illegitimate enforcement of the Defence of India Act. [731 B, E, F; 733 B-C] Per Raghubar Dayal, J. : This Court can investigate whether the District Mazistrate exercised the power under r. 30 honestly and bona fide, or not, that is, whether he ordered detention on being satisfied as required by r. 30. [748 H] Per Mudholkar, J. : Before an entry into the portals of this Court could be denied to a detenu, he must be shown an order under r. 30(1) of the Defence of India Rules made by a competent authority stating that it was satisfied that the detenu was likely to indulge in activities which would be prejudicial to one or more of the matters referred to in the rule. If the detenu contends that the order, though it purports to be under r. 30(1), was not competently made, this Court has the duty to enquire into the matter. Upon an examination of the order, if the Court finds that it was not competently made or was ambiguous, it must exercise its power under Art. 32, entertain the petition thereunder and make an appropriate order. [755 H; 756 A-B] Makhan Singh v. State of Punjab, [1964] 4 S.C.R. 797 followed.
(ii) Per Sarkar, Mdayatullah, Mudholkar and Bachawat JJ. :
The petitioner should be set at liberty.
Per Sarkar J. : The order detaining the petitioner would not be in. terms of the rule unless it could be said that the expression "law and order" means the same thing as "Public order". What was meant by maintenance of public order was the prevention of disorder of a grave nature, a disorder which the authorities thought was necessary to prevent in view of the emergent situation created by external aggression; whereas, the expression "maintenance of law and order" may mean prevention of disorder of comparatively lesser gravity and of local significance only. [718 B, D, E] Courts are only entitled to look at the face of the order, because the satisfaction which justifies the order under the rule is the subjective satisfaction of the detaining authority. If on its face an order of detention is in terms of the rule, ordinarily, a court is bound to stay its hands and uphold the order. When an order is on the face of it not in terms of the rule, a court cannot enter into an investigation whether the order of detention was :In fact in terms of the rule. So the State cannot be heard to say of prove that an order was in fact made to prevent acts prejudicial to public order though the order does not say so. It is not a case where the order is only evidence of the detention having been made under the rule. The order is conclusive as to the state of the mind of the person who made it and no evidence is admissible to prove that state of mind. Extraneous evidence such as the note made by the District Magistrate was not admissible lo prove that the rule had been complied with. [718 G-H; 718 B-D 720 G; 722 BC] 711 is not taking too technical a view, but is a matter of substance. If a man can be deprived of his liberty under a rule by the simple process of the making of an order, he can only be so deprived if the order is in terms of the rule.
If for the purpose of justifying the detention such compliance by itself is enough, a non-compliance must have a contrary effect A more reference in the detention order to the rule is not sufficient to show that by "law and order" what was meant was public order". [719 F-G: 720 A-C] The order no doubt mentions another ground of detention, namely, prevention of acts prejudicial to public safety, and in so far as it did so, it was clearly within the rule. But the order has notwithstanding this to be held illegal, though it mentioned a ground on which a legal order of detention could have been based, because, it could not be said in what manner and to what extent the valid and invalid grounds operated an the mind of the authority concerned and contributed to the creation of subjective satisfaction. [722 E; G-11] Shibban Lal Saksena v. State of U.P. [1954] S.C.R. 418, followed.
Per Hidayatullah and Bachawat, JJ. : The satisfaction of the detaining authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face, passed by a competent authority in good faith, would be a complete answer to a petition for a writ of habeas corpus. But when from the order itself circumstances appear which raise a doubt whether the officer concerned had not misconceived his own powers, there is need to pause and enquire. The enquiry then 'Is, not with a view to investigate the sufficiency of the materials but into the officer's notions of his power.
If the order passed by him showed that he thought his powers were more extensive than they actually were, the order might fail to be a good order. No doubt. what matters is the substance; but the form discloses the approach of the detaining authority to the serious question and the error in the form raises the enquiry about the substance. When the liberty of the citizen is put within the reach of authority and the scrutiny by courts is barred, the action must comply not only with the substantive requirements of law but also with those forms which alone can indicate that the substance has been committed with. [739 H; 740 B-C, E; 741 C; F] The District Magistrate acted to "maintain law and order" and his order could not be read differently even if there was an affidavit the other way. If he thought in terms of "public order" he should have said so in his order, or explained how the error arose. A mere reference to his earlier note was not sufficient and the two expressions cannot be reconciled by raising an air of similitude between them. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. One has to imagine three concentric circles, the largest representing "law and order", the next representing "public order" and the smallest representing "security of State". An act may affect "law and order " but not "public order," just as an act may affect "public order" but not "security of the State". Therefore, by using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules. [740 E-F, H; 746 B-E; 747 D, E] The order on its face shows two reasons, but it was not certain that the District Magistrate was influenced by one consideration and not both, because, it was not oven to the Court to enquire into the material on which the District Magistrate acted, or to examine the reason-,; to see whether his action fell within the other topic. namely. public safety. [746 F-G] 712 Per Mudholkar J. : The use of the expression "maintenance of law and order" in the impugned order makes it ambiguous on its face and therefore the order must be held to be had. No doubt the order also refers to public safety. But then the questions arise : What is it that weighed with the District Magistrate, the apprehension regarding public safety or an apprehension regarding maintenance of law and order? Was the apprehension entertained by the District Magistrate that the petitioner, if left at large, was likely to do something which will imperil the maintenance of public order generally, or was it that he apprehended that the petitioner's activities may cause disturbances in a particular locality ? His order, which was the only material which could be considered, gave no indication on those questions. The expression "law and order" does not find any place in the rule and is not synonymous with "public order". "Law and order" is a comprehensive expression in which would be included not merely public order but matters such as public peace, tranquility, orderliness in a locality or a local area and perhaps other matters. [756 H; 757 A, C, D, F] Per Raghubar Dayal J. (dissenting) : The District Magistrate made the impugned order on his being satisfied that it was necessary to do so with a view to prevent the petitioner from acting in a manner prejudicial to public safety and maintenance of public order. The impugned order was therefore valid and consequently, the petitioner could not move this Court for the enforcement of his rights under Arts. 21 and 22 in view of the President's Order under Art.
