S. KRISHNAN & Ors. v. The State of MadraJ

Mr. Nambiyar, on behalf of the petitioners, urged that these provisions contravened article 22( 4) (a) of the Constitution and were, .void under article 13(2). Article 22(4) (a) provides: therefore, "No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the ex piration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing the detention of any person beyond period prescribed by any law made by authorise maximum Parliament under sub-clause (b) of clause (7).'' sub-clause It will be seen that two conditions have to be ful filled in order that a person can be detained for a longer period than three months; ( i) his case must be referred to an Advisory Board constituted manner specified and (ii) that Board must make a report before the expiration of three months that there is sufficient cause for such detention. Section 12 of the old Act having provided that there was to be no review falling within by an Advisory Board in cases S.C.R. SUPREME COURT REPORTS 625 section 3 (l)(a)(ii), the petitioners' detention in pursu ance of orders made under the latter section fell under article 22 ( 4) (b), and there was no question, therefore, of such detention contravening article 22 ( 4) (a). The scheme of the new Act, however, was to extend the benefit of a review by an Advisory Board to all cases to act con the detaining authorities the Board. The method formably to the adopted to delete this scheme was some of the provisions of the old Act and to substitute in their place new provisions. report of to give effect to to bind 1951 $.Krishnan and Othera v. The State of Madraa. Patanja/i Sa>tri J. (2) which The material provisions of the new Act are tions 9, 10, 11 and 12. Section 9 provides for a reference to an Advisory Board within six weeks from the date "The date specified in sub-section referred to in sub-section (1) shall be-(a) in every the commencement of the Preventive case where at Detention (Amendment) Act, 1951, the person is under detention in pursuance of a detention order made under sub-clause (i) or sub-clause (ii) of clause (a) of the date of commence sub-section (1) of section 3, ment of the said Act ; and (b) in every other case the date of detention under the order". By section 10 the Advisory Board is required to submit its report within ten weeks from the date specified in sub.section (2) of section 9. Section 11 ( 1) authorises the appropriate Government to continue the period of detention for such fit in case period as the Advisory Board reports that there are sufficient grounds for the deten tion, while sub-section (2) provides tliat the Govern ment shall revoke the detention order and release the person concerned other way. Sub-section (1) of section 12 declares for that every detention order the "avoidance of doubt" in force at the commencement of the new Act "shall continue in force and shall have effect as if. it· ~ad been made under this Act as amended" by the "'new Act, and in sub sub-section (2) provides that nothing contained section (3) of section 1 or in sub-section (1) of section 12 of the old Act shall affect the validity or duration of any such order. the Advisory Board reports it thinks 1951 S· Kri.shan and Other:1 v. The State of Madras Patan}ali Sa-stri J. 626 SUPREME COURT REPORTS [ 1951] the date of It will be seen that although the object of the new Act was to liberalise the provisions of the old Act in the manner indicated above, section 12 had the effect of enlarging .·he period of detention of the petitioners who were under detention at the commencement of the new Act by enacting the legal fiction that detention in such cases shall have effect as if it had been made under the new Act. On that basis, the new Act seeks to bring detention orders in force at its commencement and more than three months old into conformity with article 22( 4) (a) by prescribing a period of six weeks in section 9 for referring such cases to the Advisory Bo~.rd and ten weeks in section 10( l) for the submis sion by the Board of its report, the period in each case being calculated from the commencement of the new Act. But this fiction cannot obscure the fact that in the case of the petitioners more than three months had their arrest without any elapsed from Advisory Board making a report on their detention and it is, of course, not possible for the Advisory Board in such cases to submit its report now provided for before the expiration of that period, with the result (a). No doubt the detention up to the commencement of the new Act was lawful under section 12 of the old Act, as it was in accordance with sub-clause (b) of clause ( 4) of article 22, but that could not make the petitioners' continued detention any _the less a viola tion of article 22(4) (a) after the deletion of old sec tion 12. lawful detention under sub-clause (b) as being no detention at all for purposes of sub-clause (a). Detention is a hard physical fact, and the total period of detention of the petitioners having far exceeded three months with out an Advisory Board having reported within three months that there were sufficient grounds therefore, it could not lawfully be continued under article 22(4) (a). Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legal fictions. It is a fallacy to treat what was a contravened article 22(4) their detention It was said that if the petitioners had been released on 22nd February, 1951, and re-arresteC. 1nd detained S.C.R. SUPREME COURT REPORTS 6tl immediately thereafter under the new Act such deten tion would have been valid. But, for proceeding in that manner the enactment of section 9(2) (a) and section 12(1) would be unnecessary. Parliament has, however, adopted a different mode of proceeding by providing for force at the commencement of the new Act on the basis that they should have effect as if they had been made under the new Act. The resulting position must, therefore, be dealt witn only on that basis and not on any other hypothetical footing. the continuance of detention orders 1951 s. Krishnan and Others. v. The State of Madras. Patan}ali Sastri J, The Attorney-General, however, contended in the the constitutional validity of section alternative that 9 (2) (a) and section 12 (1) of the new Act could be sustained under article 22(4) (b) which has been held by a majority of the Judges in A. K. Gopalan v. The State of Madras (1) to be a distinct and independent provision authorisil).g preventive detention for a period longer than three months in · accordance with a law made by Parliament under sub-clauses (a) and (b) of clause (7) of article 22. The Attorney-General claimed that the aforesaid provisions were such a law, none the less because Parliament may have intended to make a law within article 22 (4) (a) by providing for a review by an Advisory Board in all cases or preventive deten tion. On a question of vires, immaterial, and I agree that a provision Legislature for an Advisory Board is not a hall-mark which stamps a preventive detention law as one necessarily falling within sub-clause (a) of clause (4), so as to make its constitutional validity determinable exclusively with reference to the requirements of that sub-clause. The law could still be upheld if it fulfilled the conditions laid down in sub-clause (b) of clause ( 4). Mr. Nambiyar, the new Act did not fulfil however, submitted it is not a law made under sub those conditions, for clauses (a) and (b) of clause (7). The word "and" should its ordinary conjunctive sense, and be understood the circumstances the new Act neither prescribes and classes (a) nor referred in sub-clause intention of co [t950J s.c.R. 88. 