BHUT NATH METE v. THE ST ATE OF WEST BENGAL

Before getting to grips with the contentions we may indicate the constitutional dimensions of the freedom of which the judges are, part, sentinels on the qui vive. Civil liberty, a constitutional guarantee, is a strange bed-fellow with detention without trial, a British bequest. Begun from the days of the East India Company, our freedom lighters, including the Father of the Nation, have endured its repressive imppct and s.o when the sombre, colonial story came to a close, our founding fathers enshrined freedom of the person as a fundamental right. But as realists they know that we became free amidst blood bath and chaos and the environs of belligerency. The delicate balance between secu rity and liberty had to be kept, conscious the contemporary world, war is to peace near allied and 'this pertition do their bounds divide' and the defenses of a nation can be destroyed and the morale of its people broken not only by external aggression but also by internal disruption. The sensitive underside of the nation can be wounded by those who break up public order, breach State security, blow up essen· tial supplies and services; and so, as an unhappy necessity, preventive detention. apart from punitive prison term, was recognised and provid ed for. Being committed to the rule of law, primary article of faith, the framers of the Constitution mistrusted uncanalised power in Executive and wrote into the paramount law provisions regulating pre ventive detention and proclamations of emergencies. After all, Lord Acton's dictum that absolute power corrupts absolutely was for them no new knowledge, and Lord Atkin 's great words in Li>'ersidge v. Anderson('1) that amid the clash of arms the laws are not silent, that that, in (I) [1942] A. C. 205 A B c D E F G H 8 B. N. METE v. WEST BENGAL (Krishna Iyer, J.) 319 A n c D they may be changed, but they speak same language in war and peace, reverberated in their ears. Therefore, where freedom is in pent and justice is threatened the citizen shall receive the fullest protection from the Court within the four corners of art. 22, benignantly stretched, and the safeguards of the A.ct liberally interpreted-within legitimate limits. The worth of the human person is a cherished value carefully watched over by the Court. Such is the judicial perspective in the application of art. 22 to the MISA, which it contains, controls and animates. Indeed, this Court, by a series of creative pronouncements has built into vast powers vested in the Administration by the MISA and its pre d·ocessors legal bulwarks, breakraters and blinkers which have largely humanised the harsh authority over individual liberty otherwise exer cisable arbitrarily by- executive fiat. In this case, we arc conccrneU \vith a limited canvass, for, in a sense, the court's control through rc vi·ew is peripheral. processual and yet crucial. The area of judicial 'cmbudsmania' which obtrudes into our attention in the present case relates to the observance of natural justice to the partial but compcl sory extent the law of the Constitution and the law under the Constitu tion, obligate. There is a limited 'judicialisation' of administrative acts that art. 22 insists on, which is express, explicit and mandatory and admits of no exceptions. Article 22(5) is principled and pragmatic, flexible but firm and enforces the right to be heard without over-loading the administrative process with judicial trappings. It reads : E F G H ''(5) When any person is detained in pursuance of an order made under any law providing for preventive deten tion, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." - The fundamental constitutional mandates are that the authority (a) shall communicate to the detainee 'the grounds on w/1ich the order bas been made'-nothing less than all the material grounds which operate to create that subjective satisfaction in the authority which spells su• pension of the citizen's liberty-and (b) shall afford him the ear/its! opportunity of making a representation against the order-no avoid able delay, no shortfall in the material communicated shall disable the prisoner making an early, yet comprehensive say on every particular or fact which has influenced the detainer or other body to order, approve or advice the deprivation of an individual's freedom. Such is the fair ness and justice 'untouchably' entrenched in art. 22( 5) when adminis trative action preventively drowns a sacred human right in the name or public good and organised society. The power and its limits co-exist in constitutional amity and the MJSA has effectuated this great policy ins. 3(1) and (3) read with ss. 5(1) 10 and ll(i) and (ii). Tho humanist restraint so woven into the law against executive extravagance or indifference must be strictly applied since casual and careless and 320 SUPREME COURT REPORTS ( 1974 J 3 S.C.R. uninformed disposal of other's freedom is to break faith with the cons titutional· tryst. The admonition of Patanjali Sastri, C.J., is inspira tional : A "Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against· the improper exercise of the power must be 1ealously watched and enforced by the Court. In this case, the petitioner has the right, under article 12(5), as interpret ed by this Court by a majority, to be furnished with particu lars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him. We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause ( 6) of article 22."