In these v. M. N. APflanM

Staie qf Bomba7 v. Atma Ram Sridhar Vaidya. 170 SUPREME COURT REPORTS [1951] events were already conclusion constituting the ground already supplied. into consideration in arriving at the So long as the later communications do not make out a new ground, their contents are no infringement of the two procedural rights of the <letenue 1nentioned in Art. 22, cl. (5). They n1ay con sist of a narration of f:icts or particulars relating the grounds already supplieJ. But in doing so the timC" factor in respect of second duty, viz., to give the detained person the earlitc;t oppor~ tunity to make a representation, cannot be overlooked. is sufficiently If on reading the ground furnished it is capable of being intellWenrly understood and furnish materials to enable the detained person to make a representation against the order it cannot be said to be "vague". The question the vagueness or whether the statement to the detained person is such that he was not given the furnished earliest opportunity to make a repr;esentation is a matter within the jurisdiction of the court's inquiry and subject to the court's decision. indefinite nature of definite CruMINAL APPELLATE JURISDICTION: Case No. 22 of 1950. Appeal under Art. 132(1) of the. Constitution against a judgment and order of the Bombay High Court dated. 1st September, 1950, in Criminal Application No. 807 of 1950. The facts and arguments of counsel are set out in the judgment. M. C. Setalvad, Attarney-General, ( G. N. foshi, with him) f<;>r the appellant. A. S. R. Chari and Bava Shiv Charan Singh for the respondent.

1951. Jan. 25. The judgment of Kania C.J., Faz! Ali, Mukherjea and Chandrasekhara Aiyar JJ. was delivered by Kania C.J. Patanjali Sastri and Dass JT. delivered separate judgments. KANIA C. J.-This is an appeal from.a judgment of the High Court at Bombay, ordering the release of the respondent who was detained in custody under a detention order made under the Preventive Detention Act (IV of 1950). The respondent was first arrested the Bombay the 18th December, 1948, under EaniaC. ]. t95J $tale qf Bom6ay v. Atma Ram SritllitW V aitfyo. KanioC. J1 S.C.R. SUPREME COURT REPORTS 171 Public Security Measures Act, 1948 (Bombay Act IV of 1947), but was released on the 11th of November, 1949. He was arrested again on the 21st of April, 1950, under the Preventive Detention Act, 1950, and on the 29th of April, 1950, grounds for his detention in the following were supplied terms : "That you are engaged and are to be engaged in promoting acts of sabotage ori railway and railway property respon dent. filed a habeas corpus petition on the 31st of July, 1950, reciting his previous arrest and release, in paragraphs 6 and 7 he mentioned as follows:- in Greater Bombay." The to him. They were in which, after likely "(6) On his release the applicant left Bombay and stayed out of Bombay, that is, in Ratlam and in Delhi. (7) On the 20th April, 1950, he returned to Bombay and was immediately arrested as stated above." trade unionists who belonged He contended that the sole aim of the Government in ordering his detention was not the preservation of public order or the security of the State, but the ing-up of active the All-India Trade Union Congress. He contended that the ground is "delightfully vague and does not mention when, where or what kind of sabotage or how the applicant promoted it." He further urged that the ground gave no particulars and therefore was not a ground as required to be furnished under the Prevent ive Detention Act, 1950. He stated that the present appellant acted mala for a collateral purpose, fide, - outside the scope of the Act, and that the applicant's detention fide. When this petition was presented to the Court on the 9th of August, 1950, it directed the issue of a notice the Commissioner of Police. Pending the disposal of the Rule, on the 26th August, 1950, the Commissioner of Police sent a communication .to the respondent as follows: in any event was illegal and mala "In pursuance of section 7 of the Preventive Deten tion Act, 1950 (Act IV of 1950), and in continuation of my communication No. 227 dated the 29th April, 4-1 S. C. India/68 1951 Stoi.~ Bom6ay v. Abrut Ram Sridhar Yaidy•. KaaiaC.J. 172 SUPREME COURT REPORTS [1951] following 1950, further particulars arc hereby communicated to you in connection with the grounds on which a detention order has been made against you under sub-section (1) of section 3 of the said Act:- That the activities mentioned in the grounds furnish ed to . you were being carried on by you in Greater Bombay between January 1950 and the date of your detention; and to make a In all probability you will continue to do so. 2. If, in view of the particulars now supplied, you further order under which you are detained, you should address it to the Government of :SOmbay and forward it through the Superintendent of Arthur Road Prison, Bombay." representation against the petition of On the 30th of August, 1950, the Commissioner of Police filed an affidavit against respondent in which it was stated that the objection able activities were carried on by the applicant between the months of January, 1950, and the date of deten tion. It further stated that in or about the month of January, 1950, there was a move for a total strike on the railways in India in the month of March, 1950, and the applicant was taken prominent part to sec that the strike was brought about and was successful. As a means to make the strike successful and bring about total cessation of work on all railways, the applicant and his associates were advocating sabotage on rail ways and railway property in Greater Bombay. He further stated that reliable materials were put before him of the respondent being engaged in such activities by experienced police officers. He added that although in the month of March did not the railway strike materialise, the idea of bringing about such strike as to be entertained and soon as convenient continued the present respondent was actively engaged in bring ing about such- a strike in the near future. He then stated that the disclosure of further facts relating against public activities of the dctcnuc was In para. 6 there was a· specific denial that "interest. S.C.R. SUPREME COURT REPORTS 173 the respondent, after his release· in Novcrnber, 1949, and till 20th April, 1950, was out of Bombay. It was stated that he used to go out of Bombay at times but the city during the major part of the period he was in of Bombay. 1951 Slate ef B11111t•.1 v. Atma Ram Sridhar Y 11;,/ya. Xallill C.]. it was When the matter came up before a Bench of the High Court the respondent's petition was granted. In the Court, Chagla C. J. observed: the judgment of "It is clear by reason of the view we have taken in several cases under section 491 · of the Criminal Pro cedure Code, that this is not a ground which would enable the detenue to make a representation to which he is entitled both under the Act and under the Con stitution." After noticing the affidavit of the Com further observed : "We missioner of Police, appreciate the fact that, after our decision was given, to place all the materials before Government decided us so that we should be satisfied that what influenced the detaining authority in making the order was not any ulterior motive but that ample materials were at the disposal of the detaining authority which would justify the applicant's detention. We have looked at the parti this affidavit and we have also looked at ·If these culars furnished to us by Mr. Chudasama. particulars had been furnished at the time when grounds were furnished on the 29th of April, 1950, very likely we would have come to the conclusion that the grounds were such as would have led the detenue to know exactly what he was charged with and to make a proper representation." The judgment is however based on the Chief Justice : "A new and important question arises for our consideration; and that is whether it is permis sible to the detaining authority to justify the detention by amplifying and improving the grounds originally furnished ........ The only grounds which we have to consider and which were furnished in the purported compliance of article 22(5) were the grounds furnished to the detenue on the 29th of April, 1950; and if these to enable the detenue to grounds were not such as there was a make a proper following observation of representation, J 1951 Sttdt ef Bomhay v. Atma Ram Srfr!krzr Jl nU!ya. Kania C. J. 174 SUPREME COURT REPORTS [1951] improving violation of the fundamental right and a contraven tion of the statutory provisions. That violation and that contravention cannot be set right by the detaining the grounds authority by amplifying or already given. As we said before, the point of time at which we have to decide whether there was a com pliance or not with the provisions of article 22(5) the 29th of April, 1950, when the grounds were furnished, and not when further and better particulars were given on the 26th of August 1950." The learned Attorney-General, the appellant, has strenuously objected to this line of approach. appearing it right As the question of vagueness of grounds for the order of detention and the question whether supple mentary grounds could be furnished after the grounds were first given to the detenue have arisen in various High Courts,' we the general principles should be properly appreciated. The Con legislative powers to the stitution of India has given States and to pass laws the Central Government permitting preventive detention. In order that a legis lation permitting preventive detention may not be contended to be an inJlringement of the Fundamental Rights provided in Part III of the Constitution, article 22 legislation empowering preventive detention. Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention and as and when the detention, even if valid ab initio, ceases to be "in accordance with procedure established by law" and infringes the fundamental right of the detenue guaranteed under articles 21 and 22(5) of the Constitution. In that way the subject of preventive detention has been brought present case we are concerned only with clauses (5) and ( 6) of article 22 which run as follows :- the chapter on Fundamental Rights. requirements are not observed the permissible lays down limits of In

