STATE OF WEST BENGAL v. ASHOK DEY &: ORS. ETC. ETC

(b) Wilen one closely examines the circumstances in which the Act was passed, the mischief intended to be remedied by its enactment, .and the purpose and object of enacting it, cl. (c) of sub-s. (2) considered in the background of sub... ( 1) of s. ( 3) must be construed to mean causinc insult to the Indian National Flag or to any other object of public venera tion in such a situation as reasonably exposes the act, causing such insult to the view of those, who hold these objects in qeneration or to. the publiC view and it would not cover cases when the Indian National Flag or other obje~t of public ,·eneration is mutilated, damaged, ournt defiled or dco troyed, complet~y unseen or when incapable of beinR seen, _by a~yonc whose feelings are likely to be hurt thereby. The act causmg. msult referred to in cl. (c) must be such as would be capable of arousmg the feelings of indignation in someone an~ tbat can _only be the case when insult is caused in the circumstances 1ust explained. So construed, cl. (c) would, be cl~arly within the ~xpressi?,n "acti.ng in .any manner p_re iudoicial to the marntenance of pubhc order . ThlS restricted construction of cl. ( c) is admissible on the statutory legislative scheme. On this construction tbe challenge to cl. ( c) on the basis that insulting an object of public vener0:tion in privacy could have no rational nexus with the disturbance of publtc order or secur1t·1 of the State. must fail. [ 445 H-446 DJ language and 436 SUPREME COURT REPORTS [1972] 2 S.C.R. CRIMINAL· APPELLATE JURI~DICTION : Criminal Appeals Nos. 217 to 233 of 1971. Appeals from the judgment and order dated September 13, 1971 of the_Calcutta High Court in Criminal Misc. Cases Nos. 169, 177, 222, 224, 229, 230, 231, 237, 285, 286, 287, 316, 328, 329, 330 and, 331 of 1971. Niren De, Attorney-General, D. N. Mukherjee and G. S. Chat:'erjee, for the appellant (in all the appeals). Niren De, Attorney-General, R. H. Dhebar, Ram Panjwanf (in all and S. P. Neyar, for the Artorney-General the appeals). India Somnath Chatterjee, D. K. Sinha, Rathin Das, and Indira Jai Singh, for the respondents (in Cr. As. Nos. 219, 223 and 225 to 227 of 1971). · . A B c Aruk Prakash Chatterjee, Rathin Das, Dalip K. Sinha and Indira Jai Singh, for the respondents (in Cr. As. Nos. 228 and 230 to 233 of 1971 ). D The Judgment of the Court was delivered by Dua, J.-These appeals have been presented to this Court pursuant to ce~tificate of fitness granted by the Calcutta High Court under Art. 132 (1) of the Constitution from a common judgment of that Court allowing 17 writ petitions presented on behalf of the persons detained under the West Bengal (Preven tion of Violent Activities) Act, 1970 (President's Act 19 of In the High. Court the consti 1970) (hereafter called the Act). tutional validity of the Act was challenged on the grounds : (I) that it was not a law made by Parliament as contemplated by Art. 22 ( 7) of the Constitution with the result that the ext en- . sion of the detention for a period longer than three months was unconstitutional. Sections 10 to -13 of the Act were described as violative of Art. 22( 4) and (7) of the Constitution; (2) that the restrictions both in respect of substantive law and in respect of procedure imposed by the Act on detenus' right guaranteed by Art. 19 (1) ( d) were unreasonable and, therefore, the Act was unconstittitional: and (3) that the Act was violative of Art. 14 of the Constitution inasmuch as it gave arbitrary, unguided and uncanalised power to the State Executive without prescribing any guidelines for its exercise. The High coun. held that the Act was not a Jaw made by Parliament in terms of Art. 22(7) of the Constitution. This conclusion is not questioned by the learned Attorney General be fore us and indeed he has conceded that the Act is not a Jaw made by Parliament as contemplated by Art. 22(7). The High £ F G . . H ) A B c D E F G H WEST BENGAL V. ASHOK DEY (Dua, J.) 437 Court then considered the question of the effect of the Act, if it is to be deemed to be an Act passed by the. West Bengal Legis lature. On this point it came to the conclusion that the provi sions contained in ss. 11 and 13 of the Act relating to the pro cedure before the Advisory Board in respect of the person detain ed for a longer period than three months was ultra vires Art. 22(7) of the Constitution because under the said Article, Parlia ment alone has been invested with jurisdiction to legislate on these matters. The State Legislature was accordingly held to be incompetent to make a law prescribing procedure for the Advi· sory Board