( 1). The strict construction of the statute setting tho court's face sternly against encroachment on individual liberty, keeping the delicate balance between social security and citizens' is perfectly warranted by this Court's observation in Kishori Mohan Bera v. State of West Bengal(') ; freedom, "The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of th0 land and to trial by courts. Obviously, such a power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only. There can, therefore, be no doubt that such a law has to be strictly construed. Equally, also, the power conferred by such a law has to be exercised with extreme care and scrupu lously witliin the bounds laid down in such a law." In a sense this approach is only an application of the insist~nce of fairness when power is exercised to effect other's rights, particularly the most sensitive· of all rights-personal freedom. Natural justice is the index of fairness, although as Sachs, L.J., indicated in In re-Pargemon Press Ltd.(•) : "In the application of the concept of fair play must be real flexibility so that very different situations may be met with out producing procedures unsuitable to the object A. K. Krapak v. Union of India(') this Court qualified: liand". "The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duly of discharging their functions in a fair and just manner. The requirement of acting Judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously." After all, one conld never be too just or too fair when dealing with civil liberty. (!) Dr. Ram Krishan Bhardwaj .v State of Delhi (1953] S. C.R. 708. (2) A.!. R. 1972 S. C. 1749. (3) [1971] I Ch. D. 368. (4) A. I. R. 1970 SC 150, B c 0 E F G H A B c D E G H B. N. METE v. WEST BENGAL (Krishna Iyer, J.) 321 With these background observations, the statutory 'musts' of the MISA may now be delineated. We are concerned, as earlier stated, only with some aspects of the preventive detention jurisprudence, in the present case, and we con fine ourselves to them. The District Magistrate should be bona fide satisfiod about the prejudicial activities of the detainee. Absence of bonafides in this context does not mean proof of malice, for an order can be malafide although the officer is innocent. The important point is that the satisfaction of the public functionary, though subjective, must be real and rational, not colourable, fanciful, mechanical or unrelated to the objects enilmerated in s. 3 (I) of the Act. Viscount Haldane, L.C., in Shearer v. Shields(') drew the line neatly thus : "Between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular sys· tern ot jurisprudence. A person who infiicts an injury upon another person in contravention of the law is not allowed. to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignoraniJy, and that sense innocently." The attack on the order of detention has been delivered on the following grounds : (I) that the grounds are ambivalent, vague and void; (2) that the particulars suffer from insufficient communication thus crippling the constitutional right of representation; (3) that the detention is ma/a fide having been made with ulterior and extraneous purpose of making up for the discharge of the petitioner in the criminal cases; (4) that a few acts of theft, not proximate in time to the deten tion order after judicial proceedings had failed, have no rational rela tion to potential prejudicial activities to stanch which it professes to have been made; (5) that the materials impelling the detention order and supplied to tbe Government and the Board add substantially to tlie facts disclosed tq the detenu thus hitting him below the belt and deny ing him the plenary opportunity to answer the uncommunicated but damaging charges with a futuristic import; (6) that the MISA violates art. 22(5) and is unconstitutional; aI?J (7) that the detention has been arbitrary and may continue indefinitely if the Proclamation of Emer gency becomes a constant fact of constitutional life and must therefore be regarded as unconstitutional. The last two were urged in another habeas corpus application heard shortly before this one and arc dealt with in a way here also. We have to reject summarily the last submission as falling outside the orbit of judicial control and wandering into the para-political sec It was argued that there was no ffal emergency and yet the Pro tor. clamation remained unretracted with consequential peril to fundamen In our view, this is a political, not justiciable issue and the tal rights. appeal should be to the· polls and not to the courts. The traditional (I) [1914] A. C. 808. 