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PETITIONER: S. KRISHNAN AND OTHERS

       Vs.

RESPONDENT: THE STATE OF MADRAS(AND OTHER PETITIONS)UNION OF INDIA--Inte

DATE OF JUDGMENT: 07/05/1951

BENCH: SASTRI, M. PATANJALI BENCH: SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ) MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BOSE, VIVIAN

CITATION:  1951 AIR  301            1951 SCR  621  CITATOR INFO :  F          1952 SC 181  (6,30)  F          1959 SC 609  (14)  R          1962 SC 945  (19)  RF         1967 SC1643  (14,237)  R          1970 SC 494  (13)  F          1972 SC1660  (7)  RF         1973 SC1461  (301,1919)  RF         1974 SC 396  (25)  R          1974 SC 613  (9,10,11,17,28,32,33,51)  R          1974 SC1336  (8)  R          1975 SC 863  (5)  E          1976 SC1207  (66)  RF         1977 SC1884  (23)

ACT:     Preventive  Detention (Amendment) Act, 1951, ss. 9,  10, 11,  12--Indian Constitution, 1950, Arts. 22 (4) (a) &  (b), 22  (7)--Detentions under earlier Act treated as  detentions under new Act and continued for more than one year--Omission to   fix   maximum   period--Infringement   of   fundamental rights--Contravention  of  Constitution--Validity of  amend- ing Act--Temporary Statutes--Order of detentions  --Validity after expiry of Statute.

HEADNOTE:     The  Preventive Detention (Amendment) Act of 1951  which extended  the operation of the Preventive Detention  Act  of 1950  for  a  period of one more year, that is,  up  to  1st April, 1952, effected two material alterations by  providing (i)  that a reference to an Advisory Board shall be made  in all cases within six weeks (s. 9); (ii) that every detention order  in  force at the commencement of the  new  Act  shall continue in force and shall have effect as if had been  made under the Act as amended (s. 12).  The petitioners, who were On  the  date  of the commencement of the  amending  Act  in detention  in  pursuance of orders made under s. 3  (1)  (a) (ii)  of the Preventive Detention Act of 1950, and  who  but for the amending Act would have been entitled to be released under  the  earlier Act on the expiry of one year  from  the

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date  of the order of detention, applied for  habeas  corpus contending  that  ss.  9 and 12 of the  amending  Act  which enacted  the  above  mentioned  provisions  contravened  the provisions  of Art. 22 (4) (a) of the Constitution and  were consequently void under Art. 13(a) inasmuch as the  combined effect  of  these sections was to keep  the  petitioners  in detention  for  a period longer than  three  months  without reference  to  an Advisory Board, and also to keep  them  in detention  for a period of more than one year.  The Act  was also attacked on the ground that it did not fix any  maximum period for detention:    Held,  per KANIA C.J., PATANJALI SASTRI,  MAHAJAN,  S.R. DAs  and  Bose JJ. :--that ss. 9 and 12  of  the  Preventive Detention (Amendment) Act, 1951, did not contravene Art.. 22 (4) of the Constitution and were not void. 622     Per  KANIA C.J., and PATANJALI SASTRI  J.--The  amending Act could be regarded as a law made substantially in accord- ance with sub-clauses (a) and (b) of cl. (7) of Art. 22, and as such it satisfied the requirements of Art. 22 (4) (b) and cannot be held to be unconstitutional or void.     Per MAHAJAN and DAs JJ.--The law enacted by the amending statute is not the same law as was declared by the  original statute  and to that extent the amended statute was  in  the nature of a new and independent statute; the effect of s. 12 was to make the detention of the petitioners a fresh  deten- tion under the new law; and there was nothing in the new law standing  by itself which authorised detention of  a  person for more than three months without reference to an  Advisory Board  or for more than one year and there was thus no  con- travention of any of the provisions of Art. 22 (4).     Held also per KANIA C.J., PATANJALI SASTRI, MAHAJAN  and Das  JJ.  (Bose J.  dissenting).--The  Preventive  Detention (Amendment)  Act, 1951, was not invalid on the  ground  that it. did not fix a maximum period for detention, inasmuch  as the  Act itself was to be in force only for a period of  one year  and  no detention  under the Act  could  be  continued after the expiry of the Act.  BoSE J.--Sub-section (1) of s. 11  of the impugned Act contravened Art. 22 (4) of the  Con- stitution  inasmuch as it did not fix any maximum period  of detention, but on the other hand empowered the government in express terms to order that a detention.shall continue  "for such  period as it thinks fit".  The view that  a  detention which  has  been ordered under an Act would come to  an  end with the expiry of the Act is not sound.

JUDGMENT:     ORIGINAL JURISDIGTION. --Petitions Nos. 303,617 to  619, 621  to  631,  567 to 571, 592, 594, 596 and  600  of  1950. Petitions under Art. 32 of the Constitution for writs in the nature  of habeas corpus.  The petitioners were detained  in pursuance  of  orders for detention made under s.  3  (1)(a) (ii)   of the Preventive Detention Act, 1950.  On  the  22nd February, 1951, while they were under detention the  Preven- tive  Detention (Amendment) Act, 1951, came into  force  and this  Act by substituting the figures "1952" for  "1951"  in sub-sec. (3) of s. 1 of the Preventive Detention Act of 1950 continued  the operation of the Act until 31st March,  1952. Since  the maximum period of detention fixed by the  Act  of 1950  was one year the petitioners applied for writs in  the nature  of  habeas corpus for their release.   The  material facts, the points raised by 623