22. "(5) When any person is detained in pursuance of an order made under any law providing for preven tive detention, the authority making the order shall, S.C.R. SUPREME COURT REPORTS 175 as soon as may be, communicate ground on which the order has lx;en made an~ shall afford him the earliest opporturuty of making a representation against the order. to such person ( 6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose." 1951 State qf Bombay v. AtmaRawa Sridhar Yail/ya. Kania C.J. the detained person is aimed at preventing It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by inquiry or trial. By its very nature, preventive deten the commission of an offence or preventing achieving a certain end. The authority making order therefore cannot always be in possession of full detailed information when it passes the order and the in its possession may fall far short of information legal proof of any specific offence, although it may be impending indicative of a strong probability of commission of a prejudicial act. Section 3 of Preventive Detention Act therefore requires that Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner pre judicial to ( 1) the defence of India, the relations of India with foreign powers, or the 1 security of India, or (2) the security of the state or the maintenance of public order, or (3) the maintenance of supplies of and services essential to the community .......... it is neces- sary so to do, make an order directing that such person be detained. According to the wording of section 3 therefore before the Government can pass an order of preventive detention it must be satisfied with respect · to the individual person that his activities arc directed against one or other of the three objects mentioned in the section, and that the detaining authority was to prevent him from satisfied that it . was necessary 1951 St"1e qf BDmbay "· Atmallam Sridhar Vaidya. KaniaC.J. 176 SUPREME COURT REPORTS [1951] to give intended that while the objects it is the satisfaction list. The satisfaction of is not humanly possible acting in such a manner. The wording of the section thus clearly shows that Central Government or the State Government on the point which alo'ne is necessary to be established. It is significant to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned. such a~ exhaustive the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satis faction required by the section. One person may think one way, another the other way. grounds on which it is stated that the Central Govern ment or the State Government was satisfied are such as a rational human being can consider connected in to be some manner with the question of satis prevented from being attained, the ground of mala fides cannot be faction except on in a court. Whether in a particular case challenged the objects which were If, therefore, in the place of the Central Government or the grounds are sufficient or not, according opinion of any person or body other than the Central Government or the State Government, is ruled out by It is not for the court to the wording of the section. if it would to determine State Government and have come the same conclusion as the Central or the State Government. As has been generally obsen·ed. Government and that cannot be substituted by an objective test in a court of law. Such detention orden are passed on information and materials which may not be strictly admissible Evidence Act in a court, but which the law, taking to be considered sufficient administration, has allowed for the subjective decision of the Government. the subjective decision of is a matter for evidence under consideration the needs exigencies An order having been so permitted to ~e made, the next step to be considered is, has the detamed person 195{ State of Bomba.1 v. Att114 Ra• Sridhar Vaidya. KaniaC. J. S.C.R. SUPREME COURT REPORTS 17'1 limitations prescribed In article 22(5) it is first considered is considered an elementary right any say in the matter? In the chapter on Funda mental Rights, the Constitution of India, having given every citizen a right of freedom of movement, speech, in the etc., with their relative different articles in Part III, has considered the posi tion of a person detained under an order made under a Preventive Detention A1=t. Three things are express ly considered. the man so detained has a right to be given as soon as may be the grounds on which the order has been made. He may otherwise remain in custody without having the least idea as to why his liberty has been taken away. This in a free democratic State, Having received the grounds for the order of detention, the next point which is con sidered is, 'but that is not enough; what is the good of the man merely knowing grounds for his detention if he cannot take steps to redress a wrong which I1e thinks has been committed either grounds or in making the order." The clause therefore further provides that the detained person should have the earliest opportunity of making a representation to be against the order. The the order of detention because the grounds against are only steps for the satisfaction of the Government on which satisfaction the order of detention has been made. The third thing provided is in clause (6). It appears to have been thought that in conveying information to the detained person there may be facts which cannot be disclosed in the public interest. The authorities are therefore left with a discretion in that connection under clause (6). The grounds which form the basis of satisfaction when formulated are bound to · contain certain facts, but mostly they are themselvea deductions of facts from facts. That is the general structure of article 22, clauses (5) and (6), of the Con stitution. representation has in belief The question arising for discussion is what should be stated in the grounds. It is argued that whatever the ground may be stated or omitted c.'\Illlot be vague; to be stated, that the Constitution envisages 195! Stat< ef Bom••.1 Atma Ram Sridhar Vaidya. EaniaC.j. 178 SUPRF.ME COURT REPORTS [1951] the authorities any right loose appreciation of the meaning of furnishing of the grounds once and therefore there . is no supplemental occasion furnishing particulars or grounds at a later stage;. and that article 22(5) does not give the detained person a right to ask for particulars, nor does it give to supple ment the grounds, once they have furnished the same. In our opinion much of the controversy is based on a somewhat words used in the discussion. We think that the posi tion will be clarified if it is appreciated in the first instance what are the rights given by article 22 (5). The first pan of article 22, clause (5), gives a right to the detained person to be furnished with "the grounds on which the order has been made" and that has to be done "as soon as may be." The second right given to such persons is of being afforded "the earliest opportu nity of making a representation against the order." It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detain ing authority was satisfied . that make the order. These grounds therefore must be ·in existence when the order is made. By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusions drawn from the available facts will show in which of the three categories of prejudical acts the suspected activity of the particular person is considered to fall. These con clusions are the "grounds" and they must be supplied. No part of such "grounds" can be held back nor can any more "grounds" be added thereto. What must be supplied are the "grounds on which the order has been made" and nothing less. The second right of the "earliest opponunity of making a being afforded representation against the order" only a physical opportunity by supplying paper pen only. In order that a representation can be made the person detained must first have knowledge of the grounds on which the authorities conveyed that they were satisfied about the re detention order. presentation has to be intelligible to meet the charges the necessity of making is therefore clear that if it was necessary is not confined It 1951 State of Bombay v. Atma Ram Sriihar Y aitlya, Ka11iaC.J. S.C.R. SUPREME COURT REPORTS 179 to dispel Ordinarily, the "grounds" contained in the grounds, the information conveyed to the detained person must be sufficient to attain that in the sense of object. conclusions drawn by the authorities will indicate the kind of prejudicial act the detenue is suspected of being engaged in and that will be sufficient to enable him to make a representation setting out his innocent activities the suspicion against him. Of course if the detenue is told about the details of facts besides the grounds he will certainly be in a better position to deal with the same. It is significant the clause does not say that the "grounds" as well as details of they are based must be furnished or furnished at one time. The law does the grounds are not prescribe within what time after representation could be made. The furnished time in each case appears deliberately unprovided for expressly, because circumstances vary in each case and make it impossible to fix a particular time for the exercise of each of these two rights. facts on which Indeed t<> make to make the is independent but It thus appears clear that although both these rights are separate and are to be exercised . at different times, they are still connected with each other. Without getting information sufficient to make a representation against the order of detention it is not possible for the representation. will be only illusory but not a real right at all. The it is right to receive the grounds thus intentionally bound up and connected with contingency of two rights are thus linked up, the further communication between the furnishing of grounds on which the order is made and the exercise of the right of representation granted by the second is not altogether excluded. One part of · that clause the wording of this clause and thing is clear from that is the grounds. the detenue there can be no addition The grounds being the heads, from which the Govern ment was satisfied order of detention, there can be no addition to those that after the grounds are once conveyed representation. Although that it was necessary to pass 180 SUPREME COURT REPORTS [ 1951 J 1951 State of Bombay v. Atma RIJln Sridhar Vait(ya. .Kania C. ]. grounds because such additional grounds will be either the grounds which were not elements to bring about if thev were the satisfaction of the Government or such grounds there has been a breach of the provision of the first part of article 22(5), as those grounds for the · order of detention were not conveyed detained person "as soon as may be." is delay or difficulty This however does not mean that all facts leading to the conclusion mentioned in the grounds must be conveyed to the detained person at the same time the grounds are conveyed to him. The facts on which the conclusion mentioned in the grounds are based must there may be be available the Government, but in collecting cases where the exact data or it may not be convenient to set out all the facts in the first communieation. If the second communication contains no further conclusion of fact from facts, but only furnishes all or some of the facts on which the· first mentioned conclusion was founded it is obvious that no fresh ground for which the order of detention was made detained person by the second communication which follows some time after the first communication. As that communication therefore regards the test appears to be whether what is conveyed in the second of facts or events, which facts or events were already taken into included consideration the later com munication contains facts conclusion a which is outside the ground first supplied, the same cannot be the order of detention and "new" In our opinion that is the more appropriate grounds. to be used. The expression expression "additional grounds" seems likely to lead to confusion of thought. the ground already supplied. leading the conclusion If those grounds arc into as supporting is being furnished communication is the contents of in arriving at a statement therefore looked The next point to be considered is the time factor. If a second communication becomes necessary, when should it be made? Clause 22 (5) lays down two time factors. The first should be supplied "as soon as may be" that the grounds This allows 1951 Stat• qf Bombay v. AtmaRiim