322 SUPREME COURT REPORTS [ 1974 l 3 S.C.R. that political view, sanctified largely by some American decisions, questions fall outside the area of judicial review, is not a constitutional taboo but a pragmatic response of the court to the reality of its inade quacy to decide such issues and to the scheme of the constitution which has assigned to each branch of government in the larger sense a certain jurisdiction. Of course, when a problem-which is essentially and basically constitutional-although dressed up as a political question,,is appropriately rais<>J before court, it is within the power of the judges to adjudicate. The rule is one of self-restraint and of subject-matter, practical sense and respect for other branches of government like the Legislature and the Executive. Even so, we see no force in the plea. True, an emergency puts a broad, blanket blindfolding of the. seven liberties of art. 19 and its baseless prolongation may devalue demo cracy. That is a political matter do hors our ken, for the validity of the proclamation turns on the subjective satisfaction of the President that a grave emergency, of the kind mentioned in Part XVIII, or its In Rex v. Govemor of Wornwood Scrubbs imminent danger, exists. Prison(') the Earl of Reading observed, on a similar contention: " ... even if it is material to consider whether the mili tary emergency has come to an elld, it is not a matter which this Court can consider; whether the emergency continues to exist or not it is for the executive alone to determine ..... " The argument of abuse of power was urged in England but repelled. In The King v. Halliday(') Lord Dunnedin met it thus : "That is true. But the fault, if fault there be, lies in the fact that the British Constitution has entrusted to Houses of Parliament, subject to the assent of the Killg, an absolute power untrammelled by any written instrument obe some judicial body. dience to which may be compelled by The danger of abuse in theoretically present : practically, as things exist, it is in my opinion absent." A B c D E And Lord Wright in Liversidge v. Anderson(') added effect point in these words : F "The safeguard of British liberty is in the good SCllS• of the people and in the system of representative and responsible If extraordinary powers government which has evolved. are here given, they are given because the emergency is extra ordinary and are limited to the period of the emergency." Of course, the British have no written constitution but the argument rcn1ains. In the recent ruling of the Privy Council in Hinakan v. Government of Malaysia(<), the vires of a proclamation of emergency was put in issue as unconstitutional and a fraud on power. The Judicial Com mittee made short shrift of the submission in these words : G H (I) [1920] 2 K. B. 305. (.1) [1942] A. C. 206. (2) [1917] A. C. 260, 270. (4) [1970) A. C. 379; 390; 391. A B c D E F G H B. N. METE v. WEST BENGAL (Krishna Iyer,!.) 323 "Although an "emergency" to be within the article must be not only grave but such as to threaten the security or eco nomic life of the Federation or any part of it, the natural meaning of the word itself is capable of covering a very wide range of situations and occurrences, epidemics and the col lapse of civil government." "'It is not for their Lordships to criticise or comment upon the wisdom or expediency of the steps taken by Government of Malaysia in dealing with the constitutional situation which had occurred in Sarawak, or to inquire whe ther that situation could itself have been avoided by a diffe rent approach." "These were essentially matters · to be determined according to the judgment of the responsible Ministers in the lights of their knowledge and experience. And although the Indonesian Confrontation had then ceased, it was open to the Federal Government, and indeed its duty, to consider possible consequences of a period of unstable government in a State that, not so long before, had been facing the sions of Confrontation and the subversive activities associated with it. That the appellant regarded the foderal Govern ment's actions as aimed at himself is obvious and perhaps natural; but he has failed to satisfy the Board that the steps taken by the Government, including the proclamation and the impugned Act, were in fraudum legis or otherwise un authorised by the relevant legislation." Justiciability was left open is that case but the limits of judicial pro priety were ciearly drawn. The U.S. Supreme Court has frowned on forensic examination of subjects of politics and policy which belong to the other branches of government although in Baker v. Carr(' )-a landmark ruling -and Gray v. Senders( 2 ), constitutional questions with considerable political consequences were boldly handled. Even the Viet Nam. war came for judicial consideration. But this large and sensitive deba.te about t.he court's power hardly arises here because basically it is a matter least fit for adjudication by judicial methods and the effective end of materials, and clearly the onus of establishing the subjective emergency and absence of any grounds whatever for satisfaction of the·President, heavy as it is, has hardly been discharged. Academi.c exercises in constitutional law are not for courts but jurists and we decline to hold the continuance of eme~gency void. Nor are we impressed with the argument thats. 