359(1). [755 B-C] The detaining authority s free to establish that any defect in the detention order is of form only and not of substance it being satisfied of the necessity to detain the person for a purpose mentioned in r. 30, though the purpose has been inaccurately stated in the detention order. The existence of satisfaction does not depend on what is stated in the order and can be established by the District Magistrate by his affidavit. His omission to refer to "maintenance of public order" does not mean that he was not so satisfied, especially when his note refers to the petitioner being at large to be prejudicial to public safety and the maintenance of public order. The petitioner's affidavit and rejoinder show that the District Magistrate was satisfied of the necessity of detaining the petitioner to prevent him from acting in a manner prejudicial to the public order, because of the setting of events that happened on that date.
"Maintenance of law and order" may be an expression of wider import than "public order", but in the context in which it was used in the detention order and in view of its use generally, it should be construed to mean maintenance of law and order in regard to maintenance of public tranquility.
[749 C-D; 750 C-D; 751 C, F-G] Sodhi Shamsher Singh v. State of Pepsu, A.I.R. 1954 S.C.
276, referred to.
Even if the expression "maintenance of law and order" in the impugned order be not construed as referring to "maintenance of public order" the impugned order cannot be said to be invalid in view of its being made with a double objective, that is, with the object of preventing the petitioner from acting prejudicially to the public safety and the maintenance of law and order. His satisfaction with respect to any of the purposes mentioned in r. 30(1) which would justify his ordering the detention of a person is sufficient for the validity of the order. There is no room for considering that be might not have passed the order merely with one object in view, the object being to prevent him from acting prejudicially to public safety. It is not a case where his satisfaction was based on two grounds one of which is irrelevant or non-existent. There does not appear to be any reason why the District Magistrate would not have passed the order of 713 detention against the petitioner on the satisfaction that it was necessary to prevent him from acting prejudicially to public safety. [752 H; 753 B-D; 754 A-Di (iii) Per Sarkar, Hidayatullah, Raghubar Dayal and Bachawat, JJ. The delegation was valid.
Per Sarkar J. : In spite of the mistake in the order as to the Notification delegating the power, evidence could be given to show that the delegation had in fact been made, because, the mistake did not vitiate the order. To admit such evidence would not be going behind the face of the order, because, what is necessary to appear on the face of the order is the satisfaction of the Authority of the necessity for detention for any of the reasons mentioned in r. 30(1) (b), and not his authority to make the order. [721 D, F-G] Per Hidayatullah, Raghubar Dayal and Bachawat JJ. : There was only a clerical error in mentioning the wrong notification and being a venial fault did not vitiate the order of detention. Also, s. 40(2) does not require the imposition of any conditions but only permits it. [737 F; 738 A; 741 G; 748 D] (iv) Per Hidayatullah, Raghubar Dayal and Bachawat, JJ. :
There was nothing wrong in the District Magistrate taking a broad view of the petitioner's activities so as to weigh the possible harm if he was not detained. Such a viewing of the activities of a person before passing the order against him does not necessarily spell out extra-territoriality, but is really designed to assess properly the potentiality of danger which is the main object of the rule lo prevent. [737 G-H; 748 D] (v) Per Hidayatullah, Raghubar Dayal, Mudhilkar and Bachawat, JJ. It is not necessary that the appropriate authority should entertain an apprehension that the person to be detained is likely to participate in every one of the activities referred to in the rule. [739 F; 748 D; 756 F]
ORIGINAL JURISDICTION: Writ Petition No. 79 of 1965.
Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights.
The petitioner appeared in person.
A. V. Viswanatha Sastri and S. P. Varma, for the respondents.
Sarkar J., Hidayatullah J. (on behalf of himself and Bachawat J.) and Mudholkar J. delivered separate concurring Judgments. Raghubar Dayal J. delivered a dissenting Opinion.
Sarkar, J. Dr. Ram Manohar Lohia, a member of the Lok Sabha, has moved the Court under Art. 32 of the Constitution for a writ of habeas corpus directing his release from detention under an order passed by the District Magistrate of Patna.
The order was purported to have been made under r. 30(1)(b) of the Defence of India Rules, 1962.
Dr. Lohia, who argued his case in person, based his claim to be released on a number of grounds. I do not propose to deal with all these grounds for I have come to the conclusion that he is entitled to be released on one of them and to the discussion of 714 that ground alone I will confine my judgment. With regard to his ,other grounds I will content myself only with the observation that as at present advised, I have not been impressed by them.