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the  petitioners and the arguments of the counsel appeal  in the Judgment.     M.K.  Nambiyar (V. G. Row, with him) for the  Petitioner in Petition No. 303 of 1950.     Bawa Shiv Charan Singh for the Petitioners in  Petitions Nos. 618, 619, 621,622, 624, 626, 627, 628, 629, 630 and 631 of 1950.     Basant Chandra Ghose (amicus curiae) for the Petitioners in Petitions Nos. 567, 568, 569, 570, 571,592, 594,596,  and 600 of 1950.     V.K.T.  Chari,   Advocate-General,   Madras,  and   G.S. Swaminathan (R. Ganapathy lyer. with them) for the  Respond- ents in Nos. 618, 619, 621,622, 624,626, 627, 628, 629,  630 and 631 of 1950.     Fakhruddin  Ahmed  (Nuruddin Ahmed, with  him)  for  the Respondents  in Petitions Nos. 567, 568, 569, 570,  571,592, 594, 596 and 600 of 1950. Petitioner  in  person  in Petition No. 617  of  1950. M.C.  Setalvad,  Attorney-General for  India  (R.  Ganapathy lyer, with him) for the Union of India, Intervener.     1951. May 7.  The following Judgments were delivered --     KANIA  C.J.  -  I agree with the  Judgment  prepared  by Sastri J. and have nothing more to add.     PATANJALI  SASTRI J.--The common question  which  arises for  consideration  in these petitions  is  whether  certain provisions  of  the Preventive  Detention  (Amendment)  Act, 1951,  purporting  to amend the  Preventive  Detention  Act, 1950,  so as to authorise detention of , the petitioners  to be  continued beyond the expiry of one year are ultra  vires and inoperative.     The  amending  Act  hereinafter referred to as  the  new Act) came into force on 22nd February, 1951, and by  substi- tuting  the figures " 1952" for "1951" in subsection (3)  of section 1 of the Preventive Detention Act, 1950,  (hereinaf- ter referred to as the old Act) it 624 continues  the  operation of the old Act  till  31st  March, 1952.     The  petitioners  in all these cases were, at  the  com- mencement  of the new Act, under detention in  pursuance  of orders made under section 3 (1) (a) (ii) of the old Act and, save in a few cases where the detention was also attacked on some  special grounds which have no substance, the  legality of that detention was not open to question.  But such deten- tion  having commenced more than a year before the  date  of hearing  of these petitions the petitioners would have  been entitled  to be released had it not been for the  provisions of the new Act which purport to authorise the continuance of their detention.     Mr.  Nambiyar, on behalf of the petitioners, urged  that these  provisions  contravened  article 22 (4)  (a)  of  the Constitution  and  were, therefore, void  under  article  13 (2). Article 22 (4) (a) provides:     "No law providing for preventive detention shall  autho- rise  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 expiration of  the  said period  of three months that there is in its opinion  suffi- cient cause for such detention:     Provided that nothing in this sub-clause shall authorise the  detention of any person beyond the maximum period  pre- scribed  by any law made by Parliament under sub-clause  (b) of clause (7)."

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   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 in the manner  specified  and (ii) that Board must make a report before the expiration  of three months that there is sufficient cause for such  deten- tion.  Section 12 of the old Act having provided that  there was to be no review by an  Advisory Board  in cases  falling within   625 section 3 (1) (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 and to  bind  the detaining  authorities to act conformably to the  report  of the Board.  The method adopted to give effect to this scheme was  to delete some of the provisions of the old Act and  to substitute in their place new provisions.     The  material provisions of the new Act are sections  9, 10,  11  and 112. Section 9 provides for a reference  to  an Advisory Board within six weeks from ’the date specified  in sub-section  (2)  which says "The date referred  to  in  sub section  (1) shall be--(a) in every case where at  the  com- mencement of the Preventive 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 sub-section (1)of section 3, the date of commencement 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 period as it thinks fit in case the Advisory Board reports that there are sufficient grounds for  the detention, while sub-section (2) provides that  the Government shall revoke the detention order and release  the person  concerned  if the Advisory Board reports  the  other way.  Sub-section (1) of section 12 declares for the "avoid- ance  of doubt" that every detention order in force  at  the commencement  of  the new Act "shall continue in  force  and shall  have effect as if it had been made under this Act  as amended"  by the new Act, and sub-section (2) provides  that nothing contained in subsection (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. 626     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 enlarg- ing  the  period of detention of the  petitioners  who  were under detention at the commencement of the new Act by enact- ing  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 Board and ten weeks in section 10 (1) for  the submission  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 elapsed from  the date  of  their arrest without any Advisory Board  making  a

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report on their detention and it is, of course, not possible for  the  Advisory Board now provided for in such  cases  to submit its report before the expiration of that period, with the result that  their detention contravened article 22  (4) (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’ contin- ued detention any the less a violation of article 22 (4) (a) after  the deletion of old section 12.  It is a  fallacy  to treat  what was a 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  without  an Advisory Board  having  reported  within three months that there were sufficient grounds therefor, 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 was said that if the petitioners had been released on 22nd February, 1951, and re-arrested and detained    627 immediately  thereafter  under the new  Act  such  detention 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  the  continuance  of detention orders in 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 with only on that basis and not on  any other hypothetical footing.     The Attorney-General, however, contended in the alterna- tive  that the constitutional validity of section 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  authorising  preventive detention  for a period longer than three months in  accord- ance 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 of preventive detention.  On a  question of  vires, the intention of the Legislature  is  immaterial, and I agree that a provision 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  exclu- sively  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, however, submitted that the new Act did not fulfil those conditions, for it is not a law made under  subclauses (a)  and (b) of clause (7). The word "and" should be  under- stood  in  its ordinary conjunctive sense, and the  new  Act neither  prescribes the  circumstances and classes  referred to in sub-clause (a)nor the (1) [1950] S.C.R. 88, (1) [1950] S.C.R.88. 628 maximum 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 regarded as  a law  made substantially in accordance with  sub-clauses  (a)