3(3) ands. 10 vio late art. 22(5) of the Constitution. The vice, according to counsel, is that the detaining authority forwards to Government not merely the grounds of detention but "such other particulars as in his opinion have (I) 369 u. s. 186 (1962) (Z) 372 U. S. 363 (1963) 324 SUPREME COURT REPORTS [ 1974 l 3 S.C.R. If so, the effective opportunity a bearing on the matter"·-which matter may be beyond what is com to make municated to the detenu. representations against such extra material is absent and the right under art. 22(5) is stultified. No doubt, the soul of art. 22 is the fair chance to be heard on all parti1lars relied on to condemn the detenu to pre ventive confinement.. B t s. 3(3) does not-eannot-transcend this trammel and never state that particulars conveyed to Government and eventually to the Board may be behind the back of the detenu. Read ing the provisions literally and as owing allegiance to art. 22(5), it is right to say that all particulars transmitted under s. 3(3) beyond grounds of detention must, if they ha\le a bearing on the determination to detain, in no way detract from the effectiveness of the detenu 's right of representation about them. The guarantee of art. 22 ( 5) colours the construction of s. 3. So viewed, there is no inconsistency with or erosion of the 'opportunity of making a representation against order'. Whether, in this case, any unconstitutional deficiency in com munication of such material has occurred will be tested later. Is there any substance in the grievance that order is ma/a fide, made after and on account of the discharge of the relative criminal cases ? The detention is not punitive but preventive and the District Magistrate's order recites to that effect. In this case, the petitioner's representation mentions the cases challaned and the discharge of the accused by the court in regard to the very incidents pressed into service to found the detention order. The long interval between the incidents and the orders lends probability to the petitioner's plea that there were cases which ended in his favour, particularly because no denial nor explanation is forthcoming on these aspects in the return. The ques tion is whether for the reason that criminal prosecutions have failed the detention order is bad. We think not, and there is authority for it. jq Subrati v. State of West Bengal(') this Court rejected ari identical argument, the purposes of preventive detention being different conviction and punishment and subjective satisfaction being enough in the former while proof beyond reasonable doubt being necessary in the "The Act creates in the authorities concerned a new jurisdic latter. tion to make orders for preventive detention on their subjective satis faction on grounds of suspicion of commission in future of acts preju dicial to the community in general. This jurisdiction is different from that of judicial trial in courts for offences and of judicial orders for pre vention of offences. Even unsuccessful judicial trial or proceeding would, therefore, not operate as a bar to a detention order, or render In M. S. Khan v. it male fide. The matter is also not res integra." C. C. Bose( 2 ) a similar view was expressed and now a host of deci sions had made the legal position unchallengeable. A note of caution, however, needs to be struck since absolute scrupulousness iS expected of authorities exercising this exceptional power. This is not a power to put behind bars anyone you regard as dangerous or rowdyish or irrepressible or difficult of being got rid of by proof of guilt in court. This is an instrument for protecting the community against specially (t) [t973J J sec 2so. (2) A. l. R. 1972 S. C. 1670. A B c D E F G H A II c D E F G H B. N. METE v. WEST BENGAL (Krish'!a Iyer,/.) 325 If ~xtra­ injurious types of anti-social activity statutorily enunciated. neous motives adulterate the use of power, the court must nullify 1t. Observations in Rameshwar Lal v. Stale of Bihar(') serve as a warning: "The appellant was tried for .the offence and acquitted as far back as February 1967. This ground discloses care lessness which is extremely disturbing. That the detain ing authority does not know that the appellant was tried and the pendency of acquitted months before, and considers the case against him as one of the grounds of detention shows that due. care and attention is not being paid to such serious If the appellant was tried matters as detention without trial. and acquitted, Government was required to study the judg ment of acquittal to discover whether all these allegations had any basis in fact or not. One can understand the use of the case lf the acquittal was technical but not when the case was held to be false." After all, however well-meaning Government may be, detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code. The immune expedient of throwing into a prison cell one whom the ordinary law would take of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse. To detain a person after a court has held the charge false is to expose oneself to the'Criticism of absence of due care and of rational material for subjective satisfaction. After all, the res· ponsible officer, aware of the value of civil liborty even for undesirable