Sridlun' Y aidya. EaniaC.J. S.C.R. SUPREME COURT REPORTS 1Rt distinct tending indicating the clause dealing with the authorities reasonable time to formulate the grounds on the materials in their possession. The time element is necessarily left indeterminate because acti~ities of individuals to bring about a certain result may be spread over a l<mg or a short period, or a larcrer or smaller area, or may be in connection with a f~w or numerous individuals. The time required t'he proper grounds of detention, on infor formulate mation received, is bound to vary in individual cases. There is no doubt that no express words are used to suggest a second communication from the authority to the regard the detained person. But having structure of two rights connected by the word "and'', and the use of the words "as soon as may be and "earliest opportunity" separately, factors, one in respect of the furnishing of grounds and the other in respect of the making of the representation, the contingency of a second communication after the grounds are furnished, is not excluded. However, the to be second communication should not be charged as not being within the measure "as soon as may ·be". Secondly, it must not create a new ground on which satisfaction of the Government could be In our opinion, if suggest~d to have been arrived at. these two conditions are fulfilled, che objection against a later communication of details or facts is not sufficient to cause an the provision made in article 22(5). The question has to be approached from another point of view also. As mentioned above, the object of furnishing grounds for the order of detention is to enable the detenue to make a represen tation, i.e., to give him an opportunity his objections against the order of detention. More over, "the earliest opportunity" has him to do that. While the grounds of detention are thus the main factors on which the subjective decision of the Government is based, other materials on which the conclusions in the grounds are founded could and should equally be conveyed to the detained person to enable him to make · out his objections against infringement of to be given to put liable t95t Stale qf Bombay v. Atma Ram Sridhar Vaid,a. KaniaC.J. 182 SUPREME COURT REPORTS [1951] order. To put it in other words, the dctainirig autho rity has made its decision and passed its order. The detained person then given an opportunity to urge his objections which in cases of preventive detention later stage. The grounds may comes always at a have been considered sufficient by the Government pass its judgment. But to enable the detained person to make his representation against the oraer, further details may be furnished to him. In our opinion, this appears to be the true measure of the procedural rights of the detained person under article 22(5). facts which to withhold to be disclosed in In our opinion that It was argued that under article 22(6) the authori .are permitted consider not desirable the public interest. It was argued that therefore all other facts must be disclosed. is not the necessary conclusion from the wording of article 22(6). It gives a right disclose such facts, but from that it does not follow that what to be withheld on that ground must be disclosed and if not disclosed, is a breach of a fundamental right. A wide latitude the matter of disclosure. the 1 detaining authority not is not stated or considered the authorities They are given a special privilege in respect of facts which are considered not desirable to be disclosed in public interest. As regards the rest, to give disclose facts so as earliest opportunity to make a representation against the order of detention. the detained person their duty is to make a On behalf of the respondent, it was argued that if insufficiently the grounds of detention are vague or clear there will result a failure to give him the earliest opportunity order of detention and that defect in its turn must affect the. satisfaction on which the order of detention was made. It was argued that just as a ground which is completely irrelevant, and in law is no ground at all, could not satisfy any rational person the order, a vague ground representation against the necessity for therefore, J951 State qf Bombay v. Atma Ram Sritihar Vail/ya. KaniaC.J. s.c.R. SUPREME COURT REPORTS 183 it, void. irrelevant the footing similarly make the detained person is unsound. Although there may be a cenain indefiniteness which is insufficient to enable the detenue to make a representation would the order of detention based on In our opinion, this the ground may be argument statement. Proceeding on some connection, i.e., the ground by itself is not so incapable of bringing convincingly about satisfaction in any rational person, the question whether such ground can give rise to the satisfaction required for making the order is outside the scope of inquiry of the court. On the other hand, question whether the vagueness or indefinite nature of the statements furnished such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the court's inquiry and subject to the coun's decision. The analogy sought to be drawn between a ground which can have no connection whatsoever with the order and a ground which on its face has connection with the order but is not definite faulty. The extreme position, on the other hand, that there is no connection between the ground to be furnished and the represen the detained person under tation anicle 22(5) furnishing the ground is kept in mind. The conferment representation necessarily the pan of carries with i.e., the grounds, detaining authority materials on which the detention order was made. In our opinion, it is therefore clear that while there is a connection between the obligation on the part of the detaining authority to furnish grounds and the right given to to. have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. As already pointed out, for test is whether it is sufficient authority. For the second, the test is, to satisfy the is equally unsound, when the object the detained person the obligation on to make a 'made by is clearly the first, statement) -to be furnish J951 ... StateW BombtfJ . l!m'lRam SrUlhor Y aid f a Jron;aC.J. 184 SUPREME COURT REPORTS [1951] whether it is sufficient to enable the detained person to make the representation at the earliest opportunity. the service of i.e., satisfaction of the grounds on which rights are connected by the earliest opportunity, for making The arugument advanced on behalf of the respondent mixes up the two rights given under article 22(5) and converts it into one indivisible right. We are unable to read article 22(5) in that way. As pointed out above, the word "and". Furthermore, the use of the words, "as soon as may be" with the obligation to furnish the grounds of the order of detention, and the fixing of another time limit, viz., rights distinct. The representation, makes second right, as it is a right of objection, has to depend first on conclusion, the Government about the necessity of making the order, is based. To that extent, and that extent alone, the two are connected. But when grounds which have a rational connection with the ends mentioned in section 3 of the Act are supplied, the first condition is satisfied. If the grounds are not sufficient to enable to make a the detenue the detention can rely on his second representation, right and if he likes may ask for particulars which the representation. On an will enable him infringement of either of these two rights the detained person has a right to approach. the court and complain that there has been an infringement of his fundamen tal right and even if the infringement of the second is established he part of the right under article 22(5) is bound to be released by two rights mentioned in article 22(5) as one is neither proper according to the language used, nor according to the purpose for which the rights are given. the court. To treat to make The contention that the grounds are vague requires some clarification. . What is meant by vague? Vague can be considered as the antonym of 'definite'. ground which is supplied is incapable of being under stood or defined with sufficient can be It is not possible to state affirmatively called vague. It must vary more on the question of what is vague. according to the circumstances of each case. certainty it It 1£ 1951 StOI• qf Bombay v. &mallaa Sridhar y aitlyc. Irotli• c. J. S.C.R. SUPREME COURT REPORTS 185 reading improper to· contend that a ground furnish materials to make a sufficientlv · definite the detained person the order of detention however if the only answer of. the detained necessarily vague person can be to deny it. That is a matter of detail which has to be examined in the light of the circum If on stances of each case. the ground furnished it is capable of being intelligently understood representation enable against it cannot be called vague. The only argument which could be urged is that the langu:ige med in specifying the ground is so general that it does not permit the detained person legitimately meet the charge against him because the only 2nswer which he can make is to say that he did not aCl as generally suggested. argument may support that having regard to the general language used in the ground he has not been given the earliest opportunity to make a representation against the order of detention. 1t can not be disputed that the representation mentioned in the second part of article 22(5) must be one which on being considered may give relief the detained person. In certain cases the contention capable "supplementary" the grounds are first given The argument that supplementary grounds cannot be given after detenue, similarly requires a closer examination. The adjective covering cases of adding new grounds to the original grounds, as also giving particulars of the facts which are already mentioned, or of giving facts in addition to the fact.s mentioned in the ground 'to lead to the conclusion of fact contained in the ground originally furnished. It is clear that if by supplementary grounds" is meant addz'tional grounds, i.e., conclusions of fact required to b1ing about the satisfaction of, the Government, the furni3hing of any such additional grounds at a stage . will amount the first to an mentioned right in article 22(5) as the grounds for the order of detention must be before the Government it is satisfied about the necessity for making before the order and all such grounds have to be furnished infringement of 1951 Siatt .J' Bombay v. AhnaRam Sridhar Vaidya. KaniaC.J. 186 SUPREME COURT REPORTS (1951] fact, the same conclusion of furnished as soon as may be. The other aspects, viz., the second communication (described supplemental grounds) being only particulars of facts mentioned or supplied, or being the grounds indicated additional incidents which taken along with the facts mentioned or indicated in the ground already conveyed (which is the ground first instance) stand on 2 different footing. These are not new grounds within the meaning of the first part of article 22(5). Thus, while the first mentioned type of "additional" grounds cannot be . given after the grounds are furnished in the first instance, the other types even if furnished after the grounds arc furnished as soon as may be, but provided are furnished so as not conflict with giving detained person to make a representation, will