ORIGINAL JURISDICTION : Writ Petition No. 1977 of 1973. Under Art. 32 of the Constitution of India for issue of a writ in the nature of habeas corpus. D. N. Mukherjee and M. M. Kshatriya, for the petitioner. p. K. Chatterjee and G. S. Chatterjee, for the respondents. The Judgment of the Court was delivered by KRISHNA IYER, J.-A few issues of some moment, in the context of civil liberties have been argued in this application for habeas corpus by Shri Mukherjee as amicus curiae. The facts are disquieting at least for the reason that the petitioner an aged ailing man around 74, has been under detention since 1973 and, previous to it, had been facing a criminal prosecution which ended in a discharge on the date the detention order was clamped down on him; and counsel pressed the poignant circumstance that the ultimate order of Government dated September 28, 1973 merely confirms the detention, being unlimited in duration and ’unspeaking on the terminus ad quem for the incarceration. The relevant facts may be stated before discussing the highlights ,of the arguments. The Commissioner of Police, Calcutta, passed the initial order of detention dated July 19, 1973 on the petitioner, Golam Hussain alias Gama, under S. 3(1) (a) (ii) read with sub-section (2) of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) (hereinafter referred to as ’the Act’). The grounds which induced the detaining authority to pass the order were communicated the same day. They have been set out by the State as annexure to the affidavit filed in opposition to the petition and read thus
On 8-10-72 at about 22-25 hrs., you along with
your associates Achche Lal Show of 1,
Manickotolla Bazar Lane, Satya Narayan Jaiswal
of 123/2, Acharya Prafulla in Chandra Road,
and others, all being armed with bombs, soda-
water bottles created a great disturbance of
public order on Gouri Sankar Lane in front of
premises No. 8 by hurling bombs
indiscriminately with a view to attack one
Jiban Paul of 8. Gouri Shankar Lane and his
group in retaliation to an earlier quarrel
that took place with the said Jiban Paul at 8,
Gouri Sankar Lane with your associates Satya
Narayan Jaiswal and others. The incident
terrorised the locality and threw out of gear
the normal life stream of the residents of the
said locality amounting to police orde r.
2. On 9-11-72 sometimes between 04-45 hrs.
you along with your associates Ratish Pradhan
alias Laltu of 23/lA, Abinash Kaviraj St.,
Benode Kr. Jaiswal of 34B, Gulu Ostagar Lane
and other all being armed with brickbats,
soda-water bottles, bombs poles, created a
great disturbance of public order on Gouri
Sankar Lane and Abinash Kaviraj’ Street by
hurling soda-water bottles, brickbats
indiscriminately with a view to overawe the
organisers of the Kalipuja that took place in
front of 8 Gowi Sankar Lane and thereby to
terrorise the locality. As a result the
lights of the above pujab pandals were
damaged. This was in sequel to an incident
that took place earlier at about 04-30 hrs
when your associates Benode Kumar and others
threw beer bottles at the Kalipuja pandal at
8, Gouri Sankar Lane, where some females were
then dancing, which was then protested by the
local people and the organisers of the said
puja.