The order of detention runs thus : "Whereas 1, J. N. Sahu, District Magistrate, Patna, am satisfied that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of law and order, it is necessary to make an order that he be detained. Now, therefore, in exercise of the powers conferred by clause (b) of sub-rule (1) of rule 30 of the Defence of India Rules, 1962 read with Notification No.180/COW I hereby direct that Dr. Ram Manohar Lohia be arrested and detained in the Contra Jail Hazaribagh, until further orders." Now the point made by Dr. Lohia is that this order is not in terms of the rule under which it purports to have been made and, therefore, furnishes no legal justification for detention.
The reason why it is said that the order is not in terms of the rule is that the rule does not justify the detention of a person to prevent him from acting in a manner prejudicial to the maintenance of law and order while the order directs detention for such purpose. It is admitted that the rule provides for an order of detention being made to prevent act prejudicial to the maintenance of public order, but it is said that public order and law and order are not the same thing, and, therefore, though an order of detention to prevent acts prejudicial to public order might be justifiable, a similar order to prevent acts prejudicial to law and order would not be justified by the rule. It seems to we that this contention is well founded.
Before proceeding to state my reasons for this view, I have to dispose of an argument in bar advanced by the respondent State. That argument is that the petitioner has, in view of a certain order of the President to which I will presently refer, no right to move the Court under Art. 32 for his release. It is said that we cannot, therefore, hear Dr.
Lohia's application at all. To appreciate this contention, certain facts have to be stated and I proceed to do so at once.
Article 352 of the Constitution gives the President of India a power to declare by Proclamation that a grave emergency exists whereby the security of India is threatened inter alia by external aggression. On October 26, 1962, the President issued a Proclamation under this article that such an emergency existed. This presumably was done in view of China's attack on the north eastern frontiers of India in September 1962. On the same day as the 715 Proclamation was made, the President passed the Defence of India Ordinance and rules were then made thereunder on November 5, 1962. The Ordinance was later, on December 12, 1962, replaced by the Defence of India Act, 1962 which however continued in force the rules made under the Ordinance. On November 3, 1962, the President made an order under Art. 359(1) which he was entitled to do, declaring "that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation........ is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 or any rule or order made thereunder." There is no doubt that the reference in this Order to the "Defence of India Ordinance, 1962" must, after that Ordinance was replaced by the Act, as earlier stated, be understood as a reference to the Act: see Mohan Chowdhury v. The Chief Commissioner, Tripura(1). I should now state that the Proclamation is still in force.
It is not in dispute that the present petition has been made for the enforcement of Dr. Lohia's right to personal liberty under Arts. 21 and 22. These articles in substance-and it should suffice for the present purpose to say no more--give people a certain personal liberty. It is said by the respondent State that the President's Order under Art.
359(1) altogether prevents us from entertaining Dr. Lohia's petition and, therefore, it should be thrown out at once.
This would no doubt, subject to certain exceptions to which a reference is not necessary for the purposes of the present judgment, be correct if the Order of November 3, 1962 took away all rights to personal liberty under Arts. 21 and 22.
But this, the Order does not do. It deprives a person of his right to move a court for the enforcement of a right to such personal liberty only when he has been deprived of it by the Defence of India Act-it is not necessary to refer to the Ordinance any more as it has been replaced by the Act-or any rule or order made thereunder. If he has not been so deprived, the Order does not take away his right to move a court. Thus if a person is detained under the Preventive Detention Act, 1950 , his right to move the Court for enforcement of his rights under Arts. 21 and 22 remains intact. That is not a case in which his right to do so can be said to have been taken away by the President's Order.
This Court has in fact heard applications under Art. 32 challenging a detention under (1) [1964] 3 S.C.R. 442.
7 16 that Act : see Rameshwar Shaw v. District Magistrate of Burdwan(1). If any person says, as Dr. Lohia does, that he has been deprived of his personal liberty by an order not made under the Act or the Rules there is nothing in the President's Order under Art. 359(1) to deprive him of his right to move the Court under Art. 32. The Court must examine his contention and decide whether he has been detained under the Act or the Rules and can only throw out his petition when it finds that he was so detained, but not before then. If it finds that he was not so detained, it must proceed to hear his petition on its merits. The right under Art. 32 is one of the fundamental rights that the Constitution has guaranteed to all persons and it cannot be taken away except by the methods as provided in the Constitution, one of which is by an order made under Art.
359. The contention that an order under that article has not taken away the constitutional right to personal liberty must be examined.
Mr. Verma said that Smith v. East Elloe Rural District Council(1) supported the contention of the respondent State. I do not think so. That case turned on an entirely different statute. That statute provided a method of challenging a certain order by which property was compulsorily purchased and stated that it could not be questioned in any other way at all. It was there held that an action to set aside the order even on the -round of having been made mala fide, did not lie as under the provision no action was maintainable for the purpose. That case is of no assistance in deciding the question in what circumstance a right to move the court has been taken away by the entirely different provisions that we have to consider. Here only a right to move a court in certain circumstances has been taken away and the question is, has the court been moved on the present occasion in one of those circumstances ? The President's Order does not bar an enquiry into that question. Apart from the fact that the reasoning on which the English case is based, has no application here, we have clear observations in judgments of this Court which show that the Order of the President does not form a bar to all applications for release from detention under the Act or the Rules. I will refer only to one of them. In Makhan Singh v. The State of Punjab (3) it was said, "If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the Order, his right to move any court in that behalf is not suspended" and by way of illustration of this proposition, a case where a (1) [1964] 4 S.C.R. 921.