7-10 S.C. India/67 • 19SI s. KriJhnan and Others. v. The State of Madra&. Patan]a// Sastri J. 628 SUPREME COURT REPORTS (1951) in a disjunctive maxim um period of detention required to be prescribed under sub-clause (b) of clause (7). The contention is devoid of substance. The new Act can, in my opinion, be regmx:led as a law made substantially in accordance with sub-clauses (a) and (b) of clause (7), According to the majority view in Go pa/an' s case, sub-clause (a) of clause (7) being an enabling provision, the word "and" should be understood sense. The combined effect of sections 9(2) (a) and 12(1) is to provide, in a certain class of cases, namely, where deten tion orders were in force at the commencement of the new Act, that the persons concerned could be detained for a period longer than three months if an Advisory there are sufficient grounds for Board reports detention within ten weeks from the commencement of the new Act, that is to say, without obtaining opinion of an Advisory Board before the expiration of the three months from the commencement of the deten tion as provided in sub-clause (a) of clause (4). And, although the new Act does not in express terms pres cribe in a separate provision any maximum period as such for which any person may in any class or classes of cases be detained, it fixes, by extending the duration the 1st April, 1952, an over-all time of the old Act till limit beyond which preventive detention under Act cannot be continued. The general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as (Craies on Statutes, 4th Edition, p. 347). Preventive detention which would, but for the Act authorising it, be a continuing wrong, the expiry of cannot, the Act itself. The new Act thus in substance pres cribes a maximum period of detention under it by providing that it shall cease to have effect on a speci fied date. It seems to me, therefore, that section 9(2) (a) and section 12(1) of the new •Act substantially satisfy the requirements of sub-clause (b) of clause ( 4) of arti cle 22, and cannot be declared unconstitutional and void. therefore, be continued beyond the statute expires 1951 s. Krishan and Other&. v. The State of Madra&. Patanjali Sa&t&il. Mahajan J. S.C.R. SUPREME COURT REPORTS 629 The objection to the validity of section 11(1) can be disposed of in a few words. The argument is that the discretionary powc:r given to the appropriate Govern ment under that sub-section to , continue the detention ''for such period as it thinks fit" authorises preventive detention for an indefinite period, which is contrary to if as already the provisions of article 22(4). But, observed, the new Act is to be in force only up to 1st April, 1952, and no detention under the Act can continue thereafter, the discretionary power could be exercised only subject to that over-all limit. The objection there fore fails. In the result the petitions are dismissed. MAHAJAN J.-The question to be decided in these petitions is whether the Preventive Detention (Amend ment) Act, 1951, or any part thereof is invalid and whether the petitioners who have been detained are entitled to a writ in the nature of habeas corpus on the ground that their detention is illegal. The Act was enacted by Parliament on the 27th February, 1951, and according to its express terms will cease to have effect on the 1st April, 1952, save as regards things done or omitted to be done before that date. The point that has been canvassed before us is that sections 9(2) {a) and 12 of the Act are invalid as these infringe the fundamental rights conferred under arti cles 21 and 22 of Part III of the Constitution. Section 9 of the Act as amended reads as follows :- " (1) In every case where a detention order has been made under this Act, the appropriate Government shall, within six weeks from the date specified in sub section (2) place before an advisory board constituted by it under section 8 the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report made by such officer under sub-section (3) of sec tion 3. 1951 s. Kr/Jhnan and Others. v. The State of MadrOJ. Mahajan J. SUPREME COURT REPORTS [1951] (2) The date referred to in sub-section (1) shall 630 be- (a) in every case where at the commencement (Amendment) Act, 1951, of the Preventive Detention a person is under detention in pursuance of a deten tion order made under sub-clause ( i) or (ii) of clause (a) of sub-section ( 1) of section 3, the date of commence ment of the said Act ; and (b) in every other case the date of the detention order." Section 12 is in these terms :- "For the avoidance of doubt it is hereby declared- ( a) every detention order in force at the commen cement of the Preventive Detention (Amendment) Act, 1951, shall continue in force and shall have effect as if it had been made under this Act as amended by the Preventive Detention (Amendment) Act, 1951 ; and (b) nothing contained in sub-section ( 3) of section 1, or sub-section ( l) of section 12 of this Act as origi· nally enlcted shall be deemed to affect the validity or duration \>f any such order." Mr. Nambiar for the detenus challenged the vires of these sections on ~he following grounds : ( l) That article 22( 4) of the Constitution limits the legislative power of Parliament and State legislatures in respect of preventive detention laws in the matter of duration of the period of detention and provides that no law of pre ventive detention can authorise the detention of a person for a longer period than three months without the inter vention of an advisory board and without obtaining its opinion with.in three months. The amending Act, 1951, by section 9 authorizes detention for a period longer than three months without the opinion of the advisory board having been obtained within the said period of three months from the date of the actual detention in respect of persons detained under Act IV of 1950 as infringes the funda it or~nally stood and (2) That mental right conferred by article 22( 4). Parliament in exercise of powers conferred on it under artide 22(7) having prescribed in section 12 of Act IV it thus 1951 s. Kri$hnan and Others v. The State of Madra! Mahajan J. S.C.R. SUPREME COURT REPORTS 631 the amended Act contravene of 19'0 a maximuttl period of one year for detention in certain classes of cases without obtaining the opinion of the advisory board, that period of one year became a part of the content of the fundamental right conferred under article 22(4) of the Constitution. Sections 9 and 12 of this fundamental right inasmuch as they authorize detention of persons yvho were detained under orders passed under section 3 (1) (i) and (ii) of Act IV of 1950 beyond the period of one year prescribed therein, and are therefore void. (3) That Parliament has no authority to alter period of one year prescribed by it by virtue of autho rity given to it under article 22 (7) (b) of the Consti the cases of persons detained tution so as to affect under Act IV of 1950. (4) That the Constitution does not envisage detention for an indefinite period and that inasmuch as the amended Act has failed to provide a maximum period for the detention of a person, it is repugnant to the Constitution and is void ; that it was obligatory on Parliament while making the law pro the maximum viding for preventive detention to (5) That the provisions ot period for such detention. the Constitution these sections detention contrary inasmuch as procedure established by law (Act IV of 1950) in r~s­ pect of detentions under that Act, because under estab lished procedure detention beyond a period of one year reasons given above it was con was void. For tended that as the petitioners the maxi mum period of one year under section 12 of Act IV of 1950 had expired on 27th February, 1951, they were entitled to their release. infringe article 21 of they authorize in the case of For a proper appreciation of the points urged by the learned counsel and the manner in which they were combated by learned Attorney-General, it is necl!s sary to shortly state the nature of the relevant amend ments introduced by the amending Act iii. the Prevent In section 8 of Act IV ive Detention Act, IV of 1950. tl1e constitution of advisory of 1950, which concerns boards, the new Act has provided that the board shall consist of three persons instead of two except in cases s -10 S.C. In dia/67. 