And if left free and unfettered you are likely
to continue to disturb manitenance of public
order by acting in a similar manner as
aforesaid." As required by the statute, the fact of detention was communicated to the State Government which in turn reported to the Central Government. The case was placed before the Advisory Board on August 13, 1973 and when the representation of the detenu was, received it was duly considered and negatived by the State Government which thereafter made it over to the Advisory Board. After adverting to the facts, the Board advised continuance of the detention on September 21, 1973. The consequential order confirming the detention was made by the State Government on September 28, 1973 and communicated to the detenu by the middle of October, 1973. We see no statutory shortcoming in the time sequence set out above. But other grounds of attack have been levelled against the order which deserve a closer look. Shri Mukherjee urged that although two criminal cases were started in connection with the two incidents constituting the grounds for the detention, the petitioner’s name was not even mentioned in the first information reports, and he was produced before the Magistrate only on July 5, 1973, and so the order based on those accusations was too irrational to be bona fide. The Commissioner of Police who passed the detention order has stated in his affidavit that there were cases connected with ,he incidents of October 8th and November 9th, but the detenu could not be arrested until July 4, 1973. It is not denied that the petitioner’s name was not in the first information report, but he was apprehended later on the basis of evidence gathered during the investigation of the criminal case. The commissioner admits that the detenu was discharged by the, Court "as no witness dared to depose against the detenu in open court." According to him the said order of discharge was made on the prayer of the police on July 19, 1973, and thereafter the petitioner was Preventively detained. Could such an order be castigated as malafide and oblique resort to the inscrutable order of detention when the prospects in the criminal case became bleak ? This charge has been repudiated by the Commissioner on oath and we are not able to hold with the petitioner that merely because the detaining authority has chosen to pass the order on the discharge of the petitioner by the court for want of evidence, the order is bad in law. , The branch of jurisprudence bearing on prohibitory detention has been crystallised by now and it is no longer a valid contention, that because the accused has been discharged in a criminal case the ground of charge cannot be relied upon by the appropriate authority for passing an order of detention. The former relates to the punitive branch of the criminal law and relates to the past commission, the latter to the preventive branch of social defence and protects the community from future injury. Whether we like it or not, this branch of jurisprudence, as interpreted by this Court has made it futile for a detenu to urge that because the grounds of detention have been the subject matter of criminal cases which have ended in discharge, therefore, the order of detention is malafide. The basic imperative of proof beyond reasonable doubt does not apply to the ’subjective satisfaction’ component, of imprisonment for reasons of internal security. To quarrel with such a proposition is to challenge the wisdom of Parliament. Of course, we can visualise extreme cases where a court has held a criminal case to be false and a detaining Authority with that judicial pronouncement before him may not reasonably claim to be satisfied about prospective prejudicial activities based on what a court has found to be baseless. But the present case where the order of discharge is made purely for want of evidence on the score that witnesses were too afraid to depose against a desperate character cannot come under this exceptional category. Another submission, equally an exercise in futility, made before us is that there has been a long interval of nine months between the criminal incidents of October and November, 1972 and the detention order of July, 1973. Counsel hopefully relied on recent decision of this Court in Lakshman Khatik v. State of West Bengal (1) and an earlier decision in Rameshwar Shah v. District Magistrate Burdwan(2). It is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute. This credible chain is snapped if there is too long and unexplained an interval between the Offending acts and the order of detention. Such is the ratio of proximity in Lakshman Khatik(l). No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had (1) Writ Petit Judgment on 26-2-74. done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case. If the detaining authority takes the chance of conviction and, when the court verdict goes against it, falls back on its detention power to punish one whom the court would not convict, it is an abuse and virtual nullification of the judicial process. But if honestly finding a dangerous person getting away with it by overawing witnesses or concealing the commission cleverly an authority thinks on the material before him that there is likelihood of and need to interdict public disorder at his instance he may validly direct detention. The distinction is fine but real. In the present case, the acts ere serious, being bomb hurling and brick-bat throwing in public places creating. panic. The involvement of the petitioner is discovered only during the investigation of the offences. The witnesses are scared away from deposing. The Commissioner swears that in these special circumstances he did form the satisfaction requisite for ordering preventive detention, No ground exists for dismissing this statement as sham or factitious. It is one thing to say that a more subjective satisfaction is sufficient to deprive a person of a fundamental freedom. it is another to reject that satisfaction as specious and nonexistent. Parliament makes the law and is responsible for it; the court only applies it, as it must. We have, therefore, to reject the plea that because the criminal case has failed the detention must be bad. M. S. Khan v. C. C. Bose, (1) Ashim Kumar v. State of West Bengal(2), and Sahib Singh Dugal v. Union of India(3) are but three among many cases taking this view. We follow these precedents. The next serious contention of Shri Chatterjee is that an order of detention which does not specify a period is violative of s. 12 of the Act. We may reproduce the relevant provisions which are of ancient vintage, being wholly or substantially in pari materia with earlier corresponding preventive detention sections. Nor is the position of law can vassed for res integra. Section l2 and l3 of the Maintenance of Internal Security Act, 1971, as amended, read as follows :
"12(1)ln any case where the Advisory Board has
reported that there is in its opinion
sufficient cause for the detention of a
person, the appropriate Government may confirm
the detention order and continue the detention
of the person concerned for such period as it
thinks fit.
(2)
(1) A.I.R. 1972 S.C. 1670.
(2) A.I.R. 1972 S.C. 2561.
