Fagu Shaw Vs. The State of West Bengal [1973] INSC 251 (20 December 1973)

MATHEW, KUTTYIL KURIEN MATHEW, KUTTYIL KURIEN RAY, A.N. (CJ) CHANDRACHUD, Y.V.

ALAGIRISWAMI, A.

BHAGWATI, P.N.

CITATION: 1974 AIR 613 1974 SCR (2) 832 1974 SCC (4) 152

CITATOR INFO:

R 1974 SC 917 (12) F 1974 SC1739 (3) RF 1974 SC2151 (14) RF 1974 SC2154 (27) F 1975 SC 863 (5) R 1975 SC1005 (4) R 1982 SC 149 (241)

ACT:

Constitution of India, 1950Art. 22(4)(a)(b); (7)(a) and (b)-Whether Parliament was bound to prescribe the maximum period of detention.

Maintenance of Internal Security Act, 1971-S. 13-Whether period fixed in s. 13 is maximum period.

HEADNOTE:

Art. 22(4)(a) of the Constitution says that no law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless an Advisory Board has reported before the expiry of three months that there is in its opinion sufficient cause for such detention. The proviso to the Article provides that nothing in sub-clause (a) shall authorise the detention of any person "beyond the maximum period prescribed by any law made by Parliament under sub-cl. (b) of cl. (7) " of Art.

22. By reason of Art. 22 (4) (b) a person can be detained for a longer period than three months without the necessity of consulting an Advisory Board if "such person is detained in accordance with the provisions of any law made by Parliament under sub-cls. (a) and (b) of cl. (7)" of Art.

22. And Art. 22(7) says "(7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of subclause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)." Section 13 of the Maintenance of Internal Security Act, 1971 as amended by s. 6(d) of the Defence of India Act, 1971 enacts that the "maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under s. 12 shall be twelve months from the date of detention or until the expiry of the Defence of India Act, 1971, whichever is later." Pursuant to an order of detention passed by the Government of West Bengal the petitioners were detained under s. 13 of the Maintenance of Internal Security Act, 1971. In a petition under Art. 32 of the Constitution it was contended (i) that the Parliament was bound to prescribe the maximum period of detention under Art. 22(7) (b) of the Constitution in order that the provision of Art. 22 (4) (a) might operate and is s. 13 of the Act, as amended, did not prescribe the maximum period of detention, the confirmation of detention orders in terms of sec. 13 of the Act was bad; (ii) that since the determination of the period of detention, namely. the expiry of the Defence of India Act, 1971 is depending upon the requirement of the proclamation of emergency, the period fixed in Sec. 13 is Dot "the maximum period" as visualised by Art. 22(7)(b); and (iii) that the Parliament has abdicated its power and duty to fix the maximum period to the executive as the determination of the operation of the proclamation of emergency is a matter within the discretion of the President and he is, therefore, the authority to determine the retirement age of the Defence of India Act.

HELD : (Per Ray C. J., Mathew and Chandrachud, JJ :) (1) There is no provision in the Constitution which either expressly or by necessary implication compels Parliament to prescribe the maximum period of detention under Art. 22 (7) (b). The proviso does not proprio vigore compel the Parliament to fix the 833 maximum period. Nor does Art. 22(7) (b). On the other hand it expressly says otherwise. [841 B] The language of Art. 22 (4) (b) is in marked contrast with that of Art. 22 (4) (a) read with the proviso. Art.

22(4)(b) makes it obligatory upon Parliament, if it wants to pass a law for detaining a person for a period of more than three months, without making a provision in that law for obtaining the opinion of an Advisory Board. L841 DE] Under entry 3 of List III of the Seventh Schedule, both Parliament and State Legislatures have plenary power to pass laws for preventive detention as respects the subjects mentioned therein. A power to pass a law for detention carries with it the incidental power to provide for the period of such detention. Therefore, both Parliament and State Legislatures have power under the entry to provide for detention of a person for a specified period without fixing a specified period. The purpose of Art. 22(4) (a) is to put a curb on that power. What the proviso means is that even if the Advisory Board has reported before the expiration of three months that there is sufficient cause for detention, the period of detention beyond three months shall not exceed the maximum period that might be fixed by any law made by Parliament under Art. 22(7)(b). The proviso cannot mean that even if Parliament does not pass a law fixing the maximum period tinder Art. 22(7) (b), the State legislatures cannot pass a law which provides for detention of a person beyond three months. The period of such detention, viz., detention beyond the period of three months, would then be a matter within the plenary power of Parliament or State legislatures, as the case may be, as such a power is incidental to the power to pass a law with respect to the topics covered by entry 3 of List III. [839 H; 840 A-D] Therefore, but, for the proviso to cl. (4)(a) of Art. 22, the Act as it provides for the opinion of the Advisory Board, can authorise detention of a person for any period, by virtue of the plenary character of the legislative power conferred by the entry. The proviso says in effect that if Parliament fixed the maximum period under Art. 22(7) (b), the power of Parliament and State legislatures to fix the period of detention in a law passed under the entry would be curtailed to that, extent. [840 E-F] Gopalan v. The State of. Madras, [1950] S.C.R. 88, Krishnan v. The State of Madras. [1951] S.C.R. 621 and State of West Bengal v. Ashok Dey and Others, [1972] 1 S.C.C. 199, referred to.