persons, must make a credible prediction of the species of prejudicial activity in s. 3 ( ll before shutting up a person. It may perilously hover around illegality, if a single act of theft or threat, for which a prosecu tion was launched but failed, is seized upon after, say, a year or so, for detaining the accused out of pique. The potential executive tendency to shy at courts for prosecution of ordinary offences and to rely ~ene­ rously on is a danger to the democratic way of life. The large number of habeas corpus petitions and the more or less stereotyped grounds of detention and inaction by way of prosecution, induce us to voice this deeper concern. Moreover, a criminal should not get away with it as an uncon victed detenu if the rule of law is a live force. the easier strategy of subjective satisfaction The ritualistic recital of one or two thefts followed by incantatory statutory phrases in the order, unsupported even by the affidavit of th~ detaining authority may in some circumstances lead to an inference that the order is in fraudum legi~. In the pre<ent case such an argument has been made but we are not satisfied that there was foul exercise of power merely because the courts have discharged the accused or a competent affidavit has not been filed. True, we should have expected an 3ffidavit from the detaining authority but even that is felt too inconvenient and a Deouty Secreta~y who merely peruses the re cords and swears an affidavit in every case is the poor proxy. Why is (I) [1968] 2 S. C.R. 505; 511. 326 SUPREME COURT REPORTS [ 1974 J 3 S.C.R. an affidivit than needed at all? The fact of subjective satisfaction, so lemnly reached considering relevant and excluding irrelevant facts, suffi cient in degree of danger and certainty to warrant pre-emptive casting into prison, is best made out by the detaining District Magistrate, not one who professionally reads records and makes out a precis in the form of an affidavit. The purpose is missed, goin!l by the seriousness of the matter, the proof is deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes respon sibility for the action, if action has to be taken against the detainer later for misuse. We are aware that in the exigencies of administration, an officer may be held up far away, engrossed in other important work, thus being unavailable to swear an affidavit. The next best would then be the oath of one in the Secretariat who officially is cognisant of or has participated in th.e process of aoproval hy Govemn1-ent-not one who, long later, reads old files and gives its gist to the court. Mechanical means are easy but not legitimate. We emphasize this infirmity because routine summaries of files, marked as affidavits, appear in the returns to rules nisi, showing scant courtesy to the constitutional gravity of dep rivation of civil liberty. In some cases, where a valid reas~n for the District Magistrate's inability to swear affidavits directly has been fur nished, this Court has accepted the concerned Deputy Secretary's affi davit. This should, however, b' the exception, not the rule. We may . refer in this context to the rulings in Raniit Dam/v. State of West Ben gal, ('), J. N. Roy v. State of West Bengal,( 2 ) and Shaik Hanif and others v. State of West Bengal.(') We need not proceed further with this asp·~ct, in the ultimate view we take on this writ petition. We are not oersuaded that a speaking order should be passed by Government or bv the Arlvisorv Board while approving er advising continuance of detention although a brief expression of the principal reasons is desirable. The communication of grounds, the right to make reoresentation and the consideration thereof by the Advisory body made up of men with judicial experience subject-matter being the deprivation of freedom, clearly implies a quasi-judicial approach. Indeed, where citizen's rights are affected by an autho· ritv. the auestion is not so mueh the mould into which the nature of the act should be fitted but the nature of the consequence which ob ligates impartiality, judicial evaluation and reasoned conclusion on facts. a' distinruished from oolicv formulation and zealous imple mentation regardless of two sides and weighing of evidence. The bare bones of natural justice in this context need not be clothed with the amole flesh of dotailed hearing and elaborate reasoning. It must be self-evident from the order that the substance of the charge and the essential answer in the impartially couslden•d. We do not think that a speaking order like a regular judicial performance is either necessary or feasible. Article 22(5) representation have been A.!. R. (1972) SC 1753. (2) A. I. R. (1972) SC 2t43. (3) Writ Petition> Nos. 1679 etc; jud~ment on Feburary 1, 1974. A B c D E F G H A B c D E F • B. N. METE v. WEST BENGAL (Krishna Iyer,!.) 