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and  (b) of clause (7).  According to the majority  view  in Gopalan’s  case, sub-clause (a) of clause (7)being  an  ena- bling  provision, the word "and" should be understood  in  a disjunctive  sense. The combined effect of sections  9(2)(a) and 12(1) is to provide, in a certain class of cases,  name- ly, where detention 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  Board reports  that  there are sufficient  grounds  for  detention within ten weeks from the commencement of the new Act,  that is  to  say, without obtaining the opinion  of  an  Advisory Board  before  the expiration of the three months  from  the commencement of the detention as provided in sub-clause  (a) of  clause  (4).   And, although ’the new Act  does  not  in express terms prescribe 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  of the old Act till the 1st April, 1952, an  over- all  time limit beyond which preventive detention under  the Act  cannot be continued.  The general rule in regard  to  a temporary statute is that, in the absence of special  provi- sion  to  the contrary, proceedings which  are  being  taken against  a person under it will ipsofacto terminate as  soon as the statute expires (Craies on Statutes, 4th Edition,  p. 347).   Preventive  detention which would, but for  the  Act authorising it, be a continuing wrong, cannot, therefore, be continued beyond the expiry of the Act itself.  The new  Act thus  in substance prescribes a maximum period of  detention under it by providing that it shall cease to have effect  on a  specified 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 article  22,  and cannot be  declared  unconstitutional  and void.    629     The  objection to the validity of section 11(1)  can  be disposed of in a few words. The argument is that the discre- tionary power given to the appropriate Government under that sub-section to continue the detention "for such period as it thinks  fit" authorises preventive detention for an  indefi- nite period, which is contrary to the provisions of  article 22(4).   But, if, as already observed, the new Act is to  be in force only up to I st 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 therefore fails. In the result the petitions are dismissed.     MAHAJAN  J.--The question to be decided in  these  peti- tions  is whether the Preventive Detention (Amendment)  Act, 1951,  or any part thereof is invalid and whether the  peti- tioners 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 articles  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 subsection (2) place before

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an  advisory  board constituted by it under  section  8  the grounds on which the order has been made and the representa- tion, 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  (a)  of section 3. 81 630    (2) The date referred to in sub-section(1) shallbe--      (a)  in  every case where at the  commencement  of  the Preventive Detention (Amendment) Act, 1951, a person      is under detention in pursuance of a detention order made under sub-clause  (i) or (ii) of clause (a) of sub-section (1)  of section 3, the date of commencement 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 commencement of the  Preventive Detention (Amendment) Act, 1951, shall  con- tinue 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 (a) of section  1, or  sub-section (1) of section 12 of this Act as  originally enacted  shall be deemed to affect the validity or  duration of any such order."     Mr.  Nambiar  for the detenus challenged  the  vires  of these sections on the following grounds: (1) 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 preventive  detention can authorise the detention of a person for a longer  period than  three months without the intervention of  an  advisory board and without obtaining its opinion within 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  it originally stood and it thus infringes the fundamental right conferred by article 22(4).  (2) That Parliament in exercise of  powers conferred on it under article 22(7)  having  pre- scribed in section 12 of Act IV     631 of  1950 a maximum period of one year for detention in  cer- tain  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 the  amended Act  contravene  this  fundamental right  inasmuch  as  they authorize  detention  of  persons who  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  the period of one year prescribed by it by virtue  of authority given to it under article 22(7) (b) of the Consti- tution  so as to affect the eases of persons detained  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 providing for preventive detention to fix the

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maximum period for such detention.  (5) That the  provisions of  these sections infringe article 21 of  the  Constitution inasmuch  as they authorize detention contrary to  procedure established by law (Act IV of 1950) in respect of detentions under  that Act, because under established procedure  deten- tion beyond a period of one year was void.  For the ,reasons given  above  it was contended that as in the  case  of  the petitioners the maximum period of one year under section  12 of  Act IV of 1950 had expired on 27th February, 1951,  they were entitled to their release.     For  a  proper appreciation of the points urged  by  the learned  counsel and the manner in which they were  combated by the learned Attorney-General, it is necessary to  shortly state  the nature of the relevant amendments  introduced  by the-amending  Act  in the Preventive Detention  Act,  IV  of 1950.   In section 8 of Act IV of 1950, which  concerns  the constitution  of advisory boards, the new Act  has  provided that the board shall consist of three persons instead of two except in cases 632 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 the advisory board  to  all classes and cases of persons, who under Act IV of 1950  were not  entitled  to that benefit. It makes  it  obligatory  on government  to place all these cases, like all other  cases, within six weeks from a prescribed date  before an  advisory board.  In section 10 the amended Act makes it obligatory on the  advisory board to submit its report to  the  government within  ten weeks of the date specified under section 9  and it  also  authorizes  the advisory board to  call  for  such information  as it deems necessary from government and  from the person concerned and it empowers it to give a hearing to the  detenuif in any particular case it considers it  essen- tial.  Section  11 makes the opinion of the  advisory  board binding  on  government. It also  authorizes  government  to continue  the  detention of persons for such  period  as  it thinks  fit  in cases where the opinion of the board  is  in favour of the continuance of detention. Section 12  provides that 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.     The  provisions  of  the amended Act are  thus  a  great improvement  on the original Act inasmuch as they provide  a greater  opportunity to the detenus of proving  their  inno- cence than they had under the original Act. The detention of a  person without the case being referred to the opinion  of an  advisory  board constituted of independent  persons  has been completely done away with, except for a period of three months  provided for in article 22(4) of  the  Constitution. What  the amended Act has in substance done is that  instead of the cases of persons preventively detained being  consid- ered by ordinary courts of law, a special tribunal designat- ed as an advisory board and consisting of men of high  judi- cial experience has been given authority 633 to  examine their cases within a prescribed period  and  the decision of that authority has been made binding on  govern- ment.  This tribunal is obviously no substitute for a  court of  law  but  a provision like this is in the  nature  of  a substantial solatium in cases of preventive detention where- in ordinarily the detaining authority is the judging author- ity as well.