13. The maximum period for which any person
may be detained in pursuance of any detention
order which has been confirmed under section
12 shall be twelve months from the date of
detention, or until the expiry of the Defence
of India Act, 1971 whichever is later ;
Provided that nothing contained in this
section shall affect the power of the
appropriate Government to revoke or modify the
detention order at any earlier time." Section 1(3) of the Defence of India Act, 1971 laid down the duration of that Act and said that that Act shall remain in force for the duration of the proclamation of emergency and a period of six months thereafter. Section 13 of the MISA, as amended, thus provided that the maximum period of detention under the Act shall be twelve months from the date of detention or until the expiry of a period of six months after the cessation of the proclamation of emergency, whichever is later. The Court recently dismissed a similar argument in these words in Suna Ullah v. State of J & K (1) :
"It is urged that the failure of the State
Government to specify the period of detention
introduces an infirmity in the detention of
the petitioner. This contention, in our
opinion, is without any force. According to
sub-section (1) of Section 12 of the Act, in
any case where the Advisory Board has reported
that there is, in its opinion, sufficient
cause for the detention of a person, the
Government may confirm the detention order and
continue the detention of the person concerned
for such period as it thinks fit. Section 13
of the Act specifies the maximum period of
detention. According to that section the
maximum period for which a person may be
detained in pursuance of any detention order,
which has been confirmed under Section 12,
shall be two years from the date of detention.
It is further provided that nothing in the
section shall effect the power of the
Government to revoke or modify the detention
order at any earlier time. It is, in our
opinion, difficult to infer from the language
of Section 12 of the Act that the State
Government while confirming the detention
order should also specify the period of
detention. All that the section requires is
that, if the Advisory Board has reported that
there is, in its opinion, sufficient cause for
the detention of the person, the Government
may confirm the detention order. There is
nothing in the section which enjoins upon the
Government to specify the period of detention
order. The concluding words of sub-section
(1) of Section 12, according to which the
Government may continue the detention
of the
person concerned for such period as it thinks
fit, pertain to and embody the consequences of
the confirmation of the detention order. It
is, however, manifest that the period for
which a person can be detained after the
confirmation of the detention order is subject
to the limit of two years, which is the
maximum period of detention for which a person
can be detained vide section 13 of the Act.
(1) A.I.R. 1972 S.C. 2431; 2433.
Apart from the above, we are of the opinion
that it is not always practicable and feasible
for the State Government at the time of
confirming the detention order to specify the
period of detention. The continued detention
of the detenu, subject to the maximum period
prescribed by the Act, depends upon a variety
of factors and the State Government would have
to take into account all the circumstances
including fresh developments and subsequent
events in deciding whether to keep the detenu
in detention for the maximum period or to
release him earlier. It has accordingly been
provided in sub-section (2) of Section 13 of
the Act that the State Government would have
the power to revoke or modify the detention
order at any time earlier than the expiry of
two years from the date of detention." The leading case, if we may say so, is Dattatraya Moreshwar Pangarkar v. State of Bombay(l). The majority held that an order of detention under a substantially like provision was not invalid merely because the order did not contain the period of imprisonment. Mahajan, J., as he then was, held a contrary view. But even the majority was split on their construction of the section.Das, J., as he then was, read the section to imply no obligation towrite into the order the duration, even though it may be desirable.The learned Judge observed :
"It is said that the section should be
construed irrespective Of whether it occurs in
a temporary statute or a permanent one, and it
is urged that if the statute were a permanent
one the section on the aforesaid
interpretation, would have permitted an
indefinite detention. The answer is given by
Mahajan J., in the following passage in his
judgment in S. Krishnan v The State of Madras
(supra) at page 639 with which concurred(2)
"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 life was limited to one
year. Such temporary statutes cease to have
any effect after they expire they
automatically come to an end at the expiry of
the period for which they have been enacted
and nothing further can be done under them.
The detention of the petitioners therefore is
bound to come to an end auto matically with
the life of the statute and in these circums-
tances Parliament may well have thought that
it would be wholly unnecessary to legislate
and provide a maximum period of detention for
those detained under this law." For all I know, such drastic and extensive power to continue the detention as long as it may think fit may not be given by Parliament to the executive Government in a permanent statute. (1) (1952) S.C.R. 612. (2) [1951] S.C.R. 621; 629. But if it does think fit to do so, it will not be for the Court to question the knowledge, wisdom or patriotism of the Legislature and to permit its dislike for the policy of the law to prevail over the plain meaning of the language used by the Legislature. Apart from this consideration, there is a period specified in the sub-section itself, for as soon as the appropriate Government will cease to think fit to continue the detention it will revoke the detention order under section 13 and the period of detention will automatically come to an end."