327 also does not compel us to reach a different conolusioa. Alter all, we must remember that a harmonious reconciliation between claims of security o[ the nation and the liberty of the citizen through the process of effective representation before depriv~tion and fair consideration by the Executive and the Advisory Board are the necessary components of p.a,tural justice. Not mere. !n times of emergencv, security Of the State and essential supplies and ~ervices importance and dcn1Dnd quicker of the co1nmunitv assume great action. tho right of the citizen and cannot for, get the wotlds of Justice Jackso~1 in Knufl v. S/111,11ghnassy : ( ') .At the same time. we ·cannot underrate "Security is like liberty in that many arc the crimes committed in its name. Tfie menace to the security o[ this countrv. be it j!feat as it may, from this girl's admis sion is as nothing compared to the menace to free institu tions inherent in procedures on .this pattern .... Ihe plan that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome and the corrupt to play role ·or informer ur1':1etected and uncorrected." ::i.nd the particulars is the obligation Whtt.t has to be underscored to nlak~ a f~t~r 'lo communication of the J?rounds suffici~nt enable the detainee to explain his innocence. Faceless infortncr.s is absent, flourish \vhere confrontation by cross-examination arc not uncon1mon orders \\'ith ihc inscrutable face of a sphinx where subjective satisfaction is sufficient. All the more reason why there should be a meaninµ:fullV- co1nprehensivc furnishing of essen tial oarticulars so that the exe~Utive a~cncics may be rigorously held to the standards implkld by the courts in art. 22(5). Otherwise, in th" language of Justice Frankfurther. "he that take> the procedural sword shall perish with that sword." Administrative absolution incongruous with our constitutional scheme. If control of liberty in an emergency-Barbed-wire entanglements of freedom by the execu tivc--is neccssarv. control of control iq in son1c tnctisurc healthy hccause nower in the miniens of govcrnn1cnt can be 'of an cncroach in2 nature;. Reference \Vas ffiade at ihis context to Allen's "Law an<l Orders", an'J Markose's "Judici"l Control of Adn1;nistrative Action·· the bar in G H In the petitioner's case the gravamen of his grievance is that some irrelevant and uncommunicated char.ees have influenced the autho· , rity, vitiating the order. We would not view with unconcern viola~ tion on this score, if made out. It is common ground that the police have sent to the District Magistrate (who in turn has forwarded to states the Government and the Board) a blistering bio-data. that la) he is ooor and illiterate. (bl has associates in notorious wagon breakers and anti-sccial element. ( c) has d"vclopcd spirit of lnwlcssness and aptitude for anti-social activities. (d) many of the It (1) 338 u. s. 537. 328 SUPREl\.lE COURT REPORTS [ 1974 J 3 S.C.R. reported and unreported .c_ascs of recent anti-social and· criminal activities exist to his credit besides the instances ~on1municatcd to the detenu. Fairly considered, this report has . been present to minds of the authorities but withheld from the affected party. Poverty ·and illiteracy are outraJ(eouslv irrek:vant to s. 3. l'he spirit of law lessness and aptitude for anti-social activities. are neither here nor there >'is-a-ris s. 3. instances repoz:ted 'Other thou2h relovant are kept ba-"'k from the petitioner. If such be the case. s. 3 ( 3). read with art. 22 ( 5), stands contravened and the right to represent rendered barren. . And yet particulars prejudicial the detenu played over the judgment of the authorities but the peti tioner never knew of such injurious information, and could not answer back. This Court in many weighty pronouncements over two decades has strcssd::I that art. 22 ( 5) vests a real, not illusoi'}' right, that com munication of facts is the corJ:i~Tstone of the right of representation and or<l~rs based on uncommunicated materials anc.I illegal. and unreported' arc unfair · Before parting with tltis case/ we wish to express our disquiet that more theft even of coppe'r wire9 unless in association with other facts may "not give rise to an inference of proclivities of mentioned ·in s.3 (1). Some proximity in time between the acts and the order. some indicatiOJ:!S of activities disrupting supplies am.I ser vices to the community and more 'trendy' behaviour warranting pre ventive measures. must be available before the extreme step of deten tion without trial is clamped down. A sober ·prognosis by the Dis trict j\1a2istra1e of. the detainee"S dangerous behaviour must be well grounded, even if impervious to judicial probe. We cannot dismiss as accidental that in this area of the Jaw. in two leading case~. t\VO judges, Bose. J ., and Bhagwatliy. J., have referred to the Bestill~ not that \ve exoress our approbation of its use. Executive care ~~nd Advisory Board's vigilance- rue the hoodul sentinals checking the misaoolication of the MISA. unwittingly to rob the people of the Republic of civil liberties. We may emphasise that to minimise processual justice to mere communication and conseauent--~representation is not to reduce that prescription _.to a rooe 0 of sand. and to make subjective satisfaction a sufficient pre-requisite to detention is ·not to reduce view to a brutum fulmen. judicial A B c D E F We hold that the detention in this case is illegal for opportunity to make effective representation and direct petitioner be set free. denial of c P. B. R. ( -.