and also to make a law providing 'for detention for more than three months. On the question of applicability of Art. 19 (1) the High Court came to the conclusion that it was not applicable to 1he impugned Act and, therefore, the Ac' could not be struck down as violative of Art. 19(1)(d) or under any other clause of Art. 19 ( 1) . The challenge on the basis of Art. 14 of the Constitution was also repelled as the classification con templated by the Act could by no means be considered unreason able. In the final result on the ground of invalidity of ss. 11 and 13 the writ petition was allowed with respect to the detention of the detenus beyond the period of three months. In this Court the learned Attorney General has concentrated his attack on the impugned judgment on the argument that Art. 22 ( 7) of the Constitution does not confer exclusive jurisdiction on the Parliament to make a law for valid detention of persons for a period longer than three months and that the State Legisla ture is fully competent, to make laws for detention, to prescribe procedure for the Advisory Board and also to make the detenus beyond the period of three months . . In order to appreciate the legal position it is desirable to re produce Art. 22 of the Constitution : "22. Protection against arrest and detention in cer tain cases : ( 1) No person who.is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practi- tioner of his choice. · (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest ex cluding the time necessary for the journey place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. - 438 SUPREME COURT REPORTS [ 19)2] 2 S.C.R. ( 3) Nothing in clauses ( 1 ) and ( 2) shall apply ( a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. ( 4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be ap- pointed as, Judges of a High Court has report- ed before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). ( 5) When any person is detained in pursuance of an order made under any 'Jaw 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 representation the earliest opportunity of making a against the order. ( 6) Nothing in . Clause ( 5) shall require the autho rity making any such order as is referred clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe- (a) the circumstances under which, and the class or classes of cases in which, a person may be de tained for a period longer than three months under any law providing for preventive deten tion without obtaining the opinion of an Advi sory Board in accordance with the provisions of sub-clause (a) of clause ( 4); A B C D E F G H A B c D E F G H WEST BENGAL V. ASHOK DF.Y (Dua, J.) 439 (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and ( c) the procedure to be followed by an Advisory Board .in any inquiry under sub-clause (a) of clause (4)." It is clear that cl. ( 4) of this Article only prohibits a law providing for preventive detention, to authorise detention of a person for more than three months unless an Advisory Board as contemplated by sub-cl. (a) of the said clause bas, before expiry of three months of detention, reported that in its opinion there is sufficient cause for such detention, or unless such person is detained in accordance with the provisions of any law mad.: by Parliament under sub-cl. (a) and (b) of cl. (7). Again, even when an Advisory Board has, under sub-cl. (a) of cl. ( 7), re ported the existence of sufficient cause, detention cannot exceed the maximum period prescribed by a law made by Parliament under sub-cl. ( b) of this clause. The expression "such detention" in sub-d. (a) ot cl. (4), according to the majority view Pooranla/ Lakha11 Pal v. U11ion of India(') refers to preventive detention and not to any period for which such detention is to continue because the decision about the period of detention can only be taken by the detaining authority. Now, the argument raised in the High Court and accepted by it and repeated before us by Shri S. N. Chatt<;rji on behalf of the respondents is that cl. ( 7 )(b) of Art. 22 makes it obligatory for the Parliament to prescribe by law the maximum period for to be which a person may be detained as also . the procedure followed by the Advisory Board in holding the enquiry under cl. (4) (a) of this Article. According to the submission; absence of such a law by Parliament no order of detention can authorise detention of any person for a perioo longer than three months and at the expiry· of three months all persons detained under the Act must be released. We are unable to accept this construction of cl. (7) of Art. 22. It is noteworthy that Shri Chatterji, learned counsel for the