"If the specification of the period of
detention is ’not at all sacrosanct and the
appropriate Government may nevertheless
continue the detention as long as it thinks
fit to do so, why is the specification of a
period to be regarded as virtually or at all
necessary? So far as the detenu is concerned,
his detention will not be any more definite
and less irksome if it is open to the
appropriate Government to continue the
detention by an indefinite number of orders
made from time to time until the expiry of the
Act itself by afflux of time in the case of a
temporary statute or by its repeal in the case
of a permanent Act. It is said that if we
insist on a specification of a definite period
when the confirmatory order is in a deand
there after each time the period of detention
is extended then the appropriate Government
will have to apply its mind to the case of the
detenu before it will make an order for
further continuation of the detention, but
that if we say that no time need be specified,
the appropriate Government will lose sight of
the case and the detenu will be detained
indefinitely. I do not see why we should
impute such dereliction of duty to the
appropriate Government’, but even if we do so
and insist on the specification of the
period
of detention we shall perhaps be driving the
appropriate Government to fix the longest
permissible period of detention ending with
the expiry of the Act itself and then to lose
sight of the case of the detenu. That, I
apprehend, will do no good to the detenu."
"In any event, the considerations of hardship
urged upon us may make it desirable that a
period of detention should be fixed but this
cannot alter the plain meaning of the language
of the section :
Patanjali Sastri, C. J., concurred. However,
Mukherjea J. struck a different note
"The question now is whether the omission to
state the period of further detention while
confirming the detention order under section
II (1) of the Preventive Detention Act makes
the detention illegal ? The point is not free
from doubt, but having regard to the fact that
the new Preventive Detention Act is a
temporary statute which was to be in force
only up to the
1st of April, 1952, and. has only been
recently extended to a further period of six
months and no detention under the Act can
continue after the date of expiry of the Act,
I am in-.limed to hold that non-specification
of the further period in an order under
section 11(1) of the Act does not make the
order of detention a nullity. If no period is
mentioned, the order might be taken to imply
that it would continue upto the date of the
expiration of the Act itself when all
detentions made under it would automatically
come to an end. Of course, the appropriate
Government is always at liberty to terminate
the order of detention earlier, if it
considers proper, in exercise of its general
powers under section 13 of the Act,"
’It is perfectly true that an order for
detention for an indefinite period is
repugnant to all notions of democracy and
individual liberty, but the indefiniteness in
the case of an order made under section 11(1)
of the Preventive Detention Act is in a way
cured by the fact that there is a limit set to
the duration of the Act itself, which
automatically prescribes a limit of time
beyond which the order cannot operate. In my
opinion, section II (1) of the Preventive
Detention Act does contemplate that a period
should be mentioned during which the further
detention of the detwnu is to continue and the
Government should see that no omission occurs
in this respect, but I am unable to ho ld that
this omission alone would make the order a
nullity which will justify us in releasing the
detenu."
Chandrasekhara Aiyar J. concurred. The undercurrent of judicial unease at loss or citizen’s liberty because the Executive subjectively opined that way is evident in the pages of the report, but the brooding feeling that the preventive detention legislation was a short-lived statute and all imprisonment without trial would terminate at a near date was writ large in all the opinions. After all civil liberty ordinarily ends where detention without trial begins and commitment to the rule of law receives a rude shock where a permanent statute authorises long term gaol confinement. That is why courts have been strict even on procedural steps. Mathew J. recently observed in Prabhu Dayal v. District Magistrate, Kamrup(l):
"The facts of the case might induce mournful
reflection how an honest attempt by an
authority charged with the duty of taking
prophylactic measure to secure the maintenance
of supplies and services essential to the
community has been frustrated by what is
popularly called a technical error. We say
and that we think it is necessary to repeat,
that the gravity of the evil to the community
resulting from anti-social activities can
never furnish an adequate reason for invading
the personal liberty of a citizen, except in
accordance with the procedure established by
the Constitution and the laws. The history of
personal liberty is-largely the history of
insistence on observance of procedure’.
(1) W. P. No, 1496 of 1973; judgment dated
October 11, 1973.-[1974]
I SCC 103, 114.