1951 s. Krl, hna11 and Others v. Th• Stale of Madras Mahajan}• 632 SUPREME COURT REPORTS (1951] ten weeks of it also authorizes the amended Act makes before an advisory board. where before the commencement of the amended Act reference had already been made to an advisory board. Section 9 of Act IV of 1950 has been substituted by section 9 'of the amending Act and it gives the benefit of to all classes and cases of persons, the advisory board who under Act IV of 1950 were not entitled to that bene fit. It makes it . obligatory on government to place all these cases, like all other cases, within six weeks from a prescribed date In section 10 it obligatory on the adviso_ry board to submit its report to the govern ment within the date specified under the advisory board section 9 and to call for such information as it deems necessary from government and from the person concerned and it em powers it to give a hearing to the detenu if in any parti cular case it considers it essential. Section 11 makes the opinion of the ad~isory board binding on government. It also authorizes government the deten tion of persons for such period as it thinks fit in cases is in favour of the where the opinion of the board continuance of detention. orders of detention in force at the commencement of the amended Act will be deemed to have been made under this Act. A new section, 14, has been introduced in Act IV of 1950 and it authorizes temporary release of persons detained. Section 12 provides to continue inasmuch as the original Act The provisions of the amended Act are thus a great improvement on the detenus of pro provide a greater opportunity ving their innocence than they had under the original Act. The detention of a person without the case being referred to the opinion of an advisory board consti tuted of independent persons has been completely done away with, except for a period of three months pro in article 22(4) of the Constitution. What vided for the amended Act has in substance done is that instead the cases of persons preventively detained being considered by ordinary courts of law, a special tribunal designated as an advisory board and consisting of men judicial experience has been given authority of high S.C.R. SUPREME COURT REPORTS 633 to examine their cases within a prescribed period and the decision of that authority has been made binding on government. This tribunal is obviously no substi tute for a court of law but a provision like this is in the nature of a substantial solatium in cases of pre ventive detention wherein ordinarily the detaining authority is the judging authority as well. 1951 S· Krishnan and Other& v. The State of Madra1 Maha} an/. their vires Shortly stated, Mr. Nambiar's attack on these bene ficial provisions and concerning is based principally on the method adopted by the draftsmen the detentions which of the Act for switching over were being continued under section 12 of Act IV of 1950 and which were valid by virtue of the constitu tional provisions contained in article 22( 4) (b) of the Constitution the constitutional provisions contained in article 22( 4) (a) so that they may be given the benefit of an advisory board's opinion. His grievance is that in doing so the amended statute has enlarged the period of three months provided under article 22( 4) the advisory board and has extended for a report of the period of one year mentioned in section 12 of Act IV of 1950. This argument is based on the assumption that the period of one year mentioned in section 12 of Act IV of 1950 was an Immutable and unalterable orie and that Parliament could not amend section 12 of tl1e Act in any manner whatsoever once having enacted it. It seems to me, I am unable to accept this contention. that it was open to Parliament to amend section 12 and substitute another maximum for the period of one If Parliament had recourse year mentioned therein. the petitioners to that alternative, could have no possible grievance as regards the vires of the new legislation. As regards the period of three months, it was essential to fix some date from which that period had to be calculated in respect of cases which were previously governed by section 12 of Act IV of 1950. Under that section they did not have the benefit of the advisory board and when the new law gave them that benefit, a t(rminus quo had to be fixed for the period of three months during which the advisory board had to submit its report. The amended Act t11en in my opinion, 634 SUPREME COURT REPORTS (1951] 1951 s. Krishnan and OtherJ v. The State of MadraJ Mahajan J. these specified classes achieved this by prescribing in of cases the date of the commencement of the amended Act as the date from which this period was to begin and by section 12 it provided that all detentions con the commencement of the tinuing at amended Act shall be deemed to be detentions under the amended Act. the date of its report the government within After a careful consideration of the argument of Mr. Nambiar I have reached the conclusion that there is considerable force it by the in the reply made learned Attorney-General. He contended that article that no 22(4) provides law providing for preventive detention shall authorize detention of a person for a longer period than three months and that the amended Act has not in any manner infringed this provision ; on the other hand, it provides that the advisory board must make It was urged that in order to judge the vires of weeks. the amended Act it was not relevant to take into con sideration detention of persons validly detained under a different statute and that its vires must be adjudged on its own provisions and not with reference to what It was has actually happened under another law. frankly conceded lature passed legislation in a manner which amounted to a enactments were passed with the purpose of defeating the constitutional provisions, then laws could be attacked on that ground but not on the ground of their vires, that in the present case no such argument had been taken or could be taken and that being so, the contention of Mr. Nambiar was not justified. that if Parliament or a State the Constitution inasmuch as fraud on In my opinion, the statute as framed docs not in any way contravene or abridge either the provisions It was open to Parlia. of article 21 or of article 22. ment, as already observed, the maximum period of detention mentioned in section 12 of Act IV of 1950 and to enhance it. It was also open to govern ment to release these detenus after the expiry of one year and to serve fresh orders of detention on them after their If that revise under the amended Act. to alter 1951 s. Krishnan and Other~ v. The State of Madras Mahajan J. 1 S.C.R. SUPREME COURT REPORTS 635 through form of to abridge It was argued it virtually amounts that the amended statute had been done, no question could possibly be raised that the period of three months provided for in article 22(4) of the Constitution had in any way been affected. ceremony, Instead of going Parliament by section 12 of the amended Act pro vided that all detention orders in force under Act IV of 1950 be treated as detention orders under the amended Act. · By the effect of this section the deten tion of all such persons becomes a fresh detention, under the new law, with the result that nothing in the amended statute can · be said the funda mental right conferred by article 22 ( 4) of the Consti tution. not a new and an independent statute and that in spite of the amendments it remains the same statute that the detention of the as was passed in 1950, and petitioners is under the same law of preventive deten tion and it therefore offends against article 22( 4) of the Constitution and tacking of the period of detention under one Act to the period of detention under another Act and as such amounts infringe ment of the fundamental right. In my opinion, this contention, though attractive, is without force. Techni cally speaking, an amended statute remains the same statute as originally enacted but from that proposition it does not follow that the law contained in the amended statute is the same law as