respondents, expressly conceded before us that Art. 22(7) is only an enabling or a permissive provision and it does not impose a mandatory obligation on the Parliament to make a law pres cribing the circumstances under which a person may be detained for more than three months as stated therein. But according to him sub-cl. (b) and (c) of cl. (7) do contain a mandate to the Parliament which is obligatory. (7) of Article on its plain reading merely authorises or enables In our view, cl. (l) [19S8l S.C.R. 460. <t40 SUPREME COURT REPORTS [1972] 2 S.C.R. A c . clauses (b) and (c) though it retains Parliament to make a law prescribing, ( i) the Circumstances under which a person may be detained for a period longer than three months, (ii) the maximum period for which a person may in any class or classes of cases be detained under any law provid- ing for preventive detention and (iii) the procedure to be follow- ed by the Advisory Board in an enquiry under cl. ( 4 )(a) of this . Article. The respondents' contention that "may" in the opening B part of this Article must be read as "shall" in respect of sub- its normal permissive character in so far as cl. (a) is concerned, in the absence of special compelling reasons can be supported neitl.er on principle nor by precedent ofwhich we are aware. On the other hand this Court has in S. Krishnan v. State of Madras( 1 ), agreeing with the observations of Kania C.J. in Gopalan v. State of Madras(') held sub-cl. (b) of cl. (7) to be permissive. This opinion is not only binding on us but we ar~ also in respectful agreement with it. Ap_art from the exclusive power of the Parliament to make laws in respect of "preventive detention for reasons connected with defence, foreign affairs or security of India; persons subject to such detention" (vide Art. 246(1) and Entry 9 List I, Seventh Schedule), Parliament and State Legislatures have both concur rent powers to make Jaws in respect of "preventive detention for reasons connected with the security of a State, the maintenance -0f public order, or the maintenance of supplies and services essen- tial to the community; persons subject to such de•ention" ( vide Art. 246(2) and Entry 3 in List III of Seventh Schedule). A Jaw made by Parliament in respect of preventive detention falling under Entry 3 of List III has to prevail over a State law on the subject to the extent to which it is repugnant to the State unless tl!e State law is covered by Art. 254(2). Parliament, however, is not debarred by cl. (2), as is clear from the Provi~o. from enacting a Jaw wi'h re~pect to preven•ive detention enu merated in Entry 3 of List III which may have the effec• of add ing to, amending, varying or repealing such Sta•e law. The State Legislature has thus plenary power to make a law providing for preventive detention within the limitation~ impqsed by the Con stitution just noticed. The power of the State Legislatures under Art. 246 with respect to preventive de'ention enumerated in En try 3 of List III is co-extensive with that of Parliament with res pect to such preventive detention and it must necessarilv extend to all incidental matters connected with preventive d~tention as contemplated by this entry, subject only to the condition that it does not come into conflict with a law made by Parliament with respect to the same matter. There is no provision of the Consti tution to which our attention has been drawn nor has anv princi ple of law or precedent been brought to our notice, which would D G H E F (I) [1951] S.C.R. 621 at 639. (2) [1950] S.C.R. 88. WEST BENGAL v. ASHOK DEY (Dua, I.) 44 1 justify a limitation on the power of the State Legislature, as sug gested by the responcll:nt, to make a valid law providing for de tention under Art. 22( 4) for a period beyond three months on the ground of absence of a law made by Parliament permitting detention for such period. Had the Constitution intended such a result it would certainly have made an express provision to that effect. Since Art. 22 covers the subject of preventive detention both under the law made by Parliament and that made by State Legislatures, if State Legislatures were intended by the Constitu tion to function under a limitation in respect of the period df detention one would have expected to find such a limitation ex pressly stated in this Article. But as we read cl. (7) of Art. 22 it merely invests the Parliament with an overriding power enabl- . i·ng it, if the circumstances so require, to make a law, provid_ing for preventive detention prescribing the circumstances under which a person may be detained for a period longer than three months without obtaining the