Observance of procedure has been the bastion
against wanton assaults on personal liberty
over the years. Under our Constitution the
only guarantee of personal liberty for a
person is that he shall not be deprived of it
except in accordance with the procedure
established bylaw. The need today for
maintenance of supplies and services essential
to the community cannot be over-emphasized.
There will be no social security without
maintenance of adequate supplies and services
essential to the community. But social
security is not the only goal of good society.
There are other values in a society. Our
country is taking singular pride in the
democratic ideals in personal liberty. It
would indeed be ironic if, in the name of
social security, we would sanction the
subversion of this liberty. We do not pause
to consider whether social security is more
precious than personal liberty in the scale of
values. For, any judgment as regards that
would be but a value judgment on which
opinions might differ. But whatever be its
impact on the maintenance of supplies and
services essential to the community, when a
certain procedure is prescribed by the
Constitution or the laws for depriving a
citizen of his personal liberty, we think it,
our duty to see that that procedure is
rigorously observed, however strange this
might sound to some ears." The basic feature of the Act as distinguished from its predecessor is that it is no longer a temporary law and even the duration of the detention can be distant and considerable. We have misgivings about these anti-personal freedom facets but regard hopefully the presence and use of the power to revoke the detention on a review at any time. Moreover there is no reason to think that this extraordinary power will be used indiscriminately or inordinately by a democratic government. A tenable interpretation that a detention order of prolonged and unspecified duration has to be abandoned for the time not merely because of the pressure of precedents but because we are assured by the State’s counsel that the fulfilment of the imperative obligation of the State to review from time to time the changing social situation and the individuals’ criminal potential tipping the scales in favour of enlargement of the detenu is taking place. No responsible government should or would be irresponsive to the claim of citizen’s freedom and the argument that detention without defined duration is ipso jure invalid cannot be sustained. Shri Chatterjee took up the further position that the detention in the case on hand was founded on prevention of public disorder while the acts imputed to the petitioner ex facie were aimed at a particular person and not the public generally. Lohia’s(l) case and other rulings were said to reinforce this stance. The law is plain and the decided cases are concordant. A criminal act hitting a private target such as indecent assult of a woman or slapping a neighbour or knocking down a pedestrian while driving may not shake up public order. But a drunk with a drawn knife chasing a woman in a public street and all women running in panic, a Hindu or Muslim in a crowded place at a time of communal tension throwing a bomb at a personal enemy of the other religion and the people all scared fleeing the area, a striking worker armed with a dagger stabbing a blackleg during a bitter strike spreading terror-these are invasions of public order although the motivation may be against a particular private individual. The nature of the act the circumstances of its commission the impact on people around and such like factors constitute the pathology of public disorder. We cannot isolate the act from its public setting or analyse its molecules as in a laboratory but take its total effect on the flow of orderly life. It may be a question of the degree and quality of the activity of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of preventive detention. Another argument, rather flimsy, was made that a corrigendum reading ’public order’ in the place of ’police order’ was not communicated to the detenu. It is not so and merits no consideration. One or two other points, too trivial to be seriously noticed were also mentioned but we ignore them. Basically we must realise the unpleasant truth that the new jurisdiction of preventive detention by executive fiat founded on subjective satisfaction and jejune judicial protection is an erosion of a great right. We may repeat what this Court in a different context recently observed in Mohd. Subrati v. State of West Bengal(1) :
"It must be remembered that the personal
liberty of an individual has been given an
honoured place in the fundamental rights which
our Constitution has jealously protected
against illegal and arbitrary deprivation and
that this Court has been entrusted with a duty
and invested with a power to enforce that
fundamental right." The seriousness of the step must be appreciated by Government and continuous check-up on the need to prolong the prison life of the citizen made. The final cure for prejudicial activities threatening the survival of the community is not executive shut-up of all suspects in prison for how long one is kept guessing. Such a strategy may alienate and embitter men who should be weaned away and won over. In the present case a septuagenarian allegedly sickly is confined in jail for an unspecified period. It may well be that his private enemy on whom he threw a bomb is not there at all. It may also be that the detenu has altogether changed his outlook as many well-known terrorists have turned marvels of saintliness. History will, we hope, serve the Administration as reminder of unwitting misuse while exercising near-absolute power. We dismiss the petition. P.B.R. (1) [1973] 3 S.C.C. 250; 256
Petition dismissed.