(2) (a) The meaning of the word 'maximum' is "the highest attainable magnitude or quantity (of something); a superior limit," The meaning of the word 'period' is "a course or extent of time; time of duration," Therefore the words 'maximum period' mean the highest or the greatest course or extent or stretch of time, which may be measured in terms of years, months or days as well as in terms of the occurrence of an event or the continuance of the state of affairs. [842 G] (b) It is not necessary that the Parliament should have fixed a period in terms of years, months or days in order that it might be the "maximum period" for the purpose of Art. 22(7)(b). As the object of preventive detention is to prevent persons from acting in a manner prejudicial to the maintenance of internal security or public order or supplies or services essential to the community or other objects specified by Entry 9 List 1, the power to detain must be adequate in point of duration to achieve the object. If the maximum period can be fixed only in terms of years, months or days, certainly it would have been open to Parliament to fix a long period in s. 13 and justify it as "the maximum period". [843 D-E] (3) It is not correct to say that the Parliament in fixing the duration of the maximum period of detention with reference to an event like the cessation of the period of emergency, has in any way, abdicated its power or function to fix the maximum period or delegated it to the President.

There can be no doubt that it is Parliament that has fixed the maximum period in s. 13 of the Act. It cannot be presumed that the President will act unreasonably and continue the Proclamation of Emergency even after the Emergency has ceased to exist. Seeing that the maximum period of detention has been fixed by s. 13 and that the discretion to fix the period of detention in a particular case has to be exercised after taking 834 into account a number of imponderable circumstances three is no substance in the argument that the power of Government to determine the period of detention is discretionary or arbitrary. [844 DE; F] Suna Ullah v. State of J. & K. A.I.R. 1972 S.C. 2431, referred to Per Alagiriswami, J : (a) An analysis of the provisions of cls. 4 and 7 of Art. 22 clearly shows that a maximum period of detention should be laid down by Parliament whether it is a case of detention after obtaining the opinion of an Advisory Board or without obtaining the opinion of an Advisory Board. it is clear from the provisions of cls. (4) and (7) that a law providing for preventive detention can authorise the detention of a person for a longer period than three months only if an Advisory Board has reported that there is sufficient cause for such detention, that even with the advice of an Advisory Board the detention cannot exceed the maximum period prescribed by law made by Parliament under sub-cl. (b) of cl. (7) and that if a person is detained in accordance with the provisions of any law made by Parliament under sub-cls. (a) and (b) of cl. (7) the detention can be for a period longer than three months.

Therefore, the parliamentary statute can provide for preventive detention without obtaining the opinion of an Advisory Board by laying down the circumstances under which, the class or classes of cases in which it can be done. In that case the maximum period for which a person can be detained should also be specified by the parliamentary law, that is, a person cannot be detained for a period exceeding three months without obtaining the opinion of an Advisory Board unless the concerned provision of law also provides for the maximum period for which such a person is to be detained. [851 E; 849FG] (b) The word "may" 'in Art. 22(7) amounts to "shall". The power to dispense with the opinion of an Advisory Board is given only to Parliament. When it makes a law under cls.

(7) (a) and (b) of Art. 22 that also would bind the State Legislatures in so far as they enact any legislation with regard to preventive detention. Though the State Legislatures have the power with regard to preventive detention, they do not have the power to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board. That power is completely that of Parliament and any State legislation will also be subject to the maximum period prescribed by Parliament under a legislation made under Art.

22(7) (a) and (b). [849 H; 850 AB] A. K. Gopalan v. The State of Madras, [1950] S.C.R. 88, S. Krishnan v. The State of Madras. [1951] S.C.R. 621, and Stateof West Bengal v. Ashok Dey, [1972] 1 S.C.C. 199.

distinguished.

(2) (a) The power to prescribe a maximum period given to Parliament (referred to in this proviso) is to prevent the State Legislatures making laws with regard to preventive detention without any maximum limit. The Constitution makers apparently did not want the State Legislatures to have an unfettered power with regard to preventive detention even in the field allotted to them under Entry 3 of List III of Seventh Schedule. [850 D-E] (b) An harmonious construction of the whole of Arts. 22(4) and (7) would thus necessitate that Parliament should provide a maximum period of detention not merely in respect of laws relating to preventive detention made by State Legislatures but also its own laws regarding preventive detention. If the proviso to sub-cl. (a) contemplates Parliament making a law providing for the maximum period of detention which cannot be exceeded by any State law regarding preventive detention the reasonable construction would be to hold that it is obligatory on Parliament to legislate under sub-cl. (b) fettering the hands in the matter of legislating with regard to the maximum period of detention. If the Parliament can fix the maximum period it can also alter it. If legislation with regard to the provisions of a maximum period is merely optional there was no need for the proviso at all. The concept of a maximum period of detention runs through the whole of Art. 22(4) and (7). This is because while Parliament and State Legislatures make laws it is the executive that makes orders of detention and if no maximum period of detention is specified by law it would be open to the executive to keep persons in detention indefinitely. [850 H; 851 A-C] 835 Per Bhagwati, J : (1) (a) Parliament is under no obligation to make a law under sub-cl. (a) of cl. (7). It is only if the requirement of obtaining the opinion of the Advisory Board is intended to be dispensed with that the Parliament must make a law under sub-cl. (a) of cl. (7). If the Parliament does not make such a law, cl. (4) (b) will not come into operation and detention for a period longer than three months whether under Parliamentary law or under State law, would be impermissible without obtaining the opinion of the Advisory Board. The language of cl. (4) (b) posits clearly and in no uncertain terms that there must be law both under sub-cls. (a) and (b) of cl. (7) in order that cl.(4) (b) may operate. If there is a law only under sub-cl.