was contained in the original one. Section 9 of the original Act has been substituted by section 9 of the amcI).ded Act and declares a new law as was it is not a re-enactment of the law and contained in the earlier statute. Section 12 of original statute has been completely repealed and no longer exists. The law declared by that section has been abrogated. The law declared by section 12 of the amended Act is in the nature of a substituted provi sion. that the law declared by the amended statute is not the same law as was declared by the original statute and to that extent the amended statute is in the nature of a new and independent today by statute. The petitioners are being detained indirectly and substantially It seems to me to an 19Sl S. Krishnan and Others v. The State of Madras Ma/lajan J. 636 SUPREME COURT REPORTS [1951] force of the provisions contained in sections 9 and 12 of the amen<led Act and not under the law that was passed in 1950, as by repeal of section 12 of that Act The their detention Wlder it technically terminated. new law admittedly standing by itself does not autho rize detention of any person beyond a period of three months except the manner provided by article 22(4) of the Constitution. No question whatever arises of tacking of the period of detention under one law to the period of detention under another law, inasmuch the detention under the earlier law automatically terminates with the repeal of section 12 of Act IV of 1950. For the. reasons given above, the first contention of Mr. Nambiar fails. regarded as a the alternative argument of the effect In view of the above decision it is unnecessary to consider learned Attorney-General to that in case it is held that section 9 contravenes article 22(4) (a) of the Con stitution, it is a valid law under article 22(4) (b) of the Constitution and hence the order of detention is that in legal. Mr. Nambiar's contention to the effect case the petitioners' detention is detention under the amended Act, then it is necessary to serve them with fresh grounds of detention does not appear to me to be well founded. The point was not raised in the petitions and no argument was addressed to us that any right under article 22(5) had been infringed. Moreover, as at present advised, the contention has not got much force because of the clear provisions of section 12 of the amended Act which treats every detention order having force at the commencement of the amended Act as being deemed to continue unde_r it. When detention is not on any fresh grounds but on grounds already served, any default in the formality of again serving those very observing grounds on the detenu cannot be said to be an infringe ment of the fundamental right under article 22(5) of the Constitution. I The next contention of Mr; Nambiar that Parliament having fixed the maximum period of detention in section 12 of Act IV of 1950 under its powers contained l!»Sl s .. Krishn•11 and Othert v. Tht State of Madras Mahajan J. S.C.R. SUPREME COURT REPORTS 63"/ in article 22(7) of the Constitution, that maximum became a part of the content of fundamental right and sections 9 and 12 of the amended Act contravene this fundamental right inasmuch as these authorize deten tion of the petitioners for a period beyond one year again, in my opinion, is not sound. In other words, the argument of the learned counsel amounts to this ; that as soon as Parliament by law under article 22(7) prescribed a maximum period for which any person may be detained under any law providing for prevent ive detention, then that period becomes a part of the fundamental a person under conferred on the Constitution. The only method of Part III of adding to or subtracting from those rights is by an amendment of the manner pro vided therein. By clause (7) of article 22 Parliament fundamental has not been authorized rights. The contention of the learned counsel is based on an erroneous assumption that article 22 in clause (7) confers a fundamental right on a person ; in its concept it restricts to a certain degree the measure of the fundamental right contained in clause 4 (a) of the article. the Constitution to add to the The argument that Parliament has no authority to alter the period of one year prescribed by it under article 22(7) (b) of the Constitution is again founded that the clause confers on an erroneous assumption legislative power on Parliament. The ambit of the legislative powers of Parliament is contained in article 245 of the Constitution read with the entries in the Seventh Schedule. Article 22 of the Constitution res It does not tricts those powers to a certain extent. enlarge them. Clause (7), however, cuts down restrictions Parliament having power to make the law has also the power to alter or amend it, if it so chooses. It is difficult to assent to the proposition of the learned counsel that if a person is detained according to a law that existed at the time of his detention, then in regard to him it is that and that law alone which matters and any change in the to a certain extent. 19Sl Si,, Krishnan and Others "~ Thi Stale of Madra3 Mallajan J. 638 SUPREME COURT REPORTS [1951) law, even if it has him in any manner whatever. retrospective effect, cannot affect the . sub-clause shall authorize The next point canvassed before us was that the Constitution does not envisage detention for an indefi nite period and that it is obligatory on Parliament to provide a maximum period for detention of a person under a law of preventive detention. In my opinion, this argument again is not sound. Emphasis was laid on the proviso to article 22(4) (a) which enacts that nothing detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7), and it was urged that the word "may" in article 22(7) must be read in the sense of "must" and as having a compulsory force inasmuch to prescribe by law a maximum period advancement of justice and for public good, or for the to preventive detention. benefit of persons subjected Reference was made to Maxwell on "Interpretation of Statutes" (9th Edn., page 246) and to the well-known case of Julius v. Bishop of Oxford('). Lord Cairns in that case observed as follows :- the enactment authorizes Parliament for detention, for "Where a power is deposited with a public officer for the purpose of being used for the benefit of persons that power ought to be exercised." the measure of the In my opinion, clause (7) of article 22, as already pointed out, true concept to a certain degree restricts fundamental right con tained in clause ( 4) (a) and in this context the rule referred to by Maxwell has no application whatever. Moreover, the provision in the · Constitution is merely an enabling one and it is well settled that in an en abling Act words of a permissive nature cannot be ( Vide Craies on Statute given a compulsory meaning. law, p. 254). Be that as it may, the point is no· longer open as it has been concluded by the majority decision in Gopalan's case( 2 learned Chief Justice at p. 119 of the report observed as follows :- ). The (I) 5 App. ca•. 214. (2) '19S0] 8CR 18< S.C.R. SUPREME COURT REPORTS 639 "Sub-clause (b) is permissive. It is not obligatory on the Patliament to prescribe any maximum period. It was argued that this gives the Parliament a right to If that allow a person to be detained construction is correct, it springs out of the words of sub-clause (7) the court cannot help in the matter." indefinitely. itself and 1951 s' Kwitnatt mtd Ot ltera v. 17.e State of Mtt/lrtn. 