(2) [1956] L.R. A.C. 736.
(3) [1964] 4 S.C.R. 797.
717 person was detained in violation of the mandatory provisions of the Defence of India Act was mentioned. That is the present case as the petitioner contends that the order of detention is not justified by the Act or Rules and hence is against its provisions. The petitioner is entitled to be heard and the present contention of the respondent State must be held to be ill founded and must fail.
I now proceed to consider the merits of Dr. Lohia's contention that the Order detaining him had not been made under the Defence of India Rules. I here pause to observe that if it was not so made, there is no other justification for his detention; none is indeed advanced. He would then be entitled to his release.
I have already stated that the Proclamation of Emergency was made as the security of India was threatened by external aggression. That Proclamation of emergency was the justification for the Act. The Act in fact recited the Proclamation in its preamble. Section 3 of the Act gave the Central Government power to make rules providing for the detention of persons without trial for various reasons there mentioned. Rule 30(1) (b) under which the order of detention of Dr. Lohia was made was framed under s. 3 and is in these terms : "The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplier, and services essential to the life of the community, it is necessary to do so, may make an order(a)........ (b) directing that he be detained." As I have said earlier, the order was made by the District Magistrate, Patna, to whom the power of the Government of the State of Bihar in this regard had been duly delegated under s. 40(2) of the Act.
Under this rule a Government can make an order of detention against a person if it is satisfied that it is necessary to do so to prevent him from acting in a manner prejudicial, among other things to public safety and the maintenance of public order. The detention order in this case is based on the ground that it was necessary to make it to prevent Dr. Lohia from acting in any manner prejudicial to public safety and the maintenance of law and order. I will, in discussing the contention of Dr. Lohia, proceed on the basis as if the order directing detention was only for preventing him from acting in a manner prejudicial to the 718 maintenance of law and order. I will consider what effect the inclusion in the order of detention of a reference to the necessity for maintaining public safety has, later. The question is whether an order could be made legally under the rule for preventing disturbance of law and order. The rule does not say so. The order, therefore, would not be in terms of the rule unless it could be said that the expression "law and order" means the same thing as "public order" which occurs in the rule. Could that then be said? I find no reason to think so. Many of the things mentioned in the rule may in a general sense be referable to the necessity for maintaining law and order. But the rule advisedly does not use that expression.
It is commonplace that words in a statutory provision take their meaning from the context in which they are used. The context in the present case is the emergent situation created by external aggression. It would, therefore, be legitimate to hold that by maintenance of public order what was meant was prevention of disorder of a grave nature, a disorder which the authorities thought was necessary to prevent in view of the emergent situation. It is conceivable that the expression "maintenance of law and order" occurring in the detention order may not have been used in the sense of prevention of disorder of a grave nature. The expression may mean prevention of disorder of comparatively lesser gravity and of local significance only.
To take an illustration, if people indulging in the Hindu religious festivity of Holi become rowdy, prevention of that disturbance may be called the maintenance of law and order.
Such maintenance of law and order was obviously not in the contemplation of the Rules.
What the Magistrate making the order exactly had in mind, by the use of the words law and order, we do not know. Indeed, we are not entitled to know that for it is well-settled that courts cannot enquire into the grounds on which the Government thought that it was satisfied that it was necessary to make an order of detention. Courts are only entitled to look at the face of the order. This was stressed on us by learned counsel for the respondent State and the authorities fully justify that view, If, therefore, on its face an order of detention is in to of the rule, a court is bound to stay its hands and uphold the order. I am leaving her out of consideration a contention that an order good on the face of it is bad for reasons dehors it, for example, because it had been made mala fide. Subject to this and other similar exceptions--to which I have earlier referred and as to 719 which it,, is unnecessary to say anything in the present context and also because the matter has already been examined by this Court in a number of cases court cannot go behind the face of the order of detention to determine its validity.
The satisfaction of the Government which justifies the order under the rule is a subjective satisfaction. A court cannot enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If that is so,-and that indeed is what the respondent State contends.-it seems to me that when an order is on the face of it not in terms of the rule, a court cannot equally enter into an investigation whether the order of detention was in fact, that is to say, irrespective of what is stated in it, in terms of the rule. In other words, in such a case the State cannot be heard to say or prove that the order was in fact made, for example, to prevent acts prejudicial to public order which would bring it within the rule though the order does not say so. To allow that to be done would be to uphold a detention without a proper order. The rule does not envisage such a situation. The statements in the affidavit used in the present case by the respondent State are, therefore, of no avail for establishing that the order of detention is in terms of the rule. The detention was not under the affidavit but under the order. It is of some significance to point out that the affidavit sworn by the District Magistrate who made the order of detention does not say that by the use of the expression law and order he meant public order.
It was said that this was too technical a view of the matter; there was no charm in words used. I am not persuaded by this argument. The question is of substance.
If a man can be deprived of his liberty under a rule by the simple process of the making of a certain order, he can only be so deprived if the order is in terms of the rule. Strict compliance with the letter of the rule is the essence of the matter. We are dealing with a statute which drastically interferes with the personal liberty of people, we are dealing with an order behind the face of which a court is prevented from going. I am not complaining of that.