opin'on of an Advisory Board and, also, prescribing the maximum period for which any person may be detained under any such law and fur'.her prescribing the pro It does not prohi cedure to be followed by an Advisory Board. bit the State Legislature from mak ng a law either providing for preventive detention for a longer period than three months when there is a provision for securing the opinion of an Advisory Board or prescribing procedure to be followed by such Advisory Board. Such a power with the State Leg'slature. hedged in by &ffective safeguards as it is, appears to us to be necessary 1<1 en able it to deal with emergent situations necessitating enactments with respect to preventive detention for safegu<irding the security cf the State against violent activities secretly organised by anti social and subversive elements with the intention of producing chaos. Security of a State, maintenance of public order and of supplies and services essential to the communi'y demand effec'ive safeguards in the larger interest of sus'enance of peaceful demo- cratic way of life. Article 22, therefore, must be construed on its plain language consistently with the basic requirement of pre venting anti-social subversive elemen's from imperilling the secu rity of States or the maintenance of public order or of essential supplies and services therein, On behalf of the respondents some stress was laid on the dis in Pooranlal ~enting opinion of Sarkar J., (as he then was) Lakhan Pal's case('). The majority view is, that case however, not onty binding on us but we are in respectful agree ment with that view. B c D E F G Shri A. P. Chatterjee also appearing {or respondents addressed elaborate arguments in support of the submission that, after the decision in R. C. Cooper v. Ullion of India(') the view (I) [1958] S.C.R. 460 (2) [t970] 3·s.C.R. 530. ·'42 SUPREME COURT REPORTS [l 972) 2 S.C.R. taken in Gopalan's case (supra), that Art. 22 is exhaustive on the subject o~ preve~tive detention and Art. 19 ( 1) ~ d) is wholly out of the picture, 1s no longer good law. On this premise he attempted to develop his attack on the reasonableness of the res trictions imposed on the fundamental right of a person detained under the Act, to move freely throughout the territory of India. Accordin~ to his submission the restrictions imposed on the per sons. det~med under the Act are not in the interest of the general public with the result that the Act must he struck down as viola tive of Art. 19(l)(d). On behalf of the appellants this argu ment was countered on the ground that Cooper's case (supra) ~as strictly confined only to the right of property and that the nght to personal freedom was not directly involved. In the alter ~ative, according to the learned Attorney General, the restrictions 1~posed on ~ person who is detain:<! ~!th a view to preventing hlffi from actmg_ m any manner p~e1ud1c1al to the security of the State or the mamtenance of p1;1bhc order, as the linpugned Act purports to do, cannot be considered not to be in the interest of the general public. · A • c In our opinion, assuming that Art. 19(l)(d) of the Consti tution is attracted to the case of preventive detention,. restrictions imposed by the Act on the fundamental rights of a citizen, who has been detained under the Act, to move freely throughout the territory of India, with a view to preventing him from acting in any manner prejudicial to the security of the State of West Bengal or maintenance of public order, are clearly in the interest of the gerieral public. The Act, it has to be borne in mind, was brought on the statute book by the President because of a feeling of "in creasing anxiety over the continuing violent activities in West Bengal of the 'Naxalites', other similar extremist groups and anti• social elements operating with them." ( vide Reasons for the en actment). The existing laws, as "Reasons for enactment" also expressly point out, were "found to he inadequate for dealing with the situation" and it was considered "necessary to vest the State administration with powers to ·detain persons in order to prevent them from indulging in violent activities". To complete historical hackground, it may, at this stage, be pointed out, that oil March 19, 1970 a proclamation had been issued by the Presi dent i;nder Art. 356 of the Constitution from which it is clear that he was satisfied that a situation had arisen in which the Govern ment of that State could not be carried on in accordance with the provisions of the Constitution and the President assumed to him Self all the functions of the Government of that State. Pursuant to that proclamation