not be considered an the rights infringement of either of mentioned in article 22(5) of the Constitution. the earliest opportunity to come things ::ts noticed above, requires This detained examination shows that preventive detention is not by itself considered an infringement of any of the fundamental rights mentioned in Part III of the Constitution. This is, of course, subject to the limitations prescribed in clause (5) of article 22. That clallse, to be done for the person against whom the order is made. By reason of the fact that clause (5) forms part of Part III of the Constitution, its provisions have relating same force and sanctity as any other provision to fundamental rights. As the clause prescribes requirem~nts, the time factor in each case is necessarily left iluid. While there is the duty on the part of the detaining authority to furnish grounds . and the duty to give the detained person the earliest opportunity to make a representation, wlllch obligations, as shown above, are correlated; there exists no express provision contemplating a cetaining authority because in several cases a second communication may not be necessary ar all. The only tlllng which emerges fiom the discussion is that while the authorities must the person detained. Tills second· communication 1951 State of Bombay v. Atma Ram Sridhar Vaidya. . Kania C.J. S.C.R. SUPREME COURT REPORTS 187 discharge the duty in furnishing grounds for the order of detention "as soon as may be'.' and also provide "the earliest opportunity to the detained person make the representation", the number of communica tions from the detaining authority to the detenue may be one or more and they may be made at intervals, pro vided the two parts of the aforesaid duty are discharge ed in accordance with the wording of clause C5). So long as the later communications do not make out a · new ground, their contents are no infringement of the two procedural clause. They may consist of a narration of facts or particulars relating the grounds already supplied. But in doing so the time factor in respect of the second duty, viz., the earliest opportunity to make a representation, cannot be over looked. That appears to us to be the result of clause (5) of article 22. the detenue mentioned the detained person rights of to give the part of In our opinion, this In numerous cases that have been brought to our notice, we have found that there has been quite an the detaining unnecessary obscurity on authority in stating the grounds for the order. Instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of word~ in the communication conveying the grounds of detention. attitude is quite deplorable. We agree with the High Court of Bombay in its observation when it says : "I11 all the matters which have come up before us we have been distressed to find how vague and unsatisfactory the grounds are which the detaining authority furnished to the detenue; and we are compelled to say that in almost every case we have felt that the grounds could have been ampler and fuller without any detriment to public interest." While the Constitution gives privilege of not disclosing in public interest facts it considers undesirable to disclose, by the words used in article 22(5) there is a clear obligation to con vey to the detained person materials (and the disclosure of which .is not necessary to be withheld) which will enable It may be to make a representation. the Government )um 5-1 ~. C. India/68 • 1951 Stale qf Bomhay. v. Atma Ram Sridhar Vaidya. Kania C.J. 188 SUPREME COURT REPORTS [1951] to have it is but right these circumstances, the communication made the Preventive Detention Act may not m1ticed even contain machinery representation looked into by an independent authority or an advisory board. Under emphasize detained person to enable him to make the representa tion should, consistently with the privilege not to dis close facts which are not desirable to be disclosed public intere;t, be as full and adequate as the circum stances permit and should be made as soon as it can be done. Any deviation from this rule is a deviation Constitution. The detaining authorities has been that, applying the tests communications mentioned several detained persons have been found wanting and the orders of detention are pronounced to be invalid. intention underlying article 22(5) of this attitude of result of above, Having regard to the principles mentioned above, we have to consider whether the judgment of the High Court is correct. We have already pointed out that the summary rejection by the High Court of the later communication solely on the ground that all materials in all circumstances must be furnished to the detenue when the grounds are first communicated, is not sound. We have indicated conditions under which the later communication may or may not be considered as falling within the purview of article 22(5) of the Constitution. the circumstances and In dealing with the position when the grounds were first communicated, the High Court held as follows : "This is not a ground which would enable the detenue to make a representation to which he is entitled both under the Act and under the Constitution." In ·this case the later communication of the 26th August, 1950, was made after the respondent filed his petition and it appears to have been made to controvert his allega tion that he was never in Bombay between January and ApriL 1950, as alleged in his affidavit. After this communication it was takinsr these particulars had observed by Chagla C.J. been furnished on 29th April, 1950, very likely into consideration that if 1951 State of Bombay v. Atm Ram Sridhar Vaidya. Patanjali Sastri ]. S.C.R. SUPREME COURT REPORTS 189 court would have rejected the petition. The court set the respondent free only because of its view that after 29th April no further communication was permissible. In our opinion, this view is erroneous. We think that on the facts of the present case therefore the respond ent's petition should have been dismissed. We fore allow the appeal. PA1ANJALI SASTRI J.-While I concur in the order proposed by my Lord this appeal should be allowed, I regret I · find myself unable to agree with him on the true meaning and effect of article 22, clause (5), which is reproduced in section 7 of the Preventive Detention Act, 1950, (hereinafter referred to as - "the Act"). Put shortly, to be the question : Is it within the competence of the court decided is to a person to examine if they are detained under the Act, with a view to enable pim to make a sufficient representation to order, and if they are not, to direct his release? the grounds communicated the detaining authority its opinion against to see that article 21 It is now settled by the decision of the majority in is applicable to pre Gopalan's case(1) ventive detention except in so far as the provisions of article 22(4) to (7) either expressly Qr_ by necessary implication exclude its application, with the result that a person canno~ be deprived of this personal liberty, procedure established by law." Part of such procedure is provided by the Constitution itself in clauses (5) and (6) of article 22 which read as follows: for preventive purposes, "except according "(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representa tion against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause (1) [1950J S.C.R. 88. J95t Stat1 ef Bomba7. v . .A:ema Ram Sridhar Vaidya. Patanj12li Sastri .]. 190 SUPREME COURT REPORTS (1951] to disclose facts which such authority considers to be against the public interest to disclose. If this procedure is not complied with, detention under the Act may well be held to be unlawful, as it would then be deprivation of personal liberty which is not in accordance with the procedure established by law. The question accordingly arises as_ to what are the requirements of article 22(5) and whether have been complied with in the present case? is said, On behalf of the respondent it is urged that the clause provides two safeguards for the person ordered to be detained, namely, that (1) the grounds of his detention sho11ld be communicated to him as soon as may be, and (2) he should be given the earliest oppor the order. tunity of making a representation against the right of As there is to be no trial in such cases, making a representation affords, the only opportunity to the person detained to repell the accusa tion brought against him and establish his innocence. It is the communication of the grounds of detention that is expected to give him notice of what he is to meet by making a representation. The grounds must therefore, it is submitted, give sufficient indication of the nature and. extent of the information on which action has been taken against him and must contain sufficient particulars of the time and place of the acts charged, so as to enable him to make his representa tion effective as far as it is in his power to do so. If the grounds are vague and do not disclose the substance of the information on which the detention has been based, there would be no real compliance with the procedure prescribed by article 22 (5), and the detention must, it is claimed, be unlawful. In other words, the sufficiency of the grounds for the purpose of enabling the person representation against detained the order of detention is, in every case, a justiciable issue. to make an effective It must now be taken as settled by the decision of this Court in Gopalan's case('), which on this point was (!) [1950] S.C.R. SS. 1951 Sta11 qf Bombay. "' Atma Ram Sridhar Yaiiiya, Patanjali Sastri]. S.C.R. SUPREME COURT REPORTS 191 "The tribunal exist warranting investigate suspicion leaves the ·executive government unanimous, that section 3 of the Act is constitutional and valid notwithstanding to decide "satisfaction" of whether action under the Act is to be taken or not against any particular person or persons. The learned that action by Chief Justice pointed out (at p. 121) way of preventive detention must be based largely on suspicion, and quoted the remark of Lord Finlay in Rex v. Halliday(1), that a court is the least appro the question whether priate circumstances a person. Dealing with a similarly restraint on worded provision of the Central Provinces and Berar Public Safety Act, 1948, the Federal Court declared in another unanimous judgment, language clearly shows the responsibility for making a detention order rests upon the provincial executives as they alone are entrusted with the duty of maintaining public peace; and it would be a serious derogation from that responsibility if the court were to substitute the executive authority and, to that end, undertake an investigation the materials on which such . satisfac.tion was grounded ........ The court can, how- the Govern the grounds disclosed by ever, examine ment to see if they are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public safety and "satisfaction" in this connection must be grounded on material which is of rationally probative value" Machindar Shivaji Mahar v. The King(2). These decisions clearly establish, what indeed the nature of the measure, that preventive detention is a form of precautionary police action, to be employed on the sole responsibility of the executive government whose discretion is final, no recourse being permitted to a court of law by way of review or justification of such action except on allegations of mala fides · or irration:il conduct. the sufficiency of satisfaction of tranquility, judgment is plain (1) [1917] A.C. 260. 