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   Shortly stated, Mr. Nambiar’s attack on these beneficial provisions  and concerning their vires is based  principally on  the  method  adopted by the draftsmen  of  the  Act  for switching  over  the detentions which were  being  continued under  section 12 of Act IV of 1950 and which were valid  by virtue of the constitutional provisions contained in article 22(4)  (b) of the Constitution to the constitutional  provi- sions 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)  for  a report of the advisory board and has extended 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  im- mutable  and unalterable one and that Parliament  could  not amend  section 12 of the Act in any manner  whatsoever  once having enacted it. I am unable to accept this contention. It seems to me, that it was open to Parliament to amend section 12 and substitute another maximum for the period of one year mentioned  therein.   If  Parliament had  recourse  to  that alternative, then in my opinion, the petitioners could  have no possible grievance as regards the vires of the new legis- lation. As regards the period of three months, it was essen- tial  to  fix  some date from which that period  had  to  be calculated  in respect of cases which were  previously  gov- erned  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 terminus quo had to be fixed for the period of three months during which the  advi- sory board had to submit its report. The amended Act 634 achieved  this by prescribing in these specified classes  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 continuing at the  date  of the  commencement of the amended Act shall be deemed  to  be detentions under the amended Act.     After  a  careful consideration of the argument  of  Mr. Nambiar I have reached the conclusion that there is  consid- erable  force in the reply made to it by the learned  Attor- ney-General.  He contended that article 22(4) provides  that no  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 its report to the government within ten weeks. It was urged that in order to judge the vires  of the amended Act it was not relevant to take into  considera- tion detention of persons validly detained under     differ- ent  statute and that its vires must be adjudged on its  own provisions  and  not  with reference to  what  has  actually happened under another law. It was frankly conceded that  if Parliament  or a State legislature passed legislation  in  a manner  which amounted to a fraud on the Constitution  inas- much  as  those enactments were passed with the  purpose  of defeating  the  constitutional provisions, then  those  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  conten- tion of Mr. Nambiar was not justified.     In my opinion, the statute as framed does not in any way contravene or abridge either the provisions of article 21 or of  article 22.  It was open to Parliament, as  already  ob- served,  to alter the maximum period of detention  mentioned

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in  section 12 of Act IV of 1950 and to enhance it.  It  was also  open to government to release these detenus after  the expiry of one year and to serve fresh orders of detention on them after their release under the amended Act.  If that     635 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. Instead of  going through  that form of ceremony, Parliament by section 12  of the amended Act provided 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 detention of all such persons becomes a fresh detention under the  new law, with the result that nothing in the amended statute can be said to abridge the fundamental right conferred by  arti- cle  22(4)  of  the Constitution.  It was  argued  that  the amended statute is not a new and an independent statute  and that in spite of the amendments it remains the same  statute as  was passed in 1950, and that the detention of the  peti- tioners is under the same law of preventive detention and it therefore offends against article 22(4) of the  Constitution and  that it virtually amounts to tacking of the  period  of detention  under  one Act to the period of  detention  under another Act and as such amounts indirectly and substantially to an infringement of the fundamental right.  In my opinion, this contention, though attractive, is without force.  Tech- nically speaking, an amended statute remains the same  stat- ute 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 amended Act and declares a new law and it is not a re-enact- ment  of  the law as was contained in the  earlier  statute. Section  12  of  the 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.   It seems to me 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 statute.   The  petitioners are being detained today by 636 force  of the provisions contained in sections 9 and  12  of the  amended  Act and not under the law that was  passed  in 1950, as by repeal of section 12 of that Act their detention under  it  technically terminated.  The new  law  admittedly standing  by  itself  does not authorize  detention  of  any person beyond a period of three months except in 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,  inas- much  as 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.     In  view  of  the above decision it  is  unnecessary  to consider the alternative  argument of the learned  Attorney- General to the effect that in case it is held that section 9 contravenes  article 22(4) (a) of the Constitution, it is  a valid  law under article 22(4) (b) of the  Constitution  and hence  the order of detention is legal.  Mr. Nambiar’s  con- tention  to the effect that in case the petitioners’  deten- tion is regarded as a fresh detention under the amended Act, then  it  is necessary to serve them with fresh  grounds  of