on April 29, 1970 the Parliament passed the West Bengal State Legislature (Delegation of Powers) Act. 17 of J 970 whereby the power of the Legislature of the State of West Bengal to make laws was conferred on the President. This F H A B D E F WEST DENGAL v. ASHOK DEY (D ua, J.) 443 thi s Act It is also noteworthy that before CIJ.acting wo uld clearly show th at the situ ation in th e Slate o( West ncncral It is of co ur~;e unde was not normal when the /\cl was enact ed. niable thJt i11 co nsid ering statu tes lil·c th e ona bdorc us this Court ought to shov; the greatest concern and solicitud e in upholding and safeguard in g ·the fundamental right o( Jibcrty of the citizen. But as against that, we mu st not forget th e hi stor ic<.il background in \\ hich the necessity for enactin g the Act WclS fe lt by the Presi dent. Committee constituted under the proviso to s. 3 (2) of Act 17 of 1970 was al so duly consulted. Keeping jn view the times we are Jiving in particularly the present situation in the State of West Bengal , where lawlessn~ss and sabotage has sin ce been rampant to an extent hitherto unknown , it seems to us that the restrictions on the citizens freedon1, as embodied in Art. 19 ( 1) ( d) of the Constitution, placed by the Act, must be. held be eminently in the interest of the general public. This Court can and should take judicial notice of the historic'1 l events which led to the President's rule. Those events, in our view, demonstrate the necessity in the interst of the general public bring on the statute book the provisions of the Act. The general argument challenging the vires of the Act is thus wholly without substance. Ieng a Shri A. P. Chatteriee next direC'ted his attack to the validity of the various clauses of sub-s. (2) of s. 3 of the Act. According to the submission these clauses arbitrarily extei1d the scope of the expression "acting in any manner prejudicial to the security of a State or the maintenance of public order~" Let us turn to s. 3 to see how far the respondents' attack substantiated. This section reads : - "3 ( 1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the secu rity of the State or the maintenance of public order, it is necessary so to do, make an order directing such person be detained. ( 2) For the purposes of expression 'acting in any manner prejudicial security of the State or orderl means- the maintenance of public sub-section ( l ) , ( a) using, or instigating any person by words, eith.er spoken or written or by signs or by visible representations or otherwise, to use, any lethal weapon- (i) to promote or propagate any cause or ideology, the promotion or propagation of 16-LSOO Sup Cl /72 Scanned by CamScanner G H SUPREME COURT REPORTS [1972] 2 S.C.R. which affects, or is likely to affect, adver sely the security of the State. or the main- tenance of public order; or (ii) to overthrow or to overawe the Govern- ment established by law in India. A Explanation.-In this clause, 'lethal weapon' includes fire-arms, B explosive or corrosive substances, swords, spears, daggers, bows and arrows; or (b) committing mischief, within the meaning of section 425 of the Indian Penal Code, by I fire or any explosive. substance on any property of Government or any local\ authority or any cor- poration owned or controlled by Government or any University or other educational institu- tion or on anjl public building, where the com- mission of such mischief disturbs, or is likely to disturb, public order; or ( c) causing insult to the Indian National Flag or to any other object of public veneration, .whether by multilating, damging, burning, defiling, destroy- ing or otherwise, or instigating a'.ly person do so. C D Explanation.-In this clause, 'object of public veneration' cludes any portrait or statute of an eminent Indian, installed in a E public place as a mark of respect to him or to his meq1ory; or ..) (d) committing, or instigating any person to com mit, any offence, punishable with death or im prisonment for life or imprisonment for a term extending to seven years or more or any offence the Explosive under the Arms Act, 1959 or Substances Act, 1908, where the commission of such offence distur.bs, or is likely to disturb, public order; or ( e) in the case of a person referred to in clauses (a) to ( f) of section ll 0 of the Code of Criminal Procedure, 1898, any offence punishable with imprisonment where the com- mission of such offence disturbs, or is likely to disturb, public order. committing (3) Any of the following officers, namely : (a) District Magistrates, (b) Additional District Magistrates specially em powered in this behalf by the State