269. (2) [1949-50] F.C.R. 827, 831-32. J95J SJaJe ef Bombay. v. Attna 1"mt Sritfhar YaUi'Ja. Pat<mjali SastTi]. 192 SUPREME COURT REPORTS (1951] it noted, the grounds representation, communicated for, be the sufficiency of When the power to issue a detention order has thus been made to depend upon the existence of state of mind in the detaining authority, its "satis is, faction"', which is a purely subjective condition, so as to exclude a judicial enquiry into the sufficiency of the grounds to justify the detention, it seems to me to be wholly inconsistent with that scheme to hold that it is tl;ie open to the court to examine same grounds to enable the person detained to make a the person detained are the the order has been made." "grounds on which Indeed, the logical result of the argument advanced by the respondent's counsel would be invalidate sec tion 3 of the Act in so far as it purports to make the satisfaction of the government the sole condition of a lawful detention, for, if clause (5) of article 22 were to be construed as impliedly authorising a judicial review bf the grounds of detention if they contain a representation, sufficient particulars in section 3 then, the subjective condition prescribed would be inconsistent with that clause and therefore void. When this was pointed out to counsel he sub mitted that the decision in Gopalan' s case(') as to the constitutionality of section 3 required reconsideration light of his arguments based on article 22, clause then con (5). Although sidered from this paint of view, it came in for a good deal of discussion in connection with section 14 of the Act, and the present argument must, in my opinion, be rejected because it runs counter to that decision. the clause was not for making to see ,. Apart from this aspect of the matter, I am not much impressed with th~ merits of the argument. While in view of the structure and wording of gqnting, the grounds communicated clause . (5), pe.rson detained are to form the basis of his representa tion against the order, I am unable to agree with what the argument the. major premise of namely, that clause · (5) contemplates an inquiry where to be formally charged with the person detained to be · appears (!) [19~0] S:C.R. 88. 1951 Stllli qf Boabay v. Atma a,.. Sridllar J' llidya. Pata,,;ali Sas1ri ]. S.C.R. SUPREME C.OURT REPORTS 193 interest, as in the public specific acts. or omissions of a culpable nature and called upon to (lllswcr them. As pointed out by Lord Atkinson in Rex v. Halliday(1), preventive detention being a precautionary measure, "it must necessarily proceed ·in all cases to some extent on suspicion or anticipation as distinct from proof", and it must be capable of being employed by the executive govern ment in sudden emergencies on unverified information supplied to them by their police or intelligence officers. If the Government, acting honestly and in good faith make an order being "satisfied" on such information, however lacking in particulars, that a person should they have be detained been empowered by Parliament to do, then all article 22(5) requires of them is to communicate as soon as may be the grounds which led to the making of the order, to the person concerned, and to give him the earliest opportunity of making any representation which l1e may wish to make on the basis of what is communicated to him. If such communication is made and such opportunity is given the detaining authority will have complied with the procedure prescribed by the person under detention the Constitution, and cannot complain, that he has been deprived of his personal liberty otherwise than in accordance with the I can find nothing in proce~ure established by law. article 22, clause (5), to warrant grounds on which the order of detention has been made must be such that, when communicated to the person detained they are founded by a court of law to be sufficient to enable him to make what the co\irt considers to be an adequate to be produced before a Magistrate and to consult and be defended by a legal practitioner is expressly denied by the Constitution itsdf to a person under preventive (2) and (3)] and this detention [vide article 22(1), Court held in Gopalan's case( 2 that there was nothing in the Constitution to entitle him to a hearing even before this underlines the executive character of the function exercised by tht: detaining authority. All representation; The the view ) (1) [1917] A.C. 260, 2i5. (2) [1950] S.C.R. 88. 1951 StBl1 qf Bomba,Y v. Atma Ram Sridka Vaidya, Patanjali Sastri J. 194 SUPREME COURT REPORTS [1951] the representation which the authority which does not in any 'J:ay embark on In such circums a judicial or quasj-judicial inquiry. tances the person detained is allowed to make to the Government, which is con stituted the judge in its own cause, cannot be assumed to be similar in scope or purpose to a defence against a formulated charge in a court of law. The argument, representation the right of making a therefore, that should be made effective in the sense that such person should be enabled possible, and, for that purpose, the detaining authority to him the necessary particulars should communicate the order quashed if such parti on pain of having culars are not furnished, proceeds on a misconception of the true position. to defend himself successfully the detaining Perhaps the most cogent reason for rejecting argument is to be found in the language and provision of clause (6) of article 22. "Nothing in clause (5)", to say, neither the right to be informed of the that is right to make a "grounds" of detention nor "representation" shall "require" to disclose facts which the authority "considers" should not be disclosed in the public interest. In other import an words, clause (5) should not be obligat1011 authority to provide particulars which the is given an absolute discretion to furnish or withhold. I cannot understand how it can be claimed, in the face of clause ( 6), that it is incumbent on the executive government to communicate particulars which a court of law considers necessary to enable the the person detain ed to make a representation. ft cannot be compulsory to furnish what the authority is given an uncontrolled to give or to refuse. The combined power to decide effect of clauses (5) and ( 6) is, to my mind, to require the detaining authority, to communicate to the person affected only such particulars as not a court of law, considers sufficient to enable said person to make a representation. that authority It is worthy of note that in the well-known English case of Liversidge v. Anderson('), the existence of a (I) [1942] A. C. 206. 1951 Sidi efB_., v. AllllDR.. Vridllar Yaillya, P4talfiali SastiiJ. S.C.R. SUPREME COURT REPORTS 195 fact. Viscount Maugham observed regarded as a "very cogent similar privilege was the words "H the Secretary reason" for holding that of State has reasonable cause to believe" did not raise a justiciable issue as to the existence of such cause as an objective "It is beyond dispute that he can decline to disclose the information on which he has acted on the ground that to do so wowd be contrary to the public interest, and that this privilege of the Crown cannot be disputed. It is not adrem on the question of construction to say in reply to this argument that there are cases in which the Secretary of State could answer the attack on the validity of the order for detention without raising the point of privilege. say that there must be a in which the infor mation on which the Secretary of State is likely to act will be of a very confidential nature. That must have been plain in advising His Majesty in regard to the Order in Council, and it con stitutes, in my thinking that the words under discussion cannot be read as meaning that 'reasonable cause; is one which may be discussed in a court which has not the power of eliciting the facts which in the opinion of the Secretary of State amount 'reason ble cause'." large number of cases It is sufficient to existence of responsible opinion, a very cogent reason . for · There was considerable disc11ssion as to the meaning of the words "grounds" and "representation" used clause (5). These are words of very wide connotation and, in the view I have expressed, it is unnecessary to It may, however, be noted that clauses define them. (5) and (6) are not mutually exqlusive in the sense that, when clause (6) to be applicable. When, therefore, the detaining authority the material facts under clause (6) and withholds grounds communicates of detention, · which that case must be neces sarily vague, made, and such representation as the person may wish to make on the basis of that communication would it would still be communicating is invoked, clause (5) ceases the "grounds" on which person detained the order 1% SUPREME COURT REPORTS [1951] 1951 Slale ef Bomba.1 v. Atma Ram Sridhar Yai(,a. Patanjali SastriJ. still be a "representation'', within the meaning of no precise connotation clause (5). This shows terms "grounds" and "re can be attributed in certain fresentation" as used in clause (5), for the other cases at the person inadequate detained and on a question of construction they need not be different in other cases. the one can be vague and the point of view of least, a to make independent to furnish implication and the authority It was suggested in the course of the argument clause (5) dealt with two distinct and independent matters, namely, (1) the communication of the grounds the affording of an opportunity of detention, and (2) the detention, and to make a representation against that the grounds communicated need not have for. to the representation provided necessary relation it was said, The right representation, obligation imported by the person on the part of detained with sufficient particulars and details of accusation against him apart from and in addition to the obligation expressly imposed on the authority to communicate the grounds on which the ~ order has been made, for the reason that without such particulars no adequate or effective representation could be made against the order, and grounds on which the order was based had Deen held not to be open to judicial examination, there was no reason why the sufficiency of the further communica tion implied in the provision for representation should not be justiciable. The different time-limits fixed for the performance of the duties imposed by clause (5) on the detaining authority are said argument. The in my opinion, strained and artificial and cannot be accepted. The collocation in the same be informed of the grounds of detention and the right to make a representation against it indicate, to my mind, that the grounds communicated are to 'form the basis of the representation and, indeed, are intended mainly, if that purpose. To suggest that, apart not solely, for from those grounds, and right of making a representa- though the sufhciency of to support is, construction the right clause of suggested 1951 Stale ef Bo111ioy. v • ..41maRlllll Sridha'I Yaitlya. Patanjali SMrl]. S.C.R. SUPREME COURT REPORTS 197 implication, a further obli tion imports, by necessary to give such . details and particulars would gation render that right effective is, in my opinion, not construe the clause in its natural meaning but to stretch it