'Mahai11n J. Nothing said by Mr. Nambiar is sufficient to per suade me to take a different view ·of the matter than was taken in Gopalan's case(1). It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of ~ife was limited to on_e year. Such temporary statutes cease to have ahy effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The · detention of the petitioners life of the come to an end automaticaUy with the statute and these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of· deten- · tion for those detained under this law. - is bound therefore The fast point urged by Mr. Nambiar that the pro visions of the amended Act contravene the provisions of article 21 of the Constitution does not impress me. The expression "procedure established by law" was the majority in Gopalan's case(1) as considered by meaning procedure prescribed by law. The petitionen have been detained in accordance with the procedure prescribed by the amended statute and their detention therefore is in accordance with procedure prescribed by law. The contention of Mr. Nambiar that they are :JOVerned by the procedure contained in section 12 of Act IV of 1950 as that was the procedure at the time when initially they were detained is, in my opinion, It is open to Parliament to change the pro unsound. cedure by enacting a law and that procedure becomes the procedure established by law within the meaning c1 > [19SOJ s.c.1..11s. SUPREME COURT REPORTS [~951] l~l S-lVWuual ot/Ot~' "· '17,. 3••tt •I JI ..... in article 21 of the Constitµtion. of that expression Further, the present detention of the petitioners being by virtue of section 12 of the amended Act a new detention under the amended Act, the procedure pres- - cribcd by the amended Act is the procedure established by law within the meaning of article 21. For the reasons given above, in my opinion the Preventive Detention (Amendment) Act, 1951, is a valid statute and the provisions impugned by Mr. Nambiar do not contravene the Constitution and the pctitionen arc not entitled to their release merely on the ground that the period of one year mentioned in section 12 of. Act IV of 1950 has expired. On the merits of the petitions it was urged (1) that the grounds supplied to then were vague and insuffi cient to enable them to make a, proper representation, and (2) that their detention was mala fide and on poli· tical and party considerations. There is no force what• ever in ~hese contentions. The result is that all these pet1t1ons arc dism!_ssed and the rules are discharged. This order will have force in the case of petitioners who have so far not been released by Government. S. I.. D•• J. S. R. DAs J.-1 agree dismissed and I do so substantially on itatcd by my learned brother Mahajan. that the petitions should be the grounds BosE J .-With the utmost respect I am unable to fo my judgment, section 11 accept the majority view. (1) of the amcndip.g Act is ultra virei. The ground on which I hold it to be so was suggested by me in the course of the arguments. It was, however, not very fully dealt with possibly because I expressed my view at a late stage and possibly because I did so somewhat akctchily. But as I am ploughing a lonely furrow .that, fortunately, will not much matter. ' Articles 21 and 22 confer the fundamental right of. personal liberty. The first is general, and as the mean ing of the words "procedure established- hf law" ha& s.c.R. SUPREME COURT REPORTS 641 been thoroughly discussed in Gopalan's casc:(1), I do not intend to cover that ground. But so ·far as article 22 ( 4) is concerned, my opinion is that it confers a funda mental right not to be kept under preventive deten tion beyond a certain period. The extent of ·that pcriqd can vary but it can only be extended beyond three months within certain fixed liniits and subject to specified conditions. 19SJ. s. Kmhn1J11 ·alld Othera · •• The State of Madra1. Bose/. • Article 246 read with item 9 in List I and item 3 in List III of the Seventh Schedule conf crs jurisdiction upon the Union Parliament and ·the State Legislatures to make laws for preventive detention, but article 22 (4) imposes restrictions. It says that- "No law providing for preventive detention shall authorise the detention of a person for a longer period than three months," unless certain conditions arc fulfilled. The conditions arc set out in sub-clause (a) and sub clausc (b). Under the former, a law can provide for preventive detention over three months provided (1) there is an advisory board of a certain character, (2) is of opinion that there is sufficient cause the board for longer detention, and (3) the board reports before the expiration of the three months. Then follows a further restriction which is contained in the proviso to 5ub-clause (4). This states that- "nothing this sub-clause shall authorise dc.~ention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7) ." Sub-clause (b) of clause (7) reads as follows : " (7) Parliament may by law prescribe- (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention.'' The second set of conditions is given in sub-dause (b) Gf clause (4). This sets out that a person can also be detained beyond three months providcd- '1). (19SOJ s.c.R.118. 1951 s, Krl .. ~nd'n and Otlt<n v. The Srate of Madras. Bose J, 642 SUPREME COURT REPORTS [1951} "such person is detained in accordance with the provisions of any law :inade by Patliament under sub clauses (a)~ Cb) of claus.e (7).'' I venture to underline the "and" becausei in my opinion, a lot turn~ on it. But I shall deal with that later. ·Sub-clause (a) of clause (7) empowers Parliament to prescribe- . "the circumstances under which, and the cla~ or classes of cases in which, a person may. be detained fot a period longer than three months under any law providing for preventive detention without obtaining the opinion ·or an advisory board in accordance with the provision of sub-clause (a) of clause (4)." that period can vary but In my opinion, these provision~ confer a fundamental right not to be detained beyond a certain period. The the maximum extent of period of detention cannot exceed tertain fixed limits. Those limits are (a) in the first instance, three months : if not, (b) the · maximum prescribed - by Parliament under sub-clause (7) (b ). In my opinion, no law can be made authorising detention either under sub-clause (4) (a) or ( 4) (b) unless maximum period of detention 1' · prescribed by Parliament under sub-clause (7) (b). I do hot agree with the contention that tlie word "may" in clause (7) means "must". I am not prepared to depart from the usual meaning of worti& unlt:sa compelled to do so for overwhelming reasons. In my . to prescribe or not to opinion, Parliament (7) (b). prescribe a .maximum peried under clause It cannot be compelled to do so. But equally neither Parliament nor a State Legislature is compelled three months. authorise preventive. detcniiOll beyond If, howevc:r, either wishes ltl do so, then it il bound to conform to the provision$ -of either sub<!awe (a) er sub-clause (b) of clause ( 4) or both ; and in the case of sub-clause (a) the proviso Is as much .:t part of the sub. clause a& its main provision. ll no maximum . llinit & fixed under clause (7) (b}, then the proviso o.nn11 t operate and if it cannot operate, no legnlatl~ action 1!)~1 $. Kru/llfan qn4 O 11.er.J v. TM State of Mad.raJ. Bo~J. S.C.R. SUPREME COURT REPORTS 643 can, in my opinion, be taken under clause (4) (a). If A is told hy B that he may go to a bank and withdraw a sum of money not exceeding such limit as may be med by c, it is evident that until c fixes the limit no money can be withdrawn. C cannot be compelled to fix a limit but if he chooses not to do so, ·the money can not be withdrawn. Equally, if A is told that he may withdraw money not exceeding a limit which he himself may fix, there can, in my O.