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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, I  think  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 under it.  When detention  is  not on any fresh grounds but on  grounds  al- ready.  served,  any default in observing the  formality  of again  serving  those very grounds on the detenu  cannot  be said  to be an infringement of the fundamental  right  under article 22(5) of the Constitution.     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 637 in  article 22 (7) of the Constitution, that maximum  became apart of the content of fundamental right and sections 9 and 12  of  the amended Act contravene  this  fundamental  right inasmuch as these authorize detention 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 preventive  detention, then  that period becomes a part of the  fundamental   right conferred   on a person under Part III of the  Constitution. The  only  method of adding to or  subtracting  ’from  those rights is by an amendment of the Constitution in the  manner provided therein. By clause (7) of article 22 Parliament has not  been authorized to add to the fundamental rights.   The contention  of the learned counsel is based on an  erroneous assumption that article 22 in clause (7) confers a fundamen- tal right on a person; in its true concept it restricts to a certain  degree  the measure of the fundamental  right  con- tained in clause 4 (a) of the article.     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 on  an  erroneous assumption  that  the clause confers  legislative  power  on Parliament.  The ambit of the legislative powers of  Parlia- ment  is contained in article 245 of the  Constitution  read with the entries in the Seventh Schedule. Article 22 of  the Constitution restricts those powers to a certain extent.  It does not enlarge them. Clause (7), however, cuts down  these restrictions  to a certain extent.  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  accord- ing 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 82 638 law, even if it has retrospective effect, cannot affect  him in any manner whatever.     The next point canvassed before us was that the  Consti- tution does not envisage detention for an indefinite  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 in the sub-clause shall  authorize  the detention of any person beyond the maximum period prescribed

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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  compul- sory  force inasmuch as the enactment authorizes  Parliament to prescribe by law a maximum period for detention, for  the advancement  of  justice  and for public good,  or  for  the benefit of persons subjected to preventive detention. Refer- ence  was  made to Maxwell on "Interpretation  of  Statutes" (9th Edn., page 246) and to the well-known case of Julius v. Bishop  of Oxford(1). Lord Cairns in that case  observed  as follows :--     ‘‘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.’’     In  my  opinion, clause (7) of’article  22,  as  already pointed  out,  in its true concept to a certain  degree  re- stricts  the measure of the fundamental right  contained  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 enabling Act words of a permissive nature cannot be given a compulsory meaning. (Vide Craies on  Stat- ute Law, p. 25,4). 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). The learned Chief Justice at p.  119  of the report observed as follows :-- (1) 5 App. Cas. 214.        (2) [1950] S.C.R. 88. 639      "Sub-clause (b) is permissive. It is not obligatory  on the  Parliament  to  prescribe any maximum  period.  It  was argued  that  this gives the Parliament a right to  allow  a person to be detained indefinitely.  If that construction is correct,  it  springs  out of the words  of  sub-clause  (7) itself   and   the  court  cannot  help  in   the   matter."     Nothing said by Mr. Nambiar is sufficient to persuade 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 tempo- rary 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  peti- tioners  therefore is bound to come to an end  automatically with  the  life of the statute and  in  these  circumstances 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.     The last point urged by Mr. Nambiar that the  provisions of  the amended Act contravene the provisions of article  21 of  the  Constitution does not impress  me.  The  expression "procedure established by law" was considered by the majori- ty  in Gopalan’s case(1) as meaning procedure prescribed  by law.  The petitioners have been detained in accordance  with the  procedure prescribed by the amended statute  and  their detention  therefore  is in accordance with  procedure  pre- scribed by law. The contention of Mr. Nambiar that they  are governed 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, unsound.  It is  open to Parliament to change the procedure by enacting a law  and that  procedure  becomes the procedure  established  by  law within the meaning (1) [1950] S.C.R. 88.

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640 of  that expression in article 21 of the Constitution.  Fur- ther,  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  prescribed  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  Preven- tive Detention (Amendment) Act, 1951, is a valid statute and the provisions impugned by Mr. Nambiar do not contravene the Constitution  and the petitioners are 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 them were vague  and  insufficient  to enable  them to make a proper representation, and  (2)  that their  detention was mala fide  and on political  and  party considerations. There is no force whatever in these  conten- tions.     The result is that all these petitions are dismissed 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.R.  DAS J.--I agree that the petitions should be  dis- missed and I do so substantially on the grounds stated by my learned brother Mahajan.       BOSE J.--With the utmost respect I am unable to accept the  majority  view. In my judgment, section 11 (1)  of  the amending  Act is ultra vires. 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 sketchily.  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  meaning of the words "procedure established by law" has   641 been  thoroughly  discussed in Gopalan’s case(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  fundamental right  not  to be kept under preventive detention  beyond  a certain  period.  The extent of that period can vary but  it can  only  be extended beyond three  months  within  certain fixed limits and subject to specified conditions.     Article  246  read with item 9 in List I and item  3  in List  III of the Seventh Schedule confers jurisdiction  upon the Union Parliament and the State Legislatures to make laws for  preventive  detention, but article 22 (4)  imposes  re- strictions. It says that-     " No law providing for preventive detention shall autho- rise  the  detention of a person for a  longer  period  than three months," unless certain conditions are fulfilled.     The  conditions are set out in sub-clause (a)  and  sub- clause (b). Under the former, a law can provide for  preven- tive  detention over three months provided (1) there  is  an advisory  board of a certain character, (2) the board is  of opinion that there is sufficient cause 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 sub-clause  (4).  This  states that--     " nothing in this sub-clause shall authorise the  deten- tion  of any person beyond the maximum period prescribed  by