by the process of implication, so as to square with one's preconceived notions of justice and £airplay. No support for this construction can be derived the provision of distinct time limits for the communi cation of the grounds and the affording of opportunity for representation, as different degrees of urgency required in the two cases. The grounds are to be communicated "as soon as may imports a be" which means as soon as possible and much higher degree of urgency than what is implied in affording the . "earliest opportunity" which, take it, means affording writing and communication facilities to the person under detention as soon as he is ready and desires to make the representation. that can be explained by I While clause (5) does not allow the authority, after making the order of detention and communicating the grounds of such order, to put forward fresh grounds in justification of that order, I can find nothing in that clause to preclude the authority furnishing particulars or details relating the grounds originally com municated, or the person under detention availing him self of such particulars and making a better or a further representation. Nor is there anything to pre the authority vent such person from asking for, or from providing, further and better particulars of those grounds where it is in a position to do so. But attempt in these and similar proceedings has always been not to secure the necessary particulars hut shift the arena of the court which, as the contest Lord Finlay remarked in the case already referred to, is the least appropriate tribunal for investigating what must largely be matters of suspicion and not proof and which, for that very reason, might afford relief hoped for . without being in possession of all the facts. Reference was made to the decisions of several High Courts dealing with the necessity of furnishing parti culars of the· grounds of detention. But those decisions 1951 Stat1 qf Bo.,6ay. v. Atma Ratio Srii/Jvu l'ali/ya, Patanjali SasviJ. 198 SUPREME COURT REPORTS [1951) turned on the provisions of the various Provincial Pub lic Safety Acts which were passed before the com mencement of the Constitution and which, in most cases specifically provided for the communication of parti culars. Those decisions are of no assistance to the res pondent as neither in article 22 nor in the Act is there any express provision that particulars of the grounds of detention should be given to the person detained. the petitioner Our attention was called to the decision of this court in lshwar Das v. The State(') as an instance where to be this court considered the grounds of detention vague and directed the release of that case from detention under the Act. As pointed out in the brief judgment in that case, no arguments were addressed on the point and the case was disposed of on the view prima facie supported by the decisions already referred to that, if the grounds were too gene ral and vague to enable the person under detention make a representation, he was entitled to be released. No value can therefore be attached to that decision as a precedent. • jealous to personal should be subject which In the course of the debate it was repeatedly urged that this court in upholding the liberty of the Constitution has guaranteed as a fundamental right and must not adopt rob the a construction of article 22(5) which would their efficacy. I safeguards provided therein of all sanctity which the am profoundly conscious of liberty and other Constitution attaches this court fundamental rights and of the duty of legislature or guard against inroads on them by the the executive. Constitution itself has authorised preventive detention and denied to the subject the right of trial before a court of law and of consulting or being defended by a legal practitioner of his choice, providing only certain procedural . safeguards, the court could do no more than construe the words used in that behalf in their natural sense consistently with the nature, purpose and scheme to ascertain what of the measure But when, as has been thus authorised, stated, (1) Not reported. 1951 State qf Boin6ay • v. Atma Ram Sridhar Vaid.Ya• Das]. S.C.R. SUPREME COURT REPORTS 199 that I have endeavoured powers are still left to the court in the matter. It to . construe clause (5) and, for the reasons indicated above, I have come to the conclusion that the province of the grounds the court to examine for the purpose of making a representation, a matter left entirely to the discretion of the executive autho rity. An argument in support of the liberty of the sub ject has always a powerful appeal but the court should, in my opinion, resist the temptation of extending its jurisdiction beyond its legitimate bounds. the sufficiency of is not DAs J.-This appeal from a decision of the Bombay High Court raises a very important question as to the sufficiency of the grounds of an order of detention under the Preventive Detention Act, 1950. The ques interpreta tion depends, for its answer, on a correct tion of clauses (5) and (6) of article 22 of our Con stitution which have been reproduced in section 7 of the Act. A similar question has also been raised in in this court by one hundred another appeal filed detenus from the decision of a Bench of the Calcutta High Court, being Case No. 24 of 1950 (Tarapada and Others v. The State of West Bengal)(1). As the view I have taken as to the ·true meaning and effect of the relevant provisions of the Constitution and of the Act itself has not commended the majority of my colleagues, it with a certain amount of I express diffidence arising out of the high regard I have for their opinions. the Act Under section 3 (1) (a) of the authority concerned can make an order of detention only if he is satisfied that, with a view to preventing a person from acting in a manner prejudicial to one or more of the matters referred to in sub-clauses (i), (ii) and (iii) of clause (a), ari order should be made. What materials will engender in the mind of the authority the requisite satisfaction under section 3 ( 1) of the Act will depend. on the training and the habitual mental approach of the person who is the authority t() temperament and ( l) Reported infra at p. 212. 1951 Stott ef Bomba7 v .• A.tma Ram Srldhar Y aitfya. Das]. 200 SUPREME COURT REPORTS [1951] fuller If the authority precise and in particulars is a person of the detention order. The authority concerned requisite may be a person who will not derive satisfaction except on very precise and full informa tion amounting almost to legal proof or he may be a person equally honest who will ' be so satisfied on meagre information which may appear to others to be a very vague or even nebulous. person on the first mentioned type, then the "grounds" on which he will make the order will necessarily be "grounds" on which an order may be made by the authority who the second mentioned type. The "grounds" on which the authority who is the first mentioned type makes an order of a person of detention create no difficulty for such grounds are quite precise and ample, and, when communicated to the detenu, will clearly enable him to appreciate the reasons for his detention and to make his representa tion. We are, however, concerned with the "grounds" on which an order of detention may be made by the second mentioned authority who is a person of type who may derive the conclusions which he may draw from the available information, which may not be precise or ample but. on which, having regard to his source of information, the authority may honestly feel safe to rely and act. This ·last mentioned type of "grounds" will, "vague the following discussion, be grounds". The question for our decision is whether an order of detention made in good faith on such "vague grounds" is valid when it is made and whether if valid when made, becomes very grounds, when· communicated to the detenue, arc found to be insufficient to enable him to make a re presentation. requiste satisfaction invalid because referred to as The first question urged by the learned counsel for the detenu is that an order of detention made upon grounds which are too vague to enable the detenu is bad ab make a representation against the order initio. The argument is thus formulated. Article 22 (5) requires two things, namely first, that the authority !95! Stale of Bomba;·. v. Ahlla Ram Sridhar Vaitf;·o. Das]. S.C.R. SUPREME COURT REPORTS 201 \ the argument, making the order of detention shall, as soon as may be, communicate to the_ detenu the grounds on which the order has been made -and, secondly, that the authority shall afford him the earliest opportunity to make a re presentation against the order. The two requirements are correlated. The object of the communication of the grounds, according to is to enable the the order of detenu to make a representation against detention and the combined effect of the two constitu tional requirements is that the grounds on which the order is made must be such as will, when communicat ed to the detenu, enable him to make a representation. li the grounds communicated are too vague being de void of particulars, then no representation can be made on the basis of them and if no representation can be made on the basis of these grounds, no order of deten tion could properly have been made on_ those grounds, for it is the grounds on which the order had been made that have to be communicated to the detenu so as to The argument enable him to make a representation. shortly put, is that the implied requirement the detenu grounds must be such as will enable make a the quality or indicates representation also attribute of the grounds on which the order of deten tion may be made. Whether the grounds satisfy requirements of article 22(5) is not left to the subjec tive opinion of the authority which makes the order of detention but an objective test is indicated, namely, the grounds - must be such as will enable detenu to make a representation which quite clearly makes the matter justiciable. If the court finds no representation may be made on account of the grounds, the court must also hold vagueness of that the order made on such vague grounds cannot be sustained. The next step in the argument is that the 1950 provisions of (Act IV of 1950), which was passed after the Consti light of tution came into effect must be read in the the satis article 22(5) as construed above. So read, in section 3 of faction of the authority referred the Act cannot be the the Preventive Detention Act, subjective satisfaction of !95! State ef B"""'•:1 v. Atma ROWJ Sridhar Y aid70, Das]. 