{>inion, be no right of withdfawal until . he fixes the limit. Look at it another way. A British General is told by the Indian Government that he may travel from India to Burma quickly and easily by plane. He is also told that he may in addition drive by car over the hills and through the jungles provided he does not go beyond the confines of any road made · hy the Burmese Government ; and told , that it may, if it so chooses, put in a. road at India's expense. It is fairly obvious that the Burmese Govern~ ment is not bound to make the road and it is equally obvious that under these conditions the General will not be able to go by car· unless the road is made. the Burmese Government the State Legislatures that I realise that analogies are often iqaccurate and' may be misleading. But these examples serve to illustrate the line of my reasoning. In my opinion, the Constitu they may tion (a) three months legislate for preventive detention beyond but not beyond a limit which Parliament may fix and (b) tells Parliament that Parliament itself may do the same thing provided the detention does not exceed a maximum which it may itself fix. There is no need ·to fix a maximum in either event but if that is not done, then there can be no legislation under clause (4) (a), Until tl\e road is built there is no right of way. The same limitation attaches to clause (4) (b ). Legis lative action cannot be taken under this unless, first, the law is made by Parliament and, second, it is madtt l again "µrlEler sub-clauses (;i.) and (b) of claus¢ (7)". "enturc to underline the "and" becaqse, in my opinion, "'-andl' means and &liould mean "and" unless there is 1951 S. XriJhnan and Oth"er! v. The State of MadraJ. Ban!. 644 SUPREME COURT REPORTS [1951] compelling reason to make it mean "or". To my mind, not only is there no compelling reason here but, on the reasons why it should be contrary, there are powerful construed in its usual and normal sense. The reasons are these. fullest interpretation in this behalf, Articles 21 and 22 confer a fundamental right and the duty It is therefore give a fundamental guarantee. that the right is kept fundamental of the Court to sec scope is given to the guar.antee. that the It is our duty to ensure that the right and the guarantee are not rendered illusory and meaningless. Therefore, wherever there is scope for difference of opinion on a matter of the interpret favours the subject must always be used ation which because the right has been conferred upon him and is the right which has been made fundamental, not the , fetters and limitations with which it may be circums cribed by It is true the full scope and content of the right cannot be determined without the boundaries within which it is to be examining confined, and I agree that in interpreting these provi sions equal weight must be given to all the clauses; treated with greater that no one part can be that is done, sanctity doubt still remains, then the doubt must, in my judg ment, be resolved in favour of the subject and not of the State. than the rest. But if, when all legislative action. that, and "and" Brush aside for a moment the pettifogging of the law the nonce all the learned disputations and forget for "or", or "m4yu and "m:ust". Look past the mere verbiage of words and penetrate deep into the heart and spirit of the Constitution. What sort of State are we intended to be? Have we not here been given a way of life, the right to individual freedom, the utmost the State can confer in that respect consistent with its own safety? :and Is not the sanctity of emphasised again and again? Is not our Constitution in violent contrast to those of States where the State is everything and the serve the will of those who for the time being wield almost absolute power ? I have no doubts on this score. individual but a slave or a serf the individual recognised S.C.R. SUPREME COURT REPORTS to be our duty, wh.en I hold it therefore the construction of any ambiguity or doubt about clause resolve it in favour of the freedoms which have been so solemnly . stressed. Read the magnificent sweep of the preamble:- this chapter on Fundamental Rights, 1951 S. L-isfitt'111 tmd C)tller3 v. Tfle Sta!e of Mcirtu. llt11e 1. "We, the people of India, having solemnly resolved ·Re to constitute public and to secure to all its citizens : Justice, Liberty, Equality, Fraternity." India into a · Sovereign Democratic Read the provisions of the chapter on Fundamental Rights:-- "All citizens shall have the right etc." • • "No person shall be deprived of his life or personal csablished except according to procedure liberty by law." "No person who , is arrested . shall be detained custody without etc." 'No law providing for preventive detention ·shall authorise etc. unless-" Read the provisions which circumscribe the powers of Parliament and prevent it from being supreme. What does. it all add up to ? How can it be doubted that the stress throughout is on the freedom conferred and that regrettable necessities ? limitations placed on them are but language I do not doubt that in construing the f'..onstitutior:i we must do. so according to all the usual well recog nised canons of construction. I· do not doubt i.s plain, full effect must be giftn to it whatever the implications. All I insist on is that when there is ambiguity or doubt and it is poMible to take either this view or that, then we must come down on the side of liberty and freedom; and I err in good company in so holding. Lord Romer said as much in LiversiJge's case (1) though he made an exception in the (J) (t9'J2J A.c. 206 at 2so. SUPREME COURT REPORTS [1951) 1951 S. K,;, hnan anA Ot,~ers v. The State sf Madra!. ~~ .. J. case of war legislation. How can it be said that in this case there is no ambiguity and that there is no room for doubt ? When I am asked to hold that "and" means "or,, and that "may" means "must", how can it be said that there is no room for difference of opinion? When I am old that- "no law providing for preventive detention shall authorise the detention of a person for a longer period than three months" unless there is an Advisory Board etc., and even then not beyond "the maximum period prescribed by made by Parliament under sub-clause (b) of clause (7)" how can it be said that there is no doubt about the and unambiguously intention and that clearly means that the detention can be for an. indefinite period even under a State law if Parliament does not choose to act under clause (7) (b)? To my mind, there is am biguity and there is room for doubt. exceed such I feel that the people of India chose for themselves they entrusted to Parlia the free way of life and the duty of satisfy ment, which represents their will, itself that any limitations hereafter to be placed on essential and the freedoms conferred. are necessary and that these limitations will not limits as itself shall determine solemnly and deli Parliament berately, I after anxious scrutiny and dutiful cannot bring myself to believe that the framers of our liberties guaranteed Constitution should be illusory and meaningless or that they could be toyed with by this person or that. They did not bestow on the people of mass of malleable clay but created a living organism, breathed life into it and endowed it with purpose and vigour so that it should grow healthily and sturdily in the democratic way of free way. In the circumstances, I prefer to decide in favour of the freedom of the subject. life, which is the India a cold, intended lifeless, care. I am not hampered here by considerations of war . necessity or emergency legislation where some autho rities hold that the canons of constructions are different 1951 S. Kri.shnan and Others v. Tise State of Madra1. Boie· I. S~C.R. SUPREME COURT REPORTS 647 and that allowance must be made in favour of the State for the imperfections of language used in legisla tion which had to be drafted and enacted in a desper ate hurry with the State in dire and immediate peril. I am construing a Constitution which was hammered out solemnly and deliberately after the most mature consideration and with the most anxious care. I feel there is ambiguity or doubt, bound, therefore, when to resolve it in favour of what I conceive to be the free way of a Sovereign Demo~atic Republic. After all, who framed the Constitution and for whose benefit was it made ?