Circumstances may make it necessary. But it would be legitimate to require in such cases strict observance of the rules. If them is any doubt whether the rules have been strictly observed, that doubt must be resolved in favour of the detenu. It is certainly more than doubtful whether law and order means the same as public order. I am not impressed by the argument that the 720 reference in the detention order to r. 30(1) (b) shows that by law and order what was meant was public order. That is a most mischievous way of approaching the question. If that were right, a reference to the rule in the order might equally justify all other errors in it. Indeed it might with almost equal justification then be said that a reference to the rule and an order of detention would be enough. That being so, the only course open to us is to hold that the rules have not been strictly observed. If for the purpose of justifying the detention such compliance by itself is enough, a non-compliance must have a contrary effect.
Carltona Ltd. v. Commissioners of Works(1) is an interesting case to which reference may be made in this connection. It turned on a statutory Regulation empowering a specified authority to take possession of land for the purposes mentioned in it in various terms but which term-, did not include the expression " national interest". Under this Regulation possession of certain premises of the Carltona Company was taken after serving a notice on it that was being done "in the national interest". It was contended by the Carltona Company that it had been illegally deprived of the possession of its premises because the notice showed that possession was not being taken in terms of the Regulation. This contention failed as it was held that the giving of the notice was not a prerequisite to the exercise of the powers under the Regulation and that the notice was no more than a notification that the authorities were exercising the powers. It was said that the notice was useful only as evidence of the state of the mind of the writer and, that being so, other evidence was admissible to establish the fact that the possession of the premises was being taken for the reasons mentioned in the Regulation.
Our case is entirely different. It is not a case of a notice. Under r. 30(1) (b) a person can be detained only by an order and there is no doubt that the order of detention has to be in writing. It is not a case where the order is only evidence of the detention having been made under the rule. It is the only warrant for the detention. The order further is conclusive as to the state of the mind of the person who made it; no evidence is admissible to prove that state of mind. It seems to me that if the Carltona case was concerned with an order which alone resulted in the dispossession, the decision in that case might well have been otherwise. I would here remind, to prevent any possible misconception, that I am not considering a case where (1) [1943) 2 All E.R. 560.
721 the order is challenged on the ground of mala fides or other similar grounds to which I have earlier referred.
Before leaving this aspect of the case, it is necessary to refer to two other things. The first is a mistake appearing in the order of detention on which some argument was based by Dr. Lohia for quashing the order. It will be remembered that the order mentioned a certain Notification No. 180/CW.
The Notification intended to be mentioned however was one No. 1 1 15/CW and the Notification No. 180/CW had been mentioned by mistake. It was under Notification No. II 15/CW that the power of the State Government to make an 'order of detention was delegated to the District Magistrate under the provisions of s. 40(2) of the Act to which I have earlier referred. The reference to the notification was to indicate the delegation of power. The Notification actually mentioned in the order did not, however, contain the necessary delegation. The result was that the order did not show on its face that the District Magistrate who had made it had the necessary authority to do so. This mistake however did not vitiate the order at all. Nothing in the rules requires that an order of detention should state that the authority making it has the power to do so. It may be that an order made by an authority to whom the Government's power has not been delegated, is a nullity and the order can be challenged on that ground. This may be one of the cases where an order good on its face may nonetheless be illegal.
When the power of the person making the order is challenged, the only fact to be proved is that the power to make the order had been duly delegated to him. That can be proved by the necessary evidence, that is, by the production of the order of delegation. That would be a case somewhat like the Carltona case. In spite of the mistake in the order as to the Notification delegating the power, evidence can be given to show that the delegation had in fact been made. To admit such evidence would not be going behind the face of the order because what is necessary to appear on the face of the order is the satisfaction of the authority of the necessity for the detention for any of the reasons mentioned in r. 30 (1) (b) and not the authority of the maker of the order.
The second thing to which I wish to refer is that it appeared from the affidavit sworn by the District Magistrate that prior to the making of the order, he had recorded a note which raja in these words : "Perused the report of the Senior S. P. Patna for detention of Dr. Ram Manohar Lohia, M.P. under rule 30(1) (b) of the Defence of India Rules, on the ground that his being at .
C. 1.165-3 722 large is prejudicial to the public safety and maintenance of public order. From the report of the Sr. S. P., Patna, I am satisfied that Dr. Ram Manohar Lohia, M.P. aforesaid be detained under rule 30(1)(b) of the Defence of India Rules.
Accordingly, I order that Dr. Ram Manohar Lohia be detained.......... am unable to see that this note is of any assistance to the respondent State in this case. It is not the order of detention. The respondent State does not say that it is. I have earlier stated that extraneous evidence is not admissible to prove that the rule has been complied with though the order of detention does not show that,.
Indeed, this note does not even say that the District Magistrate was satisfied that it was necessary to make an order of detention to prevent Dr. Lohia from acting in a manner prejudicial to the maintenance of public order. It only says that the Superintendent of Police reported that he was so satisfied. The satisfaction of the Superintendent of Police would provide no warrant for the detention or the order; with it we have nothing to do.