(a) of cl. (7) and no law under sub-cl. (b) of cl. (7), a person cannot be detained longer than three months without obtaining the opinion of the Advisory Board as contemplated under cl. (4) (b). The making of a law by the Parliament under sub-cl. (a) of cl. (7) is, therefore, obligatory if the detention is to be for a longer period than three months without the intercession of the Advisory Board. [824 E-H] (b) It is clear on a combined reading of the proviso and the main provision in cl. (4) (a) that the proviso is an integral part of the main provision. It is intended to cut down the large amplitude of the power of detention conferred under the main provision. The scope and boundary of the power of detention under cl. (4) (a) can, therefore, be defined only by reading the proviso and the main provision as one single enactment. If the proviso does not operate the main provision also would not, for the main provision is intended to operate only with the limitation imposed by the proviso. The proviso is not used in its traditional orthodox sense. It is intended to enact a substantive provision laying down as outside limit to the period of detention. If there is no outside limit by reason of Parliament not having prescribed the maximum period under cl. (7) (b), the provision enacted in cl. (4) (a) cannot operate and in that event detention cannot be continued beyond three months, even though the opinion of the Advisory Board may be obtained. The proviso clearly posits the existence of a law made by Parliament under cl. (7) (b) and makes it an essential element in the operation of cl. (4) (a). [859 B-E] A. K. Gopalan v. State of Madras, [1950] S.C.R. 88, S.Krishnan v. The State of Madras, [1951] S.C.R. 621 and State of West Bengal v. Ashok Dey, [1972] 1 S.C.C., 199, distinguished.

(c) Parliament is free to prescribe or not to prescribe the maximum period under cl. (7) (b). But if no maximum period is prescribed neither Parliament nor the State Legislature can authorise detention for a long period than three months either under sub-cl. (a) or sub-cl. (b) of cl. (4). If the Parliament or the State Legislature wishes to authorise detention for a period longer than three months it must conform to the provisions of either sub-cl. (a) or (b) of cl. (4) and that requires that the maximum period must be prescribed by Parliament by law made under cl. (7) (b). [860 H] (2) The highest or the greatest extent or stretch of time may be determined by means of a fixed date or In terms of years, months or days or by reference to the occurrence of an event. But whatever be the mode of determination the maximum period must be a definite period. What is necessary is that the point of time at which the event would happen must be definite. [863 E] In the instant case since it cannot be predicated with any definiteness as to when the emergency would come to an end the period prescribed by s. 13 of the Act cannot be said to be the "maximum period" within the meaning of cl. (7) (b).

Parliament has not prescribed the maximum period of detention as contemplated under cl. (7) (b) and so no person can be detained under the provisions of the Act for a period longer than three months. [866 C]

ORIGINAL JURISDICTION: Writ Petition Nos. 41, 106 etc. etc.

of 1973.

Under Art. 32 of the Constitution for issue of a writ in the nature of habeas corpus.

R. K. Maheshwari, for the petitioner (in W.P. 41).

836 A. K. Gupta, for the petitioner (in W.P. Nos. 106 & 113).

M. S. Gupta, for the petitioner (in W.P. Nos. 441 & 214).

T. S. Arora, for the petitioner (in W.P. 621).

Niren De, Attorney General of India and D. N. Mukherjee, for the respondent (in W.P. 106).

Dilip Sinha, for the respondents (in W.P. Nos. 113, & 441).

M. M. Kshatriya, for the respondents (in W.P. 214).

P. K. Chatterjee and G. S. Chatterjee, for the respondent (in W.P. 41).

Nire De, Attorney General of India and R. N. Sachthey, for Attorney General of India.

Ramamurthy, for intervener No. 1 and for intervener No. 2.

The Judgment of Ray CJ, Mathew & Chandrachud JJ. was delivered by Mathew J. Alagiriswami, J. and Bhagwati, J.

gave partly dissenting Opinions.

MATHEW, J. In these writ petitions filed under article 32 of the Constitution, the petitioners question the legality of their detente and pray for issue of writs in the nature of habeas corpus. These petitions raise a common constitutional question, namely, whether Parliament is bound to prescribe the maximum period of detention under article 22(7)(b) of the Constitution in order that the proviso to article 22(4)(e) might operate, and, whether, by s. 13 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971), hereinafter referred to as the Act, after it was amended by s. 6(d) of the Defence of India Act, 1971, the Parliament has prescribed the "maximum period".

The orders passed by the Government of West Bengal under s.12 (1) of the Act in these cases provide that the Governor is-pleased to confirm the orders of detention and to continue the detention of the detenues till the expiration of 12 months from the dates of their detention of until the expiry of the Defence of India Act, 1971, whichever is later.

The material part of s. 13 of the Act as it originally stood ran as follows :

"The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under s. 12 shall be twelve months from the date of detention." After it was amended by s. 6(d) of the Defence of India Act, 1971, the material part of s. 13 of the Act reads "The maximum period for which any person may be detained it% pursuance of any detention order which has been confirmed under s. 12 shall be twelve months from the date 837 of detention or until the expiry of the Defence of India Act, 1971, whichever is later." The Defence of India Act, 1971, came into force on December 4, 1971. Section 1(3) of that Act provides that the Act shall come into force at once and shall remain in force during the period of operation of the Proclamation of Emergency and for a period of six months thereafter.

Section 2(g) of that Act defines "Proclamation of Emergency" as the proclamation issued under clause (1) of article 352 of the Constitution on the 3rd day of December, 1971. The President issued the Proclamation of Emergency under article 352 of the Constitution on December 3, 1971.

Article 22(4)(a) of the Constitution says that no law providing for preventive detention shall authorise the detention of a person for a period longer then three months unless an Advisory Board has reported before the expiry of three months that there is in its opinion sufficient cause for such detention. The proviso to the article provides that nothing in sub-clause (a) shall authorize, the detention of any person "beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7)" of article 22. By reason of article 22 (4) (b), a person can be detained for a longer period than three months without the necessity of consulting an Advisory Board if "such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7)" of article 22. And, article 22(7) says "(7) Parliament may by law prescribe(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of subclause (a) of clause (4);

The learned Attorney General, who appeared for the respondent in these petitions, submitted that in s. 13 of the Act the parliament has prescribed "the maximum period" of detention. And in the alter838 native, he said that the Parliament was not. bound to prescribe the maximum period of detention for the proviso to article 22(4)(a) to operate.

in A. K. Gopalan v. The State of Madras(1) Kania, C. J. said that article 22(7) (b) is permissive, it being not obligatory on Parliament to prescribe the maximum period and that if this construction resulted in a Parliamentary law enabling the detention of a person for an indefinite period without trial, that unfortunate consequence is the result of the words of article 22(7) itself and that the Court could do nothing about it.