Government, F G H A B c D E F G H ·- WEST BENGAL v. ASHOK DEY (Dua, J.) 445 ( c) in the Presidency-town of Calcutta, the Com missioner of Police, Calcutta, may, if satisfied as provided in sub-section ( 1), exercise the power conferred by the said sub-section. ( 4) When any order is made under this section by an oflkcr specified in sub-section ( 3), he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a, bearing on the matter and no such order shall remain in force for more than t~elve days after 1the making thereof unless, in the mean time, it has been approved by the State Gov ernment. ( 5) When any order is made or approved by the State Government under this section, the State Govern ment shall, as soon as may be, report the fact Central Government together with the grounds on which the order has been made and such other parti culars as, in the opinion of the State Government have a bearing on the necessity for the order."· (e) is prima The challenge to cl. (a), (b), (d) and the acts unfounded for there ·can be no two opinions about covered by these clauses being reasonably likt:!y to be prejudici!ll to the maintenance of public order. That, disturbance of public order in a State may in turn prejudicially affect its security, is also undeniable. Fairly close and rational nexus between clauses and the maintenance of public order and security of the State of West Bengal is writ large on the face of these clauses. In view of the clear language of these clauses we consider wholly unnecessary to deal with them at greater length. In regard to cl. ( c) Shri Chatterjee· laid emphasis on the fact that causing insult to the Indian National Flag or to any other object of public veneration, as clarified in the. explanation, need not always result in an act which may be considered prejudicial to the security of the State or the maintenance of public order. Insulting the object of public veneration in privacy without the act causing insult being noticed by anyone who holds them in veneration, it was argued, could have no rational nexus with disturbance of public order or security of a State. The argu ment stated in the abstract is attractive. But when one closely examines the circumstances in whict the Act was passed, mischief intended to be remedied by its enactment, and the purpose and obiect of enacting it, cl. (c) of sub-s. (2), considered in the background of sub-s. ( 1 ) of s. 3 must, in our opinion, be oonsttu- 446 SUPREME COURT REPORTS (1972] 2 S.C.R. ed to mean causing insult to the Indian National Flag or to any other object of public veneration in such a situation as reasonably exposes the act, causing such insult, to the view of those, who hold these objects in veneration or to the public view, and it would not cover cases where the Indian National Flag·or other object of public veneration is mutilated, damaged, burnt, defiled or destroy ed, completely unseen or when incapable of being seen, by anyone whose feelings are likely to be hurt thereby. The act ca11sing insult referred to- in cl. ( c) must be such as woul~ be capable of arousing the feelings of indignation in someone and that can only be the case when insult is caused in the circumstances just explain ed. So construed, cl. ( c) would, in our view, be. clearly within the expression 'acting in any manner prejudicial to the maintenano~ of public order.'. It would perhaps have been better if this aspect had been clarified in the Act, but legitimately imputing law-maker :)Je intention to enact a valid provision of law within the constitutional limitations designed effectively to achieve object and purpose, the construction of cl. ( c), in our view, ·must be restricted as just .explained, such restricted construction bcin' admissible on the statutory language and the l~gislative scheme. On this construction the challenge must fail. Before concluding we may mention that originally this appeal was heard by a Bench of five Judges, including our learned brother late Mr. Justice S.C. Roy and before his sudden tragic death he had expressed his agreement with our decision and approved the draft judgment. Unfortunately, before the judgment could be announced the cruel hand of death snatched him away from our midst. This appeal was, however, again formally placed for re hearing this morning before us. The result is that these appeals must be allowed and the judg ment of the High Court set aside. As the counsel for the respon dents >late that there are some other points on the merits which require determination, the writ peti'tions will now be heard and disposed of by the High Courr on those points. A B c D E F G.C. Appeals allowed.