For these reasons, in my view, the detention order if it had been based only on the ground of prevention of acts prejudicial to the maintenance of law and order, it would not have been in terms of r. 30(1)(b) and would not have justified the detention. As I have earlier pointed out, however, it also mentions as another ground for detention, the prevention of acts prejudicial to public safety. In so far as it does so, 'it is clearly within the rule. Without more, we have to accept an order -made on that ground as a perfectly legal order. The result then is that the detention order mentions two grounds -one of which is in terms of the rule while the other is not. What then is the effect of that ? Does it cure the illegality in the order that I have earlier noticed ? This question is clearly settled by authorities. In Shibban Lal Saksena v. The State of Uttar Pradesh(1) it *as held that such an order would be a bad order, the reason being that it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction which formed the basis of the order. The-order has, therefore, to be held illegal though it mentioned a ground on which a legal order of detention could have been based.
I should also point out that the District Magistrate has not said in his affidavit that he would have been satisfied of the necessity of the detention order only (1) [1954] S.C.R. 418.
723 for the reason that it was necessary to detain Dr. Lohia to prevent him from acting in a manner prejudicial to public safety.
In the result, in my view, the detention order is not under the Rules. The detention of Dr. Lohia under that order is not legal and cannot be justified. He is entitled to be set at liberty and I would order accordingly.
Hidayatullah, J. Dr. Ram Manohar Lohia, M.P., has filed this petition under Art. 32 of the Constitution asking for a writ of habeas corpus for release from detention ordered by the District Magistrate, Patna, under Rule 30(1)(b) of the Defence of India Rules, 1962. He was arrested at Patna on the night between 9th and 10th August, 1965. As it will be necessary to refer to the terms of the order served on him it is reproduced here "ORDER No. 3912 C. Dated, Patna, the 9th August 1965 Whereas 1, J. N. Sahu, District Magistrate, Patna, am satisfied with respect to the person known as Dr. Ram Manohar Lohia, Circuit House, Patna, that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of law and order, it is necessary to make an order that he be detained.
Now, therefore, in exercise of the powers conferred by clause (b) of sub-clause (i) of rule 30 of the Defence of India Rules, 1962, read with Notification No. 180/ CW, dated the 20th March, 1964, of the Government of Bihar, Political (Special) Department, I hereby direct that the said Dr. Ram Manohar Lohia be arrested by the police wherever found and detained in the Central Jail, Hazaribagh, until further orders.
Sd/J. N. Sahu, 9-8-1965 District Magistrate, Patna. Sd/Ram Manohar Lohia. 10th August-1.40." Dr. Lohia was lodged in the Hazaribagh Central Jail at 3-30 p.m. on August 10, 1965. He sent a letter in Hindi together with an affidavit sworn in the jail to the Chief Justice, which was received on August 13, 1965, in the Registry of this Court. Although the petition was somewhat irregular, this Court issued a rule and as 724 no objection has been taken on the ground of form we say nothing more about it.
In his affidavit Dr. Lohia stated that he was arrested at midnight on August 9, 1965 and was told that it was on charges of arson but later was served with the order of detention and that in this way his arrest for a substantive offence was turned into preventive detention. He further stated that the order of detention showed that he was to be detained in Bankipur Jail but the name of the Jail was scored out and "Central Jail, Hazaribagh" was substituted which led him to conclude that typed orders of detention were kept ready and that the District Magistrate did not exercise his mind in each individual case. He contended that his detention under Rule 30 (1) (b) was illegal because, according to him, that rule dealt with prejudicial activities in relation to the defence of India and civil defence and not with maintenance of law and order of a purely local character. He alleged that the arrest was mala fide and malicious; that it was made to prevent him from participating in the House of the People which was to go into Session from August 16 and particularly to keep him away from the debate on the Kutch issue. He further alleged that he had only addressed a very large gathering in Patna and had disclosed certain things about the Bihar Government which incensed that Government and caused them to retaliate in this manner and that detention was made to prevent further disclosures by him.
In answer to Dr. Lohia's affidavit two affidavits were filed on behalf of the respondents. One affidavit, filed by the District Magistrate, Patna, denied that there was any malice or mala fides in the arrest of Dr. Lohia. The District Magistrate stated that he had received a report from the Senior Superintendent of Police, Patna, in regard to the conduct and activities of Dr. Lohia and after considering the report he had ordered Dr. Lohia's detention to prevent him from acting in any manner prejudicial to the public safety and maintenance of public order. He stated further that he was fully satisfied that the forces of disorder "which were sought to be let loose if not properly controlled would envelop the whole of the State of Bihar and possibly might spread in other parts of the country which would necessarily affect the problem of external defence as well in more ways than one". He said that the report of the Senior Superintendent of Police, Patna, contained facts which he considered sufficient for taking the said action but he could not disclose the contents of that report in the public interest. He sought to correct, what he called, a slip in the order passed by him, by stating that notification No. 11155C, dated 11th August 725 1964, was meant instead of the notification mentioned there.
He stated further that as the disturbance was on a very large scale it was thought expedient to keep ready typed copies of detention orders and to make necessary alterations in them to suit individual cases, at the time of the actual issuance of the orders, and that it was because of this that the words "Central Jail Hazaribagh" were substituted for "Bankipur Jail". He denied that he had not considered the necessity of detention in each individual case. He repudiated the charge that the arrest was made at the instance of Government and affirmed that the action was taken on his own responsibility and in the discharge of his duty as District Magistrate and not in consultation with the Central or the State Governments. He denied that the arrest and detention were the result of anger on the part of any or a desire to prevent Dr. Lohia from circulating any damaging information about Government. The District Magistrate produced an order which, he said, was recorded before the order of detention. As we shall refer to that order later it is reproduced here "9.8.65.