202 SUPREME COURT REPORTS [1951] The subjective argument satisfaction must founded authority, for later on, on grounds which, when communicated representation to make a the detenu will enable which postulates an objective test. This involves that section 3 ( 1) (a) of the Act should be read as if the words "on grounds which, when communicated him, will enable hi11J. to make a representlation such as is mentioned in section 7 of this Ad" occurred after the words "if satisfied with respect to any person" and before the words "that with a view". If such interpolation of words be not permissible according to accepted canons of construction, then it must be held that in so far as section 3 of the Act makes an order of detention dependent on satisfaction of the authority, the section is unconstitutional, being repugnant to the provisions of article 22 (5) and the necessary intendment thereof. formulated is attractive but on closer scrutiny will be found to be unsound. Before the Constitution came into force there were laws for the maintenance of pub lic security in almost all the provinces and in the provisions of laws there were provisions similar to section 3 of the Preventive Detention Act, 1950. It was held in many cases that in the absence of bad faith, and provided the grounds on which the authority relation or founded its satisfaction had a relevancy to the object which the legislation in ques tion had in view, the satisfaction of the authority was purely subjective and could not be questioned in any court of law. The decision of the Federal Court Machindar Shiva# Mahar v. The King<') is one of such decisions. Vagueness of the grounds on which satis faction of the authority is founded cannot be treated as on the same footing as the irrelevancy of the grounds, unless the vagueness be such as may by itself, be If the grounds cogent evidence in proof of bad faitli. are relevant to the objects of the legislation and if there then mere vagueness of the is no proof of bad faith, grounds cannot vitiate the satisfaction founded The them. the court satisfaction being. subjective, reasonable (I) [1949-50] E.C.R. 827 at p; 831. 195! State ef Bombay v. Atma Ram Sridhar Vaidya; Das]. S.C.R. SUPREME COURT REPORTS 203 into force and responsibility M the Preventive Detention Act, . 1950, judging cannot arrogate to itself It is true the sufficiency or otherwise of the grounds. the Con that at the time those. decisions were given there were no stitution had not come fundamental rights, bu,t these well established princi ples were recognised and adopted by all members of this court in Gopalan's case(1) which came up for con sideration after the Constitution had come into force. In that case it was held unanimously that under sec tion 3 of satisfaction of the authority was purely subjective and could not, in the absence of proof of bad faith, be questioned at all and that section 3 was not uncon stitutional. It is true that the arguments now advance ed were not advanced in exactly the same form on that occasion but. that fact makes no difference, arguments have no force as they are founded on assumption that the grounds on which an order may be made must be such as will, when communicated, be sufficiently full and precise so as to enable I find no warrant detenu to make a representation. for such an assumption. court has held that section 3 of the Act which makes the satisfaction of the authority a purely subjective matter is not unconstitutional clearly destroys as hereinbefore cogency of the argument formulated stated. The decision in Gopalan's case(1) validity of section 3 of the Act makes it impossible to accept this argument. Indeed, the It is next urged that even if the initial order was satisfaction was a not invalid when made because purely · subjective matter for the authority alone the court cannot consider or pronounce sufficiency of the satisfaction the grounds on which was based, nevertheless, the continuance of the deten the same grounds when tion becomes unlawful communicated, be found to be vague and devoid of particulars so as the making of a representa tion by the detenu somewhat difficult. The argument is not is that although the vagueness of the grounds to render (1) [1950) S.C.R. 88. 6-1 S. C. India/68 195! Stntr. oj' Rombr:_v v. Atma ltu11! .~1idlw1 Vai4y..1. D ... j. 204 SUPREME COURT REPORTS [1951) the grqund the continuance of It was pointed out that that if vagueness renders appropriate Legislature. Having justiciable ~t the initial. stage when the order is made and so the order cannot be said to be invalid ab initio, the same Y'1gueness of nevertheless they are communi justiciable at the later stage when the making of a cated, so representation difficult the deten tion at once becomes illegal. Under article 21 no person can be deprived of his life or personal liberty except according to procedure established by law. As ex plained in Gopalan' s case(') procedure established by law means procedure enacted by the Legislature, i.e. State-made procedural law and not any rule of natural implication of justice. that article was that a person could be deprived of his life or personal liberty provided such deprivation in accordance with procedure was brought about enacted by the provided in article 21, the framers of our Constitution proceeded to lay down certain procedural requirements which, as a matter of constitutional necessity, must be adopted and included in any procedure that may be enactx:d by the Legislature and in accordance with which a person may be deprived .of his life or personal liberty. Those requirements are set forth in article 22 of the Constitution. A. perusal of the several clauses of that article will quirements of procedure which must be incorporated in any law for preventive detention relate ·to a stage after the order of detention is made under section 3 of the Preventive Detention Act, 1950. The order of detention being in accordance with procedure enacted by law which is not inconsistent with any of the provisions of Part III of the Constitution applica ble to that stage, the order of detention cannot be faith, either questioned unless there is proof of bad direct or indirect. We have, therefore, consider whether the detention validly brought about becomes subsequent non-compliance with unlawful by reason of the procedural requirements laid down in clause (5) of article 22, for if there is such non-compliance, the the constitutional show that (I)° [ 1950) S.C.R. 88. 1951 Stc.fe qf 1'oni6ay v •. Atma Ram Sridhar Vaidya. Das]. S.C.R. SUPREME COURT REPORTS 205 detenu from that moment must be held of his liberty otherwise . than proc~dure established by law and will, entitled to be released. to be deprived in accordance with therefore. be first, the making of communication of I am preparoo to concede that there is some correla tion between the two parts of article 22 (5), namely, the order the communication of the grounds on which has been made and the representation by the detained person. The Constitution insists on communication of the grounds on which the detention order . ha~ been made for some puqiose. That purpose obviously is to appraise the detenu of the reasons for the order of his detention. The grounds will necessarily enable to sec him, the object whether the grounds are at all relevant sought to be secured by the Act. If they are not, they were no grounds at all and no satisfaction could be founded on them. The very irrelevancy of the grounds will be a cogent proof of bad faith on the part of the authority so as to make the order itself invalid. In the next place, the disclosure of the grounds will tell the detenu in which chss his suspected activities have been placed and whether he is entitled the benefit of having his case the Advisory Board. Finally, the communication of the grounds on which the order has been made will tell him generally the reasons therefore, be helpful to the detained person in making his sentation which latter part of clause (5). The fact that there is correlation between the two parts of clause (5) does not, however, carry us any further. There is no warrant for assum ing that the grounds to be communicated to the detenu are to be a formal indictment or a formal pleading setting forth a charge or a case with meticulous parti the assumption cularity nor is there any warrant. for that the representation has to be in the nature of a defence or written statement specifically dealing with Indeed, the idea of a trial is the charge or the case. foreign to the law of preventive detention. The very fact that the provisions of clauses (1) and (2) of article is also provided for for his detention, scrutinised by and will, (951 SlaJ1 ef Bombay v • .Atma Ram Sridhar Vaidya. Das j. 206 SUPREME COURT REPORTS [1951] respect indicate represent the grounds. To say 22 do not apply to preventive detention clearly excludes the idea of a trial before a tribunal. As I have said, grounds will generally the conclusions drawn authority with by the appropriate suspected activities of any particular person and those grounds, when communicated, will enable the detenu to make a representation, for he can easily r~fer to and that all his set forth his real activities and activities are innocent and cannot possibly give the suspicion indicated in clause (5) itself indicates that the grounds must be such as well enable the detenu to make a representation is to read into clause (5) something which is not there. It is a re-statement of the first argument in a new form and is fallacious. In the first place clause (5) does not the authorities shall communicate in terms say such grounds as will enable the detenu to make a representation. In the second place, Gopalan' s case(') militates against this argument, for if the sufficiency of the grounds is not justiciable at the initial stage when the order is made, as held in that intention of case, it is wholly illogical the Constitution is to make the sufficiency of the same they are communicated grounds justiciable as soon as to the detenu. As already stated, in order made upon satisfaction founded on a vague grounds is quite valid, if the vagueness is not proof of bad faitll. Under clause the grounds on to communicate (5) the authority is which the order has been made. This will detenu know what operated on the mind of the autho rity when it made the order. If the grounds were vague it is the vague grounds that must be communicated, the order for it was upon thost vague grounds had been made. That the express provision of the first part of clause (5). This being the express requirement, the implication that the grounds com municated must be sufficient to enable the detenu to make a representation cannot be read the clause, for that will militate against the express requirement. If the order had hee11 made on vague grounds but the decision to say that iii.to (I) [1950] S.C.R. 88. !951 •• Stale qf Bombay Atma Rom Sridhar Vaidya. Dasj. S.C.R. SUPREME COURT REPORTS 207 . counsel were correct, then the vagueness of 1s The precise express required. authority facts will communicate If is contended for by well formulated grounds which will be sufficient for the detenu to make a representation, then the com munication will not be of grounds on which the order than what was made but of something more expressly provision must exclude such an inconsistent implied provision. Again, clause (6) of article 22 gives the authority to daim privilege against disclosure of facts in public interest. Non-disclosure of necessarily make the grounds, as communicated, extremely vague and devoid of particulars. construction of (5) which clause the detenu's the grounds resulting from. the non-disclosure of facts under clause (6) will entitle the detenu to be released, vagueness also will render the making of a representa tion impossible or difficult. That will mean claim of privilege given to the authority by clause (6) of article 22 is wholly meaningless and ineffective, and the privilege cannot will defeat its very purpose, for be claimed except at the peril of releasing the detenu. It must, Obviously intention. therefore, be held that the vagueness of grounds result ing from non-disclosure of facts under clause ( 6) will detention, which was the order of representation initially valid, on the ground that · no In can be made on the basis of such vague grounds. that case by claiming privilege under clause ( 6) justiciability "f authority can frustrate the sufficiency of grounds. should the vagueness of grounds otherwise brought about stand on a different footing ? Clause (5) cannot mean is claimed and mean one thing when the privilege quite the opposite claimed under clause is not is not justiciable. justiciable. The claim of privilege Why should it be assumed that sufficiency of the purpose of making a representation grounds for was intended to be justiciable ? I see no logical reason thing when no such privilege that cannot be Further, why the claim of initial order (6). The invalidate 1951 StaUqfBombay "" AW«llmn Sri4har Yaid;•a. Das]. 