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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  provid- ing for preventive detention."     The second set of conditions is given in sub-clause  (b) of  clause  (4).  This sets out that a person  can  also  be detained beyond three months provided-- (1) [1950] S.C.R. 88. 642     "such  person is detained in accordance with the  provi- sions of any law made by Parliament under subclauses (a) and (b) of clause (7)."     I venture to underline the "and" because, in my opinion, a lot turns 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 class or class- es of cases in which, a person may be detained for a  period longer than three months under any law providing for preven- tive detention without obtaining the opinion of an  advisory board in accordance with the provisions of sub-clause (a) of clause (4)."     In  my  opinion, these provisions confer  a  fundamental right not to be detained beyond a certain period. The extent of that period can vary but the maximum period of  detention cannot exceed certain fixed limits. Those limits are (a)  in the  first  instance, three months:    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 a maximum  period of  detention is prescribed by Parliament  under  sub-clause (7) (b).     I  do not agree with the contention that the word  "may" in clause (7) means "must". I am not prepared to depart from the  usual  meaning of words unless compelled to do  so  for overwhelming  reasons. In my opinion, Parliament is free  to prescribe or not to prescribe a maximum period under  clause (7)(b). It cannot be compelled to do so. But equally neither Parliament nor a State Legislature is compelled to authorise preventive  detention  beyond  three  months.  If,  however, either  wishes to do so, then it is bound to conform to  the provisions  of  either sub-clause (a)or  sub-clause  (b)  of clause  (4) or both; and in the case of sub-clause  (a)  the proviso  is  as  much a part of the subclause  as  its  main provision.   If no maximum limit is fixed under  clause  (7) (b), then the proviso cannot operate and if it cannot  oper- ate, no legislative action 643 can,  in my opinion, be taken under clause (4) (a). If A  is told  by  B that he may go to a bank and withdraw a  sum  of money  not exceeding such limit as may be fixed by C, it  is evident  that until C fixes the limit no money can be  with- drawn.  C  cannot  be compelled to fix a  limit  but  if  he chooses not to do so, the money cannot be withdrawn.  Equal- ly, if A is told that he may withdraw money not exceeding  a limit which he himself may fix, there can, in my opinion, be no right of withdrawal 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

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by  the  Burmese Government; and the Burmese  Government  is told that it may, if it so chooses, put in a road at India’s expense. It is fairly obvious that the Burmese Government 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.     I realise that analogies are often inaccurate and may be misleading. But these examples serve to illustrate the  line of  my reasoning. In my opinion, the Constitution (a)  tells the  State Legislatures that they may legislate for  preven- tive  detention beyond three months but not beyond  a  limit which  Parliament  may  fix and (b)  tells  Parliament  that Parliament itself may do the same thing provided the  deten- tion  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 the road is built there is no right of way.     The same limitation attaches to clause (4) (b). Legisla- tive  action cannot be taken under this unless,  first,  the law  is  made by Parliament and, second, it is  made  "under sub-clauses (a) and (b) of clause (7)".  I again venture  to underline the "and" because, in my opinion, "and" means  and should mean "and" unless there is 644 compelling  reason  to make it mean" or ". To my  mind,  not only  is  there no compelling reason here but, on  the  con- trary, there are powerful reasons why it should be construed in its usual and normal sense. The reasons are these.     Articles 21 and 22 confer a fundamental right and give a fundamental guarantee. It is therefore the duty of the Court to  see  that  the right is kept fundamental  and  that  the fullest  scope is given to the guarantee. 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 interpretation  in this  behalf, the interpretation which favours  the  subject must  always  be used because the right has  been  conferred upon  him and it is the right which has been made  fundamen- tal,  not the fetters and limitations with which it  may  be circumscribed  by legislative action. It ,is true  the  full scope and content of the right cannot be determined  without examining the boundaries within which it is to be  confined, and  I  agree that in interpreting  these  provisions  equal weight  must be given to all the clauses; also that  no  one part  can  be treated with greater sanctity than  the  rest. But if, when all that is done, doubt still remains, then the doubt  must,  in my judgment, be resolved in favour  of  the subject and not of the State.      Brush  aside for a moment the pettifogging of  the  law and forget for the nonce all the learned disputations  about this  and  that, and "and" or "or ", or "may" and  "must  ". Look past the mere verbiage of the 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  ? Is not the sanctity of the  individual  recognised and emphasised again and again ? Is not our Constitution  in violent  contrast  to  those of States where  the  State  is everything and the individual but a slave or a serf to serve the will of those who for the time being wield     645 almost  absolute power ? I have no doubts on this  score.  I hold it therefore to be our duty, when there is ambiguity or