Perused the report of the Senior S.P., Patna, for detention of Dr. Ram Manohar Lohia, M.P., under rule 30 (1) (b) of the Defence of India Rules, on the ground that his being at large is prejudicial to the public safety and maintenance of public order. From the report of the Sr. S.P., Patna, I am satisfied that Dr. Ram Manohar Lohia, M.P., aforesaid be detained under rule 30(1)(b) of the D.-fence of India Rules. Accordingly, I order that Dr. Ram Manohar Lohia be detained under rule 30(1)(b) of the Defence of India Rules read with Notification No. 180/CW dated 20.3.64 in the Hazaribagh Central Jail until further orders.
Send four copies of the warrant of arrest to the Sr. S.P., Patna, for immediate compliance. He should return two copies of it after service on the detenu.
Sd/J. N. Sahu, District Magistrate, Patna".
The second affidavit was sworn by Rajpati Singh, Police Inspector attached to the Kotwali Police Station, Patna. He stated in his affidavit that the order was served on Dr. Lohia at 1-40 A.M. on August 1O, 1965 and not at midnight.
He denied that Dr. Lohia was arrested earlier or that at the time of his arrest, he was informed 7 26 that the arrest was for an offence or offences of arson. He admitted, however, that he, had told him that cases of arson and toot had taken place. He affirmed that there was no charge of arson against Dr. Lohia.
Dr. Lohia filed a rejoinder affidavit and in that affidavit he stated that the internal evidence furnished by the order taken with the counter affidavits disclosed that his arrest and detention were patently illegal. He pointed out that while Rule 30(1)(b) provided that detention could be made for the maintenance of public order, the order stated that Dr. Lohia was arrested for maintenance of law and order. He characterised the counter affidavits as full of lies and narrated other facts intending to show that there was a conspiracy to seal his mouth so that disclosures against the Bihar Government might not be made. This represents the material on which the present petition is based or opposed.
The petition was argued by Dr. Lohia in person though he was receiving assistance in constructing his arguments. His contentions are that he is not being detained under the Defence of India Rules but arbitrarily; that even if he is being detained under the said Rules the law has been flagrantly violated; that the order passed against him is mala fide; and that the District Magistrate did not exercise the delegated power but went outside it in various ways rendering detention illegal.
On behalf of the State a preliminary objection is raised that the application itself is incompetent and that by the operation of Art. 359 read with the President's Order issued under that Article on November 3, 1962, Dr. Lohia's right to move the Supreme Court under Art. 32 of the Constitution is taken away during the period of emergency proclaimed under Art. 352 as long as the President's Order continues. On merits it is contended on behalf of the State of Bihar that the petition, if not barred, does not make out a case against the legality of the detention; that this Court cannot consider the question of good faith and that the only enquiry open to this Court is whether there is or is not an order under Rule 30(1)(b) of the Defence of India Rules 1962. If this Court finds that there is such an order the enquiry is closed because the petition must then be considered as incompetent. The State Government admits that the words of Rule 30(1)(b) and s. 3 of the Defence of India Act were not used in the order of detention but contends that maintenance of public order and maintenance of law and order do not indicate different things and that the area covered by maintenance of law and order is the same if not smaller than the area covered by the expression maintenance of public 727 order. We shall go into the last contention more elaborately after dealing with the preliminary objection.
Questions about the right of persons detained under the Defence of India Rules to move the Court have come up frequently before this Court and many of the arguments which are raised here have already been considered in a series of cases. For example, it has been ruled in Mohan Choudhury v. Chief Commissioner, Tripura(1) that the right of any person detained under the Defence of India Rules to move any court for the enforcement of his rights conferred by Arts. 21 and 22 of the Constitution remains suspended in view of the President's Order of November 3, 1962. It has also been ruled that such a person cannot raise the question that the Defence of India Act or the Rules are not valid because, if allowed to do so, that would mean that the petitioner's right to move the court is intact. Other questions arising from detentions under the Defence of India Rules were further considered in Makhan Singh v. The State of Punjab(1). It is there pointed out that, although the right of the detenu to move the Court is taken away that can only be in cases in which the proper detaining authority passes a valid order of detention and the order is made bona fide for the purpose which it professes. It would, therefore, appear from the latter case that there is an area of enquiry open before a court will declare that the detenu has lost his right to move the court. That area at least embraces an enquiry into whether there is action by a competent authority and in accordance with Defence of India Act and the Rules thereunder. Such an enquiry may not entitle the court to go into the merits of the case once it is establish-Id that proper action has been taken, for the satisfaction is subjective, but till that appears the court is bound to enquire into the legality of the detention. It was contended that Makhan Singh's(2) case arose under Art.
226 and that what is stated there applies only to petitions under that article. This is a misapprehension. The ruling made no difference between the Art. 32 and Art. 226 in the matter of the bar created by Art. 359 and the President's Order. What is stated there applies to petitions for the enforcement of Fundamental Rights whether by way of Art. 32 or Art. 226.
Mr. Verma appearing for the State of Bihar, however, contends that the area of the enquiry cannot embrace anything more than finding out whether there is an order of detention or not and the moment such an order, good on its face, is produced all enquiry into good faith, sufficiency of the reasons or the legality or illegality (1) [1964] 3 S.C.R. 442.