In Krishnan v. The State of Madras(2), s. 11 of the Preventive Detention (Amendment) Act, 1951, was impugned as violative of article 22 (4) (a) on the ground that S. 11 did not fix a maximum period of detention, but on the contrary, empowered the Government in express terms to order that the detenu was to continue in detention for such period as it thought fit. The Court, by a majority, held that s.11 was not invalid on the ground that it did not fix the maximum period of detention inasmuch as the Act was to be in force only for a period of one year and no detention under that Act could be continued after the expiry of the Act.

Mahajan, J. pointed out that the point was concluded by the decision in Gopalan's case(1) where Kania, C.J. had observed that it was not obligatory on Parliament to' prescribe any maximum period. On the other hand, Bose, J. who wrote a dissenting judgment, held that though it was not obligatory on Parliament to fix the maximum period of detention under article 22(7)(b), if it wanted to detain a person for a period longer than three months, it could only do so by providing in the Act the maximum period of detention.

In the State of West Bengal v. Ashok Dey and Others(3) the central issue was whether a State Legislature has power to pass a law providing for preventive detention of a person for a period longer than three months even after obtaining the opinion of an Advisory Board that there was sufficient cause for detention, unless the Parliament has prescribed the maximum period of detention under article 22 (7) (b).

The contention was that there was no such power. The Court negatived the contention and said that article 22(7) is couched in, a permissive way, that there is nothing mandatory about it and that the majority decision in Krishnan's case(2) following the observation of Kania, C.J.

in Gopalan's case(3) was binding on the, Court. The Court also said that under entry 3 of list III of the Seventh Schedule, both Parliament and State legislatures have concurrent power to make laws in respect of "preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subject to such detention", and that as the State legislatures have plenary power to makelaw providing for preventive, detention within the limitations imposed by the Constitution, the power must necessarily extend to all (1) [1950] S.C.R. 88, (2) [1951] S.C.R. 621 (3) [1972] 1 S.C.C. 199.

839 matters incidental to preventive detention as contemplated by this entry subject only to the condition that the law made by the State should not come into conflict with a law made by Parliament with respect to the same matter. The Court came to the conclusion that there was no limitation on the power of a State legislature to make a law providing for detention for a period beyond three months for the reason that Parliament has not made a law prescribing the maximum period of detention under article 22 (7) (b).

Great reliance was placed by the petitioners on the reasoning contained in the dissenting judgment of Bose, J.

in Krishnan's case (supra) for the proposition that the fixation by law of the maximum period of detention is obligatory upon Parliament in order that the proviso to article 22 (4) (a) may operate.

According to Bose, J., a law providing for detention of a person beyond a period of three months must satisfy either clause (4) (a) or clause (4) (b) of article 22. The learned judge was not, however, prepared to read the word 'may' in clause (7) of article 22 as meaning must' as that would change the usual meaning of the word. He was of the view that Parliament is free to prescribe or not to prescribe the maximum period of detention under article 22 (7) (b) and that neither Parliament nor State legislature can be compelled to pass a law authorising preventive detention beyond three months but, if, however, either wishes to do so, then it is bound to conform to the provisions of either sub-clause (a) or (b) of article 22(4) or both, and that, in the case, of sub-clause (a), the proviso is as much a part of the sub-clause as its main provision. The learned judge then said that if no maximum limit is prescribed under subclause (b) of article 22(7), the proviso to article 22 (4) (a) cannot operate, and, if it cannot operate, no legislative action can be taken under clause (4) (a), and resorted to reasoning from analogies to fortify his conclusion. He observed : "'If A is told by B that he may go to a bank and withdraw a sum of money not exceeding such limit as may be fixed by C, it is evident that until C fixes the limit no money can be withdrawn. Equally, if A is told that he may withdraw money not exceeding a limit which he himself may fix, there can, in my opinion, be no right of withdrawal until he fixes the limit". He concluded his judgment by saying that the majority judgment amounted to the Constitution telling all persons resident in the land that "though we authorise Parliament to prescribe a maximum limit of detention if it so chooses, we place no compulsion on it to do so and we authorise it to pass legislation which will empower any person or authority Parliament chooses to name, right down to, a police constable, to arrest you and detain you as long as he pleases, for the duration of your life if he wants, so that you may linger and rot in jail. till you die, as did men in the Bastille".

We think the analogies which the learned judge referred to are, In fact, misleading and his seasonings from them not convincing.

Under entry 3 of List III of the Seventh Schedule, both Parliament and State legislatures have plenary power to pass laws for preventive detention as respects the subjects mentioned therein. As ancillary to 840 that power, or, as an inseparable part of it. Parliament and State legislatures have power to fix the period of detention also. One cannot imagine a power to pass a law for detention unless that power carries with it the incidental power to provide for the period of such detention. Therefore, both Parliament and State legislatures have power under the entry to provide for detention of a person for a specified period. the purpose of article 22 (4) (a) is to put a curb on that power by providing that no law shall authorize the detention, of a person for a period exceeding three months unless an Advisory board has reported within the period of three months that there is sufficient cause for detention. And, what the proviso means is that even if the Advisory Board has reported before the expiration of three months that there is sufficient cause for detention, the period of detention beyond three months shall not exceed the maximum period that might be fixed by any law made by Parliament under article 22(7) (b). The proviso cannot mean that even if Parliament does not pass a law fixing the maximum period under article 22 (7) (b), the State legislatures, for example, cannot pass a law which provides for detention of a person beyond three months. The period of such detention,, viz., detention beyond the period of three months, would then be a matter within the plenary power of Parliament or State legislatures, as the case may be, as such a power is incidental to the power to pass a law with respect to the topics covered by entry 3 of List III.