-not just for those in brief authority, not only for lawyers and dialecticians bqt for the com It should therefore be construed, mon people of India. when that can be done without doing violence to the language employed, in a simple straightforward way so that it makes sense to the man in the street, so that the common people of .the land can follow and under stand its meaning, To my mind, the whole concept of the Constitution is that after years of bitter struggle the citizens of India are assured that certain liberties shall be guaranteed to them and that these liberties shall not be curtailed beyond limits which they and all the world can know and which can only be fixed by itself, the highest authority in the land, Parliament directly and specifically opportunity after affording for due deliberation in that august body. I would struggle hard against any interpretation which permit ted evasion of those important limitations and which permitted those hardwon liberties to be curtailed by some accidental side wind which allows virtual dele gation of the responsibility for fixing the maximum limits which Parliament is empowered to fix to some lesser authority, and worse, for' fixing them ad hoc in each individual case, for that, in my opinion, is what actually happens, whatever the technical name, when Parliament fixes no maximum and lesser authorities in each case how long the individual should be detained. I am clear that these are not matters which should be viewed technically or narrowly but in the broad and liberal spirit in which they were · conceived. Bearing in mind, I will to decide left free 19SI S. IriJhnan 111111 Othm v. Th• Stat1 •I Madr.aJ. B11Jt J. 648 SUPREME COURT REPORTS [1951) proceed amending Act. to examine impugned provisions of the In my It confers this It takes away nothing. judgment, section 9 is good because it confers It a benefit and a privilege. gives all detenus the right to ga before an Advisory Board for review of their cases. not only on those who may be detained In the future those already under detention. And further, hut also on it confers this right on those who had no such right before. This is not an infringement of any fundamental right nor does it contravene any article of the Consti tution; therefore Parliament was free to legislate as. it that. It was free artificially to alttr pleased regarding the starting point of the order of detention which i& what it has done in sub-section (2)(a). That section,· in my judgment, is intra vires. So also is new section 12 which continues in force existing detentions despite the expiry of the old Act that the passing of the new Act shall not and states the validity or Jurlllion of orders passed affect either It will be remembered that the under the old Act. detentions we are considering in these cases were good under the old Act. That Act prescribed a maxim, um In limit, namely one year, for this class of detention. my opinion, Parliament had the in this particular manner, for the purpose of removing doubts, that detentions already in force under that Act should in force for the maximum period already continue force of the prescribed. That, to my mind, is the words "continue," "validity" and "durlltion." That would have been the result in any event but section ll is there to remove possible doubts. right to say Section 11 (2) is alS<? good because here again a bene fit is conferred. Detenus who had no right to rclcaM: on the .idvicc of an Advisory Board arc here giv~ this privilege. Therefore, But this also (1) is, to my mind, 11ltr11 oires. &uh-section that we find an infringement of article 22( 4).. It is ~e It reads:- ·intra I/ires. "ln any case where the Advisory Board has report• ed that there is in its opinion suflicicnt cause for the de the appropriate Government may tention of a peison, S.C.R. SUPREME COURT REPORTS 649 confirm the detention order and continue the detention of the person concerned for such period as'it think.~ fit". This is word for word the same as section 11 of the old Act. It does not prescribe a maximum limit. 19SI s. KriJ1t1111n •M OtlierJ v. The $tote 11 f ltlurl!IJ. a111e ·J. Now section 11 replaces sections 11 and 12 of the old 11 Act. The amending A~t directs that new section be substituted for old sections 11 and 12. Old scc ci_on 12 had prescribed a maximum limit of one year in certain classes of cases. That is done away with the new Act As regards the rest, neither the old Act limit for other classes of nor the new prescribes any detention. That, in my opinion, not only contravenes article 22( 4) but in effect shifts the responsibility for prescribing ·a maximum the executive authorities of each State and allows them to do it ad hoc in each I am not speaking technkally at the moment. case. I am viewing it broadly as the man in the street would. the position of the dctenu I am placing myself in and looking at it· through his eyes. The niceties of the law do not matter to him. He docs not care about grammar. All that matters to him is that he is behind the bars and that Parliament has not fixed any in his · kind of case and that local authorities tell him that they have the right to say how long he shall main under detention. I cannot bring myself to think The intended by that. powers given to Parliament arc ample .. The Safeguards for the safety of the State are all resort, immediate action can be taken under the emer gency provisions. Therefore, when Parliament and the· State Legislatures arc told that they cannot authorise three months unless Par preventive detention beyond I am of opinion liament docs tMs and that, that the responsibility to do these things is on Parliament ·· itself and · that in this particular matter there can be no dele gation of authority. The Constituent Assembly has en trusted this particular matter to the care of Parliament special respon itself and has m~dc this Parliament's sibility. The country is to receive the benefit of . the mature judgment, wisdom and patriotism of that august body. therefore entitled the Constitution. this was In the there. 1951 s. Kris/Jnan WJd Others v. The State of Mathas. 81)3,I J. 650 SUPREME COURT REPORTS [1951] in my opinion, and each case must be I am not doubting Parliament's . general powers . these powers of delegatlon. But, judged are circumscribed in another case and as mine is a dissenting voice here, all I need say in this case is the matters that in my judgment this Is not one of which can be delegated. consideration circumstances. As this matter It was said that all this is irrelevant because a maximum limit has in fact been fixed in the present , instance. It was argued that the life of this Act has the life of the only been fixed for one year and old Act was also only one year and that th'is in effect fixes a maximum. there is high I am aware I venture to dissent with authority the greatest respect the utmost reluctance, but with I find myself unable to agree. for this view and In the first place, limit which Parliament is authorised fixed in this indirect way. What Parliament is powered I cannot agree that the maximum fix can be to do under article 22(7) (b) is to prescribe- "the maximum period for which any person may in any class or classes of cases be detained." It cannot do this by saying that no person shall be detained beyond the 26th of February, 1952, because that means that persons arrested on the 27th of Febru ary, 1951, can be kept under detention for a year while those arrested on the 25th of February, 1952, can only be detained for one day. That, in my judgment, is not what is meant by prescribing a maximum period. In the next place, when Parliament is authorised to do to do so consciously and deliberately after giving the matter due and mature that Parliament consideratlon. had this provision in mind and intended to act under it when ft merely fixe-0 the duration of the Act. Had the matter been properly discussed and placed lx1fore Parliament in the way it should have been, it is con ceivable that it might have considered that the maxi mum period o~ detention should not exceed, say, six months though the duration of the Act should be· OB!! It is not possible to say this, it is expected S.C.R. SUPREME COURT REPORTS 651 In other words, that person could continue to year. be arrested so long as the Act was in force but they could not be kept under detention for more than six months. With the utmost respect, I cannot agree that functions so solemnly entrusted to the care of Parlia ment under fundamental clauses can be dis charged unconsciously. 