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doubt  about the construction of any clause in this  chapter on Fundamental Rights, to resolve it in favour of the  free- doms which have been so solemnly stressed..Read the magnifi- cent sweep of the preamble :-     "We,  the people of India, having solemnly  resolved  to constitute India into a Sovereign Democratic Republic and to secure  to  all its citizens:  Justice,  Liberty,  Equality, Fraternity."     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 liberty except according to procedure established by law."       *             *             *     No  person who is arrested shall be detained in  custody without etc..."         *           *             *     "No law providing for preventive detention shall  autho- rise 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 freedoms conferred and that the limita- tions placed on them are but regrettable necessities ?     I  do not doubt that in construing the  Constitution  we must do so according to all the usual well recognised canons of  construction.  I do not doubt that when the language  is plain, full effect must be given to it whatever the implica- tions.  All I insist on is that when there is  ambiguity  or doubt  and it is possible 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 Liversidge’s case(1) though he made an exception  in the (1) [1942] A.C. 206 at 280. 83 646 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 told that--     "no law providing for preventive detention shall  autho- rise  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 any law made by  Par- liament under sub-clause (b) of clause (7)"     how  can  it be said that there iS no  doubt  about  the intention and that this clearly and unambiguously 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 ambiguity and there is  room for doubt.     I feel that the people of India chose for themselves the free  way  of life and that they  entrusted  to  Parliament, which  represents their will, the duty of satisfying  itself that any limitations hereafter to be placed on the  freedoms conferred are necessary and essential and that these limita- tions will not exceed such limits as Parliament itself shall determine solemnly and deliberately, after anxious  scrutiny and dutiful care. I cannot bring myself to believe that  the framers  of  our Constitution intended  that  the  liberties

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guaranteed  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 India a cold, lifeless, inert  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  life,  which is the free way. In  the  circumstances,  I prefer to decide in favour of the freedom of the subject.     I am not hampered here by considerations of war necessi- ty or emergency legislation where some authorities hold that the canons of construction are different 647 and  that allowance must be made in favour of the State  for the imperfections of language used in legislation which  had to  be  drafted and enacted in a desperate  hurry  with  the State in dire and immediate peril. I am construing a Consti- tution  which  was hammered out  solemnly  and  deliberately after  the most mature consideration and with the most  anx- ious care.  I feel bound, therefore, when there is ambiguity or  doubt, to resolve it in favour of what I conceive to  be the free way of a Sovereign Democratic 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  but for the  common  people  of India.  It should therefore be construed, 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  understand 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  liber- ties shall not be curtailed beyond limits which they and all the  world.  can  know and which can Only be  fixed  by  the highest  authority in the land, Parliament itself,  directly and specifically after affording opportunity for due  delib- eration in that august body.  I would struggle hard  against any  interpretation which permitted evasion of those  impor- tant limitations and which permitted those hardwon liberties to  be curtailed by some accidental side wind  which  allows virtual  delegation  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 are left free to decide 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 this in mind, I will 648 proceed  to examine the impugned provisions of the  amending Act.    In  my judgment, section 9 is good because it  confers  a 8benefit  and a privilege.  It takes away nothing. It  gives all  detenus  the right to go before an Advisory  Board  for review  of their cases.  It confers this right not  only  on those  who may be detained in the future but also  on  those already under detention. And further, it confers this  right on  those who had no such right before. This is not  an  in- fringement  of any fundamental right nor does it  contravene any  article of the Constitution; therefore  Parliament  was free to legislate as it pleased regarding that. It was  free artificially  to  alter the starting point of the  order  of detention  which is what it has done in sub-section  (2)(a).

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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  and states  that  the passing of the new Act  shall  not  affect either  the validity or duration of orders passed under  the old  Act.  It will be remembered that the detentions we  are considering  in  these cases were good under  the  old  Act. That  Act prescribed a maximum  limit, namely one year,  for this  class of detention. In my opinion, Parliament had  the right  to say in this particular manner, for the purpose  of removing doubts, that detentions already in force under that Act should continue in force for the maximum period  already prescribed.   That,  to my mind, is the force of  the  words "continue," "validity" and "duration." That would have  been the  result in any event but section 12 is there  to  remove possible doubts.    Section 11 (2) is also good because here again a  benefit is  conferred.  Detenus who had no right to release  on  the advice of an Advisory Board are here given this ’ privilege. Therefore,  this is also intra vires.  But  sub-section  (1) is,  to  my mind, ultra vires. It is here that  we  find  an infringement of article 22(4). It reads:--       "In 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   649 confirm  the detention order and continue the  detention  of the person concerned for such period as it thinks fit."     This is word for word the same as section 11 of the  old Act.  It does not prescribe a maximum limit.     Now  section 11 replaces sections 11 and 12 of  the  old Act.   The amending Act directs that new section 11 be  sub- stituted  for  old sections 11 and 12.  Old section  12  had prescribed a maximum limit of one year in certain classes of cases.   That is done away with in the new Act.  As  regards the  rest,  neither the old Act nor the new  prescribes  any limit  for other classes of detention. That, in my  opinion, not only contravenes article 22 (4) but in effect shifts the responsibility  for prescribing a maximum to  the  executive authorities of each State and allows them to do it ad hoc in each  case.  I am not speaking technically at the moment.  I am  viewing it broadly as the man in the street would. I  am placing myself in the position of the detenu and looking  at it  through his eyes. The niceties of the law do not  matter to him. He does not care about grammar. All that matters  to him  is that he is behind the bars and that  Parliament  has not  fixed  any  limit in his kind of case  and  that  local authorities  tell  him that they have the right to  say  how long he shall remain under detention.  I cannot bring myself to  think that this was intended by the  Constitution.   The powers given to Parliament are ample. The safeguards for the safety  of  the State are all there.  In  the  last  resort, immediate  action  can be taken under  the  emergency  provi sions. Therefore, when Parliament and the State Legislatures are  told  that they cannot authorise  preventive  detention beyond three months unless Parliament does this and that,  I am of opinion that the responsibility to do these things  is on  Parliament  itself and that in  this  particular  matter there  can  be no delegation of authority.  The  Constituent Assembly has entrusted this particular matter to the care of Parliament  itself  and has made this  Parliament’s  special responsibility. The country is therefore entitled to receive the  benefit of the  mature judgment, wisdom and  patriotism of that august body. 650