It is therefore clear that, but for the proviso to clause (4) (a) of article 22, the Act, as it provides for the opinion of the Advisory Board, can authorize detention of a person for any period, by virtue of the plenary character of the legislative power conferred by the entry. Whether such a law is liable to be struck down on the ground that it imposes unreasonable restrictions upon the fundamental rights under article 19 is an altogether different question.

The proviso says in effect that if Parliament fixes the maximum period under article 22(7) (b), the power of Parliament and State legislatures to fix the period of detention in a law passed under the entry would be curtailed to that extent.

Seeing, therefore, that the power to pass a law providing for detention of a person after obtaining the opinion of the Advisory Board includes the power to fix any reasonable period beyond three months by virtue of the plenary character of the legislative power conferred by the entry, the proper analogy would be : A has authority from B to draw any amount from a bank but he is told that if C fixes a limit upon that authority then be can only draw the amount as fixed by C, in such a case. if C does not fix the amount the power of A to draw is plenary. Or, if A is told that he may withdraw money not exceeding a limit which he himself may fix. A has power to draw any amount, nay, the whole amount in the Bank, if only he fixes the limit at that amount. The condition-precedent, namely. the fixation of the amount by A in such a case, would be wholly illusory, for whatever be chooses to draw would be the limit of his authority. To put it differently, as Parliament and State legislatures have power under the entry to pass a law enabling the detention of a person for a period longer than three 841 months in case the law provides for the opinion of the Advisory Board, there could be no limit to that period, except in the context of its reasonableness, as the power to fix the period of detention is incidental to the plenary power to legislate on the topic of preventive detention.

The proviso merely enables Parliament to put a curb on that power by prescribing the maximum period of detention under article 22 (7) (b). The proviso does not, proprio vigore, compel the Parliament to fix the maximum period. Nor does article 22(7). On the other hand, it expressly says otherwise. Whence then arises the obligation of Parliament to fix the maximum period under article 22 (7) (b) ? We see no provision which either expressly or by necessary implication compels Parliament to do so. Personal liberty is a cherished freedom, more cherished perhaps than all other freedoms, and we are deeply concerned that no man may linger and rot in detention. As judges and citizens., personal liberty is as dear to us as to anyone else and we may respectfully venture to make the same assumption in regard to those judges who were parties to the decisions in Gopalan's case(1), Krishnan's case(2) and Ashok Dey's case(3). But the problem here is one of dispassionate interpretation of the article in question and we cannot import an obligation that Parliament "shall" by law prescribe the maximum period of detention. Such an obligation could only arise from an invisible, radiation proceeding from a vague and speculative concept of personal liberty. The language' of article 22(4(b) is in marked contrast with that of article 22 (4) (a) read with the proviso. Article 22(4) (b) makes it obligatory upon Parliament, if it wants to pass a law for detaining a person for a period of more than three months without making a provision in that law for obtaining the opinion of an Advisory Board within three months. to comply with sub clauses (a) and (b) of article 22(7). We, therefore, see no sufficient reason for departing from the view taken in the decisions of this Court referred to earlier as regards the power of Parliament under article 22(7) (b).

The question whether, when Parliament passes a law under article 22(7) (b) fixing the maximum period of detention in any class of cases, it is exercising an independent power of fixing the maximum period of detention derived from clause (7) of article 22 or a power traceable to the entries on the subject of preventive detention, does not arise for consideration here. If the exercise of the power under article 22(7) is independent of the power conferred by the entries relating to preventive detention, the question whether a law passed by virtue of any of the entries fixing a period of detention in excess of the maximum period fixed by a law passed under article 22 (7) (b) would, sub-silentio repeal the provision in regard to the maximum period in the law passed under article 22(7), and make that period "the maximum period" for the purpose of article, 22(7) (b) does not also strictly arise for consideration. But this much we think is certain, namely, that the prescription of a 'maximum period' by a law made under article 22(7) (b) has no particular sanctity so far as Parliament is concerned, as it could pass a law for detention the (1) [1950] S.C.R. 88. (2) [1951] S.C.R. 621.

(3) [1972] 1 S.C.C. 199.

842 next day providing for a higher 'maximum period' and justify that law as a law passed both under the relevant entry relating 'to preventive detention and under article 22 (7) (b). To put it differently, the, view that the prescription of the maximum period under article 22(7)(b) is a guarantee that the Parliament cannot pass a law providing for longer period of detention than the maximum period fixed under article 22(7)(b) has no solid foundation, as the law of detention fixing the longer period would sub silentio repeal the law under article 22(7)(b) fixing the 'maximum period'. As Parliament has power to repeal a law fixing the maximum period under article 22(7)(b), the longer period fixed under the later law of detention would become the maximum period.

Detention without trial is a serious matter. It is only natural that it should conjure up lurid pictures of men pining in Bastille. But malignant diseases call for drastic remedies. And it was this realization that made the Constitution-makers-all lovers of liberty-to reconcile themselves to the idea of detention without trial.

Even if it is granted that Parliament is bound to fix the maximum period of detention, as we said, such a fixation cannot be immutable. what then is the great guarantee of personal liberty in the fixation of the maximum period of detention by Parliament, if that fixation can fluctuate with the mood of Parliament ? The learned Attorney General contended in the alternative that if S. 13 as amended is regarded as fixing the maximum period of detention under article 22(7) (b), it does not suffer from any infirmity on the score that the period fixed is indefinite as contended by the petitioners.

The petitioners bad contended that the expression "the maximum period" occurring in article 22(7) (b) connotes a definite period reckoned in terms of years, months or days and that no period can be said to be a maximum period unless it is possible to predicate its beginning and end in terms of years, months or days. In other words, the argument was that since the determination of the period of detention, namely, the expiry of the Defence of India Act, 1971, is dependent upon the revocation of the Proclamation of Emergency, the period fixed in S. 13 is not "the maximum period" as visualized by article 22 (7) (b).