(2) [1964) 4 S.C.R. 797.
728 of the action comes to an end, for to go into such matters is tantamount to allowing the petitioner to move the court which the President's Order does not permit. He contends that the courts' power to issue a writ of habeas corpus in such cases is taken away as completely as if cl. (2) of Art.
32 made no mention of the writ of habeas corpus. According to him, an order under Rule 30(1)(b) proper on its face, must put an end to enquiry of any kind. In view of this objection it is necessary to state the exact result of the President's Order for this has not been laid down in any earlier decision of this Court.
The President declared a state of grave emergency by issuing a Proclamation under Art. 352 on October 26, 1962. This Proclamation of Emergency gave rise to certain extraordinary powers which are to be found in Part XVIII of the Constitution, entitled Emergency Provisions. Article 358 suspended the provisions of Art. 19 during the Emergency and Art. 359 permitted the suspension of the enforcement of the rights conferred by Part 111. That article reads :
"359. Suspension of the enforcement of the rights conferred by Part III during emergencies (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
(2) An order made as aforesaid may extend to the whole or any part of the territory of India.
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament." The President issued an order on November 3, 1962. The Order reads :
"ORDER New Delhi, the 3rd November, 1962.
G.S.R. 1454.-In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of article 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder.
No. F. 4/62-Poll(Spl.) V. VISWANATHAN, Secy." As a result of the above Order the right of any person to move any court for the rights conferred by Arts. 21 and 22 of the Constitution remains suspended, if such person is deprived of any such rights under the Defence of India Ordinance 1962 ('now the Defence of India Act, 1962) or any rule or order made thereunder. No doubt, as the article under which the President's Order was passed and also that Order say, the right to move the court is taken away but that is in respect of a right conferred on any person by Arts. 21 and 22 and provided such person is deprived of the right under the Defence of India Ordinance (now the Act) or any rule or order made thereunder. Two things stand forth.
The first is that only the enforcement in a court of law of rights conferred by Arts. 21 and 22 is suspended and the second is that the deprivation must be under the Defence of India Ordinance (now the Act) or any rule or order made thereunder. The word "thereunder" shows that the authority of the Defence of India Act must be made out in each case whether the deprivation is by rule or order.
It, therefore, becomes necessary to inquire what are the rights which are so affected ? This can only be found out by looking into the content of the Arts. 21 and 22. Article 21 lays down that no person is to be deprived of his life or personal liberty except according to procedure established by law. This article thinks in terms of the ordinary laws which govern our society when there is no declaration of emergency and which are enacted subject to the provisions of the Constitution including the Chapter on Fundamental Rights but other than those made under the powers 7 30 conferred by the Emergency Provisions in Part XVIII. When the President suspended the operation of Art. 21 he took away from any person dealt with under the terms of his Order, the right to plead in a court of law that he was being deprived of his life and personal liberty otherwise than according to the procedure established by the laws of the country. In other words, he could not invoke the procedure established by ordinary law. But the President did not make lawless actions lawful. He only took away the fundamental right in Art. 21 in respect of a person proceeded against under the Defence of India Act or any rule or order made thereunder. Thus a person so proceeded could not claim to be tried under the ordinary law or bring an action under the ordinary law. But to be able to say that the right to move the court for the enforcement of rights under Art. 21 is suspended, it is necessary to establish that such person has been deprived of any such right under the Defence of India Act or any rule or order made thereunder, that is to say, under the authority of the Act.
The action of the authorities empowered by the Defence of India Act is not completely shielded from the scrutiny of courts. The scrutiny with reference to procedure established by laws other than the Defence of India Act is, of course, shut out but an enquiry whether the action is justified under the Defence of India Act itself is not shut out. Thus the State Government or the District Magistrate cannot add a clause of their own to the Defence of India Act or even the Rules and take action under that clause. Just as action is limited in its extent, by the power conferred, so also the power to move the court is curtailed only when there is strict compliance with the Defence of India Act and the Rules. The Court will not enquire whether any other law is not followed or breached but the Court will enquire whether the Defence of India Act or the Rules have been obeyed or not. That part of the enquiry and consequently the right of a person to move the court to have that enquiry made, is not affected.
The President's Order next refers to Art. 22. That Article creates protection against illegal arrest and detention.
Clause (1) confers some rights on the person arrested.
Clause (2) lays down the procedure which must be followed after an arrest is made. By cl. (3) the first two clauses do not apply to an alien enemy or to a person arrested or detained under any law providing for preventive detention.
Clauses (4), (5), (6) and (7) provide for the procedure for dealing with persons arrested or detained under any law providing for preventive detention, and lay down the minimum or compulsory requirements. The provisions of Art. 22 would have applied to arrest and detentions under the Defence of India 731 Act also if the President's Order had not taken away from such a person the right to move any court to enforce the protection of Art. 22.
The net result of the President's Order is to stop all claims to enforce rights arising from laws other than the Defence of India Act and the Rules and the provisions of Art. 22 at variance with the Defence of India Act and the Rules are of no avail. But the President's Order does not say that even if a person is proceeded against in breach of the Defence of India Act or the Rules he cannot move the court to complain that the Act and the Rules, under colour of which some action is taken, do not warrant it. It was thus that this Court questioned detention orders by Additional District Magistrates who were not authorised to make them or detentions of persons who were already in detention after conviction or otherwise for s