208 SUPREME COURT REPORTS [195IJ for making an assumption which will objective intended to be purely subjective. in a matter which introduce an the order. the first obligation the authority. Under If the grounds on which The argument is then re-stated in following further modified form. Clause (5) of article 22 imposes two obligations on the authority making an order of detention, namely (i) that the authority shall, as. soon as may be, communicate the grounds on which the order has been made, and (ii) that the authority shall afford the earliest opportunity to the detenu to make If the order was a representation against made as a result of satisfaction derived in good faith but upon grounds which may be vague, the order will be perfectly good and cannot be challenged in any if they court. Communication of such grounds, even imposed are vague, will satisfy latter part of clause (5) the authority is also under the obligation to afford to make a the earliest opportunity to the detenu the order representation. the second part of has been made were vague, clause (5), independently and without reference (5), first part of clause authority an obligation vagueness by supplying particulars so as detenu to make a representation. Supplying of parti culars, second part of clause (5), for without such particulars to make a the detenu is not afforded line of representation. argument. Under the clause (5) the grounds on which the order has been made have to be supplied 'as soon as may be.' The measure of indicated by 'as soon as may be' must the date of detention. Likewise, obviously the latter part of clause opportunity to make a representa detenu the earliest tion. From what terminus a quo is indicated to run ? by the phrase "earliest opportunity" If that is also to run from the date of the detention, then the two periods under the two parts of clause (5), imposes on defect to enable the opportunity to accept the argument concludes, the period to begin impliedly rectify requires affording first part of I am unable the words run from implicit (5) J951 State ef Bomba' •• Atma Ram Srir!har Vaid)la Das]. S.C.R. SUPREME COURT REPORTS t!1en therefore, run from representation, intended the question must nece54arily coincide and, of supplying further particulars after the grounds are supplied cannot arise. On the other hand, the natural meaning of the words of the latter part of clause (5) the phrase to my mind, is that the period connoted by the "earliest opportunity" . begins time the detenu expresses his desire or intention to representation. The making of a representa make a the right of the detenu. To make or not to make a representation is his choice. Therefore, it is only when he decides to make a representation and expresses his desire or ·intention to make a representa tion that the earliest opportunity to be afforded to him to make representa the desired or tion. Now, if the time is to run after the expression the part of the detenu of desire or intention on to make a the earliest oppor the detenu can only mean tunity to be afforded to carry · out affording him all physical his desire or intention, for the detenu has decided make his further parti representation without any latter culars. According to the language used in the part of clause (5), there is no express provision the grounds on which supplying particulars. Suppose the order was made and which were communicated the detenu under the first part were quite precise and sufficient to enable the detcnu to make a representa tion, then affording him make the representation can only mean giving him all physical facilities to do so, e.g., by supplying him with paper, pen· and ink and when the representation has been drown up by him, by forwarding the same In such a case there is no question with due despatch. of supplying further and better particulars. Suppose, again, that the grounds on which the ord<:r has ·been made and which have been communicated the: to be quite regarded by detenu are precise and sufficient for making a representation, is the authority to anticipate that the detenu may in that these grounds insufficient or that being moved behalf the Court may consider insufficient and the earliest opportunity the authority facilities 195! Statt qf Bombay v. Atma Ram Sridhar Vaidya. Das]. 210 SUPREME COURT REPORTS [1951] the court then, as soon as the detenu expresses his desire or inteI1tion to make a representation, is the authority to keep quiet and take the risk of releasing the detenu for the vaguenes~ of the grounds or is he to tell the detenu "just wait a little; I think the grounds which I have communicated to you are quite precise and sufficient ; lest you or the court find the grounds insufficient for making a representation, I shall supply you with further and better particulars so as to enable you to make the representation ?" The position thus stated is unreal on the face of it. In my opinion, on a plain reading of clause (5) there is no justification for assuming that a second communic;;nion of particulars is contemplated either under the first part or under the second part of clause (5). This does not, however, suppfy particulars mean that the authority may not either suo motu or on the application of the detenu. All that I say is imposes no con supply stitutional obligation on particulars so as grounds or to enable the detenu to make a representa further particulars does tion, and fundamental right. the vagueness of infraction of any that clause (5) constitute an non-supply authority remove render the grounds, even It is said that clause (5) of article 22 construed in the way suggested above, would that clause nugatory for it will then really guarantee no I respectfully differ from this view mental right at all. for the criticism does not appear to me to be wdl founded. Communication of vague, will none the less be helpful to the detenu in the several ways I have already mentioned and, there fore the right to have the grounds on which the order has been made communicated to him a valuable right which has been fundamental recognised as a representation right. Likewise, the right to make a the Con is a valuable right which is guaranteed by If stitution. These rights the provisions of clause (5) of article 22 of our Con stitution on a correct interpretation ·thereof are the liberty of to be inadequate for remain unaffected. the protection of J95J State qf Bomhy v • .dtma Ram Sri dhar Vaidya. Dai]. S.C.R. SUPREME COURT REPORTS 211 their misfortune. The: Constitution the detenus which the people have given unto themselves is the supreme law and must be .upheld and obeyed whether or not one lilaes its provisions, inhibitions afld neces implications. The · court can only draw attention of the Parliament to the lacuna or defect, if any, in the Constitution and in the Act so that the lacuna may be supplied or ·the defect reroedied in the constitutional way. . on they were based Our attention has been drawn to a number of cases where under various provincial laws and before the different High Courts have directed Constitution the .release of the detcnu on th,e basis of the vagueness Those decisions arc, however, dis of the grounds. tinguishable because legislation which required the communication not only of grounds but also of particulars. The . omission from our Con stitution of for communicating particulars in addition . to the grounds which were be found in those laws is significant, it may be this, however, those decisions deliberate. Apart from do not appt;ar to me to have any bearing on correct interpretation of our Constitution or of the It. lswar Das v. The State(1) Preventive Detention Act. the question was not raised or argued as it was made clear in the judgment itself. the provision In view of what I have stated above, I am of the opinion that as the grounds originally communicated to the detenu were relevant to the objects whi"h the Act had in view and as there is no proof of mala /ides the obligations authorities under article 22(5) which have been reproduced in section 7 the Preventive Detention Act have been complied with. Even according to the views express I would be ed by the majority of my subsequently prepared supplied · along with the grounds originally supplied fully enable the detenu representation. In my opinion there has been no contravention of the I would, therefore, fu~damental rights .of the detenu. to hold that . the particulars to make his colleagues {I) Not reported. J95J Stall of Bombay v. Atma Ram Sridhar Vaidya. 1951 Jan. 25. 212 SUPREME COURT REPORTS [1951] this appeal and reverse Bombay High Court. the . decision of Agent for the appellant : P. A. Mehta. Agent for the respondent: V. P. K. Nambiyar. Appeal allowed. TARAPADA DE AND OTHERS v. THE STATE OF WEST BENGAL [SHRI HARILAL KANIA C.J., SAIYID FAzL Au, PATANJALI SASTRI, MuKHERJEA, DAs and CHANDRASEKHARA A1YAR JJ.l Constitution of lndia, 1950, Art. 22 (5)-Preventive detention Duty to contmunicate grounds of detention as soon as n1ay be Duty to gii1e earliest opportunity to make t-cpresentation-Grounds furnished days-"Supplementary fttrnished after 4 months-Ugality of detentt'on-Vague grounds and irrele first and details vant grounds distinguished-Supply of grounds later-Legality-Serving printed orders on several persons-Bona fides of detention. same date on grounds 11 after 15 the same date ·detention orders under A large number of persons were detained under the Bengal Criminal Law An1endrnent Act, 1930~ The validity of this ~.\ct was being c.hallenged in the High Court. Meanwhile, the Prcven· tive Detention Act of 1950 was passed on 26th February, 1950, and on \Vere served on them. The grounds of detention were served on them on the 14th of l\farch, and on the 16th of July the Government served on them "'Supplementary grounds" in continuation of the the 14th of March. A sec~nd grounds already set of grounds were communicated to the appellants on 22nd or 23rd of July. They applied to the High Court of Calcutta for writs of habeas corpus contending that the orders of detention were invalid on various ground~. The High Court rejected these applications and they appealed to the Supreme Court. furnished on this J\-:t Held per KANIA C.J., FAzI. ALI, MuKHERJEA and CHANDRA· the particular circumstances of in view of the fact that a large nnn1ber _of the Preventive the passing of to the appellants "as soon as SEKHARA AIYAR ·JJ.-(i) that-in the case, cSpccial!y cases had Detention Act \Vt.re not communicated grounds may be" within the meaning of Art. 22 (5); to be dealt with on it cannot be said in February, 1950,