The meaning of the word 'maximum' is, "the highest attainable magnitude or quantity (of some thing), a superior limit" (Shorter Oxford Dictionary, p. 1221, (1953), 3rd ed.). The meaning of the word 'period' is " A course or extent of time; Time of duration" (Shorter Oxford Dictionary, p. 1474). Therefore, the words "maximum period" mean the highest or greatest course or extent or stretch of time. The highest or greatest course or extent or stretch of time may be measured in terms of years, months or days, as well as in terms of the occurrence of an event or the continuous of a state of affairs.

In Juggilal Kamlapat v. Collector, Bombay(1), the High Court of Bombay was concerned with the question whether a requisition (1) A.I.R. 1946 Bombay 280.

843 der which stated that the requisition of the immovable property in question was to continue during the period of "the, present war and x months thereafter" was vague and indefinite. Bhagwati, J. said "The period of the present war through indefinite in duration was definite in itself in so far as the petitioners were given in as clear terms as it could be an indication of the period for which their property was sought to be requisitioned by respondent 1 viz., the duration of the present war. The user of this term was as definite as the user of the expression "the life time of A" which is used when settling or bequeathing a remainder in favour of B. B could not be heard to say that the life time of A which was the period prescribed as the one which was to come to an end before the remainder would vest in possession in his favour was a term which was vague or indefinite. It was as clear and definite as it could be, having regard to the fact that the period of the life time of an individual is indeterminate, though that life is of necessity going to come to an end some time or other".

We do not think it necessary that Parliament should have fixed a period in terms of years, months or days in order that it might be "the maximum period" for the purpose of article 2Z(7) (b). Seeing that the object of the law of preventive detention is to prevent persons from acting in a manner prejudicial to the maintenance of internal security, or of public order, or of supplies and services essential to the community or other objects specified in entry 9 of List I of the Seventh Schedule, we see great force in the contention of the learned Attorney General that "the maximum period" in article 22(7) (b) can be fixed with reference to the duration of an emergency. In other words, as the object of preventive detention is to prevent persons from acting in a manner prejudicial to the maintenance of internal security, public order or supplies or services essential to the community or other objects specified in entry 9 of List I, the power to detain must be adequate in point of duration to achieve the object. And, how can the power be adequate in point of duration, if it is insufficient to cope with an emergency created by war or public disorder or shortage of supplies essential to the community, the duration of which might be incapable of being predicted in terms of years, months or days even by those gifted with great prophetic vision ? If 'the maximum period" can be fixed only in terms of years, months or days, certainly it would have been open to Parliament to fix a long period in S. 13 and justify it as "the maximum period". It would be straining the gnat and swallowing the camel if anybody is shocked by the fixation of the maximum period of detention with reference to the duration of an emergency but could stomach with complacency the fixation of maximum period, say, at fifteen or twenty years. Whether the fixation of a "maximum period" in terms of years or in terms of events is reasonable in a particular circumstance, is a totally different matter.

it was argued on behalf of one of the interveners on the basis of the decision of this Court in B. Shama Rao v. The Union Territory 844 of Pondicherry(1) that the Parliament has abdicated its power al. duty to fix maximum period to the executive as the determination the duration of the Proclamation of the Emergency is a matter with the discretion of the President and he is, therefore, the authority to determine the retirement age of the Defence of India Act.

We do not think that the Parliament, in fixing the duration of the maximum period of detention with reference to an event like the cessation of the period of emergency, has, in any way, abdicated its power or function to fix the maximum period or delegated it to the President. There can be no doubt that it is Parliament that has fixed the maximum period in S. 13 of the Act. The only question is whether, because the duration of the period is dependent upon the volition of the President, it ceases to be "the maximum period". We cannot presume that the President will act unreasonably and continue the Proclamation of Emergency even after the emergency has ceased to exist.

The petitioners argued that s. 13 of the Act is bad for the reason that it is violative of their fundamental right under article 19 of the Constitution. This challenge is not open to them as it is precluded by the Proclamation of Emergency.

Although it was argued that s. 13 of the Act is violative of article 14 of the Constitution for the reason that it has conferred unlimited discretion on the detaining authority to fix the period of detention, we do not think that there is any substance in that contention. The authority which passes the initial order of detention is not expected to fix the period of detention [see Krishnan's case(supra)], nay, it may be illegal if it were to do so. Nor is the Government bound, when confirming the order of detention, under s. 12(1) of the Act, to fix the period of detention [see Suna Ullah v. State of J N K(2). Even if a period is fixed in confirming the detention order under S. 12(1), the period can be revoked or modified (see s. 13). The maximum period of detention has been fixed by s. 13 and the discretion to fix the duration within the maximum has been given to the Government after considering all the relevant circumstances. Seeing that the maximum period of detention has been fixed by S. 13 and that the discretion to fix the period of detention in a particular case has to be exercised after taking into account a number of imponderable circumstances, we do not think that there is any substance in the argument that the power of Government to determine the period of detention is discriminatory or arbitrary.

In the result, we overrule the contention of the petitioners and direct the writ petitions to be listed for disposal.

ALAGIRISWAMI, J. I have read the judgment of our learned brother Mathew, J. and with respect I differ from him on the question whether it is obligatory on Parliament to fix the maximum period of detention. I shall analyse the relevant provisions later but I shall first deal with three decisions which have dealt with this question.

(1) [1967] 2 S.C.R. 650.

(2) A.I.R. 1972 S.C. 2431.

845 In A. K. Gopalan v. The State of Madras(1) the six learned Judges comprising the Bench delivered separate judgments.

Kania C. J. was the only Judge who dealt with this point in these words :

"It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of sub clause (7) itself and the Court cannot help in the matter." It would be noticed that there is no discussion at all here as to whether the learned Chief Justice came to the conclusion that the contention was correct or not or how it springs out of the words of sub clause (7) that it was not obligatory on Parliament to prescribe any maximum period.