19Sl S. ICHi1iltdt ttndOthers . . v. The State Madras. Bose I. In the third place, I cannot agree that these deten- - tions would come to an end with the expiry of the Act. The rule in the case of temporary Acts is that- to the contrary, after a "as a general rule, and . unless it contains some temporary special provision Act has expired no proceedings can be taken . upon it, further effect. Therefore, and it ceases to have any offences committed against temporary Acts must prosectded and punished before the Act expires." (Craies on Statute Law, 4th edition, page 347)· But transactions wh'ich are concluded and complete before the Act expires continue in being despite expiry. See Craies on Statute Law, page 348, and 31 Halsbury's Laws of England (Hailsham Edition), page I take this to mean that if a man is tried £or an 513. offence created by a temporary Act and is found guilty and sentenced to, imprisonment, he would have to serve his term even if the Act Were to expire the next day. In my opinion, the position is the same in the case of detentions. A man, who is arrested under a temporary detention Act and validly ordered to be detained for a particular period, would not be entitled to claim release before his time juSt because the Act expired earlier. five years' say, Then again. The Act we are considering has special the contrary. Section 11(1) empowers provision to order the either a State or the Union Goverrunent detention of a person "for such period as it thinks fit;,. If this provision is not altra vires, the Act in express terms permits the appropriate Government to order a detention which shall endure beyond the life the fundamental pro of the Act itself, and unless visions of the Constituti()n can be called in aid, there is nothing to prevent Parliament from enacting such a SUPREME COURT REPORTS [1951). s. XriJlinan ..... andOi/,.n Th• St•I• •f M,,.,,.,,, . .... 1. to expire on the mere fact that the Act under law. Therefore, consideration is the 26th of February; 1952, docs not, in my opinion, mean that detentions under it must necessarily come to an end on that date. That in turn means that no maximum period has been prescribed even indirectly • Vioked straight in the face, what docs the decision of the majority uphofding the validity of section 11 (1) impon if it is pushed to its logical conclusion ? To me it spells just this. The Constitution tells all persons resident in the land- "Hcre is the full extent of your liberty so far as the length of detention is concerned. W c guarantee That you will not be detained beyond three months unless Parliament otherwise directs, either generally or in your particular class of case; but we empower Parliament to smash the guarantee absolutely if it so chooses without let or hindrance, without restriction. Though we authorise Parliament to prescribe a maxi· mum limit of detention if it so chooses, we place no compulsion on it to do so and we authorise it to pass legislation which will empower any person or authority Parliament chooses to name, right down to a police ronstablc, to arrest you and detain you as long as he pleases, for the duration of your life if he wants, so that you may linger and rot in jail till you die, as did men in the Bastille." left of it can these powers, the fundamental In the absence of restrictions Parliament undoubt edly has legislate about preventive detention. But if you remove the restric right ? My tions, what concept of a fundamental right is something which Parliament cannot touch save by an amendment of the Constitution. The full content of the right can be as small or as narrow as yo1f please, but unless there i$ a residue which can answer that test, there is to my mind nothing fundamental. Now, I have no doubt that a fundamental right regarding the length of deteq tion was intended to be conferred, It would be poin~­ three .months and place it in the chapter on Fundamental Rights if that were. not so ; so also there would be no point in tht: the provision about to make 1951 S. Krishnan and Other8 v. The State of Madras. Bose J. . S.C.R. SUPREME COURT REPORTS 653 regarding this in clauses (4) and elaborate provisions (7). A simple clause saying that no detention shall ex ceed three months "unless Parliament otherwise directs" would have met the case. It is therefore clear to my mind that something fundamental regarding the length ol. detention which Parliament could not touch save by amendment of the Constitution was intended to be conferred. But if section 11 (1) is upheld, what is there left which is beyond the reach of Parliament ? Parlia ment has here in effect said that there need be no general limit to the duration of detentions and that lesser authorities can fix the duration in each individual case and arc free to detain for as long as they please. If that is so, then what is there left of anything funda mental regarding the maximum length of detention ? To my mind, the whole object of the elaborate pro visions in clauses ( 4) and (7) is to place restraints on powers regarding the length of indefinite and arbitrary detentions which would otherwise be absolute. For these reasons, I am of opinion that section 11 (1) ttltra vires. My only hesitation has been on I have searched long and is concluded this question tied. After con- score of Gopalarl1 case (1). to see whether anxiously there and whether my hands are 51derablc study of conclusion that I am not pound. the decisiol\, I have reached There were six Judges there. The present Act, the amending Act of 1951, was not under consideration but section 11 of the old Act, which corresponds t~ section 11(1) of the new, was considered. But only two Judges, namely, my Lord the Chief Justice and my brot~cr . Mahajan, this section directly. Their views arc directly counter to mine. They ex pressly hold that section 11 of the old Act is intra vires. the present Act That means their view. But the would also have to be upheld on the vires of sec other four Judges did not discuss their attention on tion 11 at all. They concentrated sections 12 and 14 of the old Act. . It is true my that section 11 ( 1) of ~icalt with (1) [1950] S.C.R. 8!. 1951 s. Kri•hnan and Other> v. The Stale of Madt&•· Bo3e J. 654 SUPREME COURT REPORTS [1951] brother Das made a general observation at the end of. his judgment that in his view "the impugned Act is to section 14" but he did not the circumstances, expressly consider section 11. I do not think Gopalan' s case concludes the matter. law except as In It is perhaps ironical that I should struggle to up hold these freedoms in favour of a class of persons who, if rumour is to be accredited and if the list of their activitirs furnished to us is a true guide, would be the first to destroy them if they but had the power. But to sway my I cannot allow personal predilections judgment of the Constitution. As Lord Justice Scrutton remarked in Rex. v. Home Secretary ( 1 ) : - "It is, indeed, one test of belief in principles if to cases with which you have ot> you apply them sympathy at all." and as Mr. Justice Holmes of speaking of the United States the American Supreme Court Constitution, said, "If there is any principle of the Constitution that more imperatively- calls for attachment than ahy other thought it is the principle of free thought-not free thought that wt hate." th<>se who agree with us but freedom for I respectfully dissent from the majority view and It follows, I the present detentions are bad. that the petitioners in these cases arc consider that section 11 (1) is ultra vires. in my view, that am of opinion ~ntitlcd to immediate rdeasc. Agent for the petitioner in Petition No. 303 : S11brali l'e'litions dismissed. manyt1m. Agent for the Petitioners in Petitions Nos. 618, 619, 021, 622 and 624 to 631 : V. P. K. Nambiyar. Agent for the State of. Madras: P. A. Melita. Agent for the State of. Assam : N aimit Ltd. Agent for the Union of India: P. A. Mehta. (I) (1923) L.J.K.B. 797