In the next case of S. Krishnan v. The State of Madras(2) Patanjali Sastri, J. with whom Kania, C.J. agreed, did not deal with this question at all. Mahajan, J., with whom S. R. Das, J. agreed substantially on the grounds stated by Mahajan, J. did, of course, deal with this question in these words :

"The next point canvassed before us was that the Constitution does not envisage detention for an indefinite period and that it is obligatory on Parliament to provide a maximum period for detention of a person under a law of preventive detention. In my opinion, this argument again is not sound. Emphasis was laid on the proviso to article 22(4) (a) which enacts that nothing in the sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause(b)of clause (7)and it was urged that the, word "may" in article 22(7) must be read in the sense of "must" and as having a compulsory force inasmuch as the enactment authorizes Parliament to prescribe by law a maximum period for detention, for the advancement of justice and for public good, or for the benefit of persons subjected to preventive detention. Reference was made to Maxwell on "Interpretation of the Statutes" (9th End., page 246) and to the well-known case of Julius v. Bishop of Oxford(3) Lord Cairns in that case observed as follows :"Where a power is deposited with a public officer for the purpose of being used for the benefit of persons that power ought to be exercised." In my opinion, clause (7) of article 22, as already pointed out, in its true concept to a certain degree restricts the measure of the fundamental right contained in clause (4) (a) and in this context the rule referred to by Maxwell has no application whatever.

Moreover, the provision in the Constitution is merely an enabling one and it is well settled (1) [1950] S.C.R. 88. (2) [1951] S.C.R.

621.

(3) 5 App. cas. 214.

846 that in an enabling Act words of a permissive nature cannot be given a compulsory meaning.

(Vide Caries on Statute Law, p. 254). Be that as it may, the point is no longer open as it has been concluded by the majority decision in Gopalan's case. The learned Chief Justice at p. 119 of the report observed as follows :"Sub-clause (b) is permissive. It is not obligatory on the Parliament to prescribe any maximum period. It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of subclause (7) itself and the court cannot help in the matter." Nothing said by Mr. Nambiar is sufficient to persuade me to take a different view of the matter than was taken in Gopalan's case. It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the statute which was of a temporary nature and whose own tenure of life was limited to one, year. Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The detention of the petitioners therefore is bound to come to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained tinder this law." It would be noticed that while he did discuss this question he thought that the point was concluded by the decision in Gopalan's case.

As I have pointed out earlier that was not a majority decision but only a passing observation by Kania, C.J. Both these cases mainly proceed on the basis that the Act itself being a temporary Act to be in force for a year the question of maximum period did not arise for serious consideration. Bose, J.

however was of the view that it was obligatory on Parliament to fix the maximum period of detention.

In the latest case of State of West Bengal v.

Ashok Dey(1), which was a judgment by four learned Judges, Dua, J. speaking for the Court said :

"Now, the argument raised in the High Court and accepted by it and repeated before us by Shri S. N. Chatterji on behalf of the respondents is that clause (7) (b) of Article 22 makes it obligatory for the Parliament to prescribe by law the maximum period for which a person may be detained as also the procedure to be followed by the Advisory Board in holding the enquiry under clause (4) (a) of this Article. According to the submission, in the absence of such a law by Parliament no order of detention can authorise detention of any person for a period longer than three months and at the (1) [1972] (1) S.C.C. 199.

847 expiry of three months all persons detained under the Act must be released.

We are unable to accept this construction of clause (7) of Article 22. It is noteworthy that Shri Chatterji, learned counsel for the respondents, expressly conceded before us that Article 22(7) is only an enabling or a permissive provision and it does not impose a mandatory obligation on the Parliament to make a law prescribing the circumstances under which a person may be detained for more than three months as stated therein. But according to him sub-clause (b) and (c) of clause (7) do contain a mandate to the Parliament which is obligatory. In our view, clause (7) of this Article on its plain reading merely authorises or enables the Parliament to make a law prescribing (i) the circumstances under which a person may be detained for a period longer than three months, (ii) the maximum period for which a person may in any class or classes of cases be detained under any law providing for preventive detention, and (iii) the procedure to be followed by the Advisory Board in an enquiry under clause (4) (a) of this Article.

The respondents' contention that "may" in the opening part of this Article must be read as "shall" in respect of sub-clauses (b) and (c) though it retains its normal permissive character in so far as clause (a) is concerned, in the absence of special compelling reasons can be supported neither on principle nor by precedent of which we are aware. On the other hand this Court has in S. Krishnan v. State of Madras agreeing with the observations of Kania, C.J. in Gopalan v. State of Madras held sub-clause (b) of clause (7) to be permissive. This opinion is not only binding on us but we are also in respectful agreement with it." This decision does directly deal with the point but not by detailed analysis of the relevant provisions as done by Mathew, J. and Bhagwati, J. and as I have tried to do later on. The decision, however, war. mainly concerned with the power of the State Legislature to make a law with regard to preventive detention and the whole approach is coloured by this consideration rather than the question whether the prescription of the maximum is obligatory.

The power of Parliament to legislate with regard to preventive detention arises under Entry 9, List 1 of the Seventh Schedule as well as Entry 3, List 3 of the Seventh Schedule. The State Legislature has the power to legislate with regard to preventive detention under Entry 3 in List 3 of the Seventh Schedule. This, of course, is subject to the provisions of Article 254(2) of the Constitution. Article 22 is found in Part III of the Constitution regarding fundamental rights. According to Article 1 3 (2) the State shall not make any law which takes away or abridges the, rights conferred by that Part. Therefore, Article 22 is an article restricting the powers of Parliament and State Legislatures in regard to preventive detention in the manner laid down therein. Of the learned Judges who dealt with Gopalan's case. Kania, C.J., Patanjali Sastri and Dass JJ.

took the view that Article 22 does not 4-L748SuP. CI/74 848 form a complete code of constitutional safeguards relating to preventive detention. While Mahajan, J, thought that it contains a self contained code of constitutional safeguards relating to preventive detention, Das, J. thought that Article 22 lays down the minimum rules of procedure that even the Parliament cannot abrogate or overlook. Mukherjea, J. proceeded to state his conclusions on the assumption that Art. 22 is not a self-contained code relating to preventive detention. Fazl Ali, J. took the view that Art. 22 does not form an exhaustive code by its,-If relating to preventive detention. All this goes to show that all the learned Judges more or less took the view that Art. 22 obtained certain constitutional safeguards regarding the preventive detention.

Now let us took at Article 22 in so far as it is necessary for purpose of this discussion :

"Art. 22(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).

(7) Parliament may by law prescribe a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c)..................................

I shall now place the various parts of the above provisions separately so as to make matters clear :

1. No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless the Advisory Board, consisting of persons who are, or have been, or are qualified to be the 849 appointed as Judges of the High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.

This does not authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause

3. No law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless such person is detained in accordance with the provisions of any law made by Parliament prescribing (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a _period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (and) (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention.

The 1st proposition means that a law providing for preventive detention can authorise the detention of a person for a longer period than three months only if an Advisory Board has reported that there is sufficient cause for such detention.

Proposition (2) means that even with the advice of an Advisory Board the detention cannot exceed the maximum period prescribed by law made by Parliament under sub-clause (b) of clause (7). I shall deal with the question whether it is obligatory on Parliament to make such a law a little later.

Proposition (3) means that if a person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7) the detention can be for a period longer than three months. It should be noticed that the law contemplated under this proposition is one made under sub-clauses (a) and (b) of clause (7).

Therefore a Parliamentary statute can provide for preventive detention without obtaining the opinion of an Advisory Board by laying down the circumstances under which and class or classes of cases on which it can be done. In that case the maximum period for which a person can be detained should also be specified by the parliamentary law i.e. a person cannot be detained for a period exceeding three months without obtaining the opinion of an Advisory Board unless tile concerned provision of law also provides for the maximum period for which such a person is to be detained.

The Constitution makers have Contemplated that if the Advisory Board's opinion is to be dispensed with, the maximum period of detention should be laid down. it is obvious, therefore, that the word "may" in Art. 22(7) amounts to `shall". It is also obvious that the power to dispense with the opinion 850 of an Advisory Board is given only to Parliament. When it makes a law under clause (7) (a) & (b) of Art. 22 that also would bind the State Legislatures in so far as they enact any legislation with regard to preventive detention. This is not, of course, to say that State Legislatures have no power with regard to preventive detention. But they do not have the power to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than 3 months without obtaining the opinion of an Advisory Board. That power is completely that of Parliament and any State legislation will also be subject to the maximum period prescribed by Parliament under a legislation made under Art. 22(7) (a) and (b).

The only question that now remains to be considered is whether if an Advisory Board is provided for in a law providing for preventive detention under Article 22(4) a maximum period of detention should be prescribed or not. In considering this question one thing would be obvious : that if Parliament does prescribe a maximum period under proposition (2) i.e. the proviso to Art. 22(4) (a), that would apply to all laws relating to preventive detention whether made by Parliament or by a State Legislature.

Apparently the power to prescribe, a maximum period given to Parliament (referred to in this proviso) is to prevent the State Legislatures making laws with regard to preventive detention without any maximum limit. This is another limitation on the powers of the State Legislature to legislate with regard to preventive detention. The Constitution makers apparently did not want the State Legislatures to have an unfettered power with regard to preventive detention even in the field allotted to them under Entry 3 of List 3 of Seventh Schedule. This provision can be usefully compared with the provision of Art. 31(3) which provides for a legislation made under the provisions of clause, (2) of Art. 31 being reserved for consideration of the President and receiving his assent in order that it may have effect. This was intended to act as a fetter on the power of the State Legislatures to legislate under the provisions of Art. 31(2). The only difference between Art.

31(3) and the proviso to Art. 22(4) (a) is that in the one case the power is given to the President and in the other case the power is given to the Parliament. Now if under sub clauses (a) and (b) of clause (7), read together, Parliament has to prescribe the maximum period of detention, does the fact that the proviso to Art. 22(4) (a) mentions only sub-clause (b) of clause (7) but not also sub-clause (a), makes any difference ? If, as I have already pointed out, this proviso at least contemplates Parliament making a law providing for the maximum period of detention which cannot be exceeded by any State law regarding preventive detention the reasonable construction would be to hold that it is obligatory on Parliament to legislate under sub-clause (b) fettering the hands of the State Legislature in regard to the maximum period of detention. It is true that Parliament cannot fetter its own hands in the matters of legislating with regard to the maximum period of detention.

If the Parliament can fix the maximum period it can also alter it. But if the maximum period so fixed is unreasonably long Art. 19(1) would be attracted. An harmonious construction of the whole of Articles 22(4) and 22(7) would thus necessitate that Parliament should provide a maximum period of detention not merely in respect of laws relating to preventive detention 851 made by State Legislatures but also its own laws regarding preventive detention. If legislation with regard to the provision of a maximum period is merely optional there was no need for the proviso at all. The fact that only sub clause (b) of clause (7) is mentioned in the proviso to Article 22(4) (a) does not make any difference to the obligatory character of having a maximum period for preventive detention because, as we have already seen, fixing of maximum period of detention is obligatory under Article 22(7) (a) and (b). It can also be said that where Parliament has prescribed the maximum period of detention under sub-clauses (a) and (b) of clause (7) such a maximum would be automatically attracted to the proviso under Article 22(4) (a). Fur