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   I am not doubting Parliament’s general powers of delega- tion.  But,  in my opinion, these powers  are  circumscribed and each case must be judged upon its own circumstances.  As this  matter  is under consideration  in another case and as mine is a dissenting voice here, all I need say in this case is that in my judgment this is not one of the matters  which can be delegated.     It was said that all this is irrelevant because a  maxi- mum  limit has in fact been fixed in the  present  instance. It was argued that the life of this Act has only been  fixed for one year and that the life of the old Act was also  only one  year  and that this in effect fixes a  maximum.   I  am aware  that  there  is high authority for this  view  and  I venture to dissent with the utmost reluctance, but with  the greatest respect I find myself unable to agree.      ’     In  the  first place, I cannot agree  that  the  maximum limit which Parliament is authorised to fix can.be fixed  in this indirect way. What Parliament is empowered 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 February,  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  pre- scribing  a maximum period. In  the  next place, when Parliament is  authorised   to  do this, it is expected to do so consciously and   deliberately after giving the matter due and mature consideration. It  is not  possible to say that Parliament had this  provision  in mind  and intended to act under it when it merely fixed  the duration of the Act.. Had the matter been properly discussed and placed before Parliament in the way it should have been, it  is  conceivable that it might.have considered  that  the maximum  period  of detention should not  exceed,  say,  six months though the duration of the Act should be one   651 year.  In  other words, that persons could  continue  to  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 Parliament under these  fundamental clauses can be discharged unconsciously.     In the third place, I cannot agree that these detentions would come to an end with the expiry of the Act. The rule in the case of temporary Acts is that-     "as a general. rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no  proceedings can be taken upon it, and it ceases to  have any  further effect.  Therefore, offences committed  against temporary  Acts must be prosecuted and punished  before  the Act  expires."  (Craies on Statute Law,  4th  edition,  page 347).     But transactions which are concluded and complete before the  Act expires continue in being despite the expiry.   See Craies  on Statute Law, page 348, and 31 Halsbury’s Laws  of England (Hailsham Edition), page 5 13.  I take this to  mean that if a man is tried for an offence created by a temporary Act  and is found guilty and sentenced to, say, five  years’ imprisonment,  he would have to serve his term even  if  the Act  were to expire the next day.  In my opinion, the  posi- tion  is the same in the case of detentions. A man,  who  is arrested under a temporary detention Act and-validly ordered

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to  be detained for a particular period, would not be  enti- tled  to claim release before his time just because the  Act expired earlier.     Then  again.   The Act’ we are considering  has  special provision to the contrary.  Section 11 ( 1 ) empowers either a State or the Union Government to order the detention of  a person "for such period as it thinks fit". If this provision is  not ultra vires, then the Act in express  terms  permits the appropriate Government to order a detention which  shall endure  beyond  the life of the Act itself, and  unless  the fundamental provisions of the Constitution can be called  in aid,  there is nothing to prevent Parliament  from  enacting such a 652 law.  Therefore, the mere fact that the Act under considera- tion  is to expire on the 26th of February, 1952, does  not, in my opinion, mean that detentions under it must necessari- ly  come to an end on that date. That in turn means that  no maximum period has been prescribed even indirectly.     Looked  straight in the face, what does the decision  of the majority upholding the validity of section 11 (1) import if it is pushed to its logical conclusion ? To me it  spells just  this.  The Constitution tells all persons resident  in the land--     "Here  is the full extent of your liberty so far as  the length of detention is concerned. We guarantee that you will not be detained beyond three months unless Parliament other- wise  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,  with- out restriction. Though we authorise Parliament to prescribe a maximum. limit of detention if it so chooses, we place  no compulsion on it to do so and we authorise it to pass legis- lation which will empower any person or authority Parliament chooses to name, right down to a police constable, 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."      In  the absence of restrictions Parliament  undoubtedly has  these  powers, for it can  legislate  about  preventive detention.  But if you remove the restrictions, what is left of the fundamental right ? My concept of a fundamental right is something which Parliament cannot touch save by an amend- ment of the Constitution.  The full content of the right can be as small or as narrow as you please, but unless there  is a  residue which can answer that test, there is to  my  mind nothing fundamental.  Now, I have no doubt that a  fundamen- tal right regarding the length of detention was intended  to be  conferred. It would be pointless to make  the  provision about three months and place it in the chapter on  Fundamen- tal  Rights if that were not so; so also there would  be  no point in the 653 elaborate provisions regarding this in clauses (4) and  (7). A simple clause saying that no detention shall exceed  three months "unless Parliament otherwise directs" would have  met the  case. It is therefore clear to my mind  that  something fundamental regarding the length     detention which Parlia- ment  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  ? Parliament 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  indi- vidual  ease  and  are free to detain for as  long  as  they

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please.  If that is so, then what is there left of  anything fundamental  regarding the maximum length of detention ?  To my  mind,  the whole object of the elaborate  provisions  in clauses (4) and (7) is to place restraints on powers regard- ing the length of indefinite and arbitrary detentions  which would otherwise be absolute.     For these reasons, I am of opinion that section 11(1) is ultra  vires.  My only hesitation has been on the  score  of Gopalan’s  case(1).  I have searched long and  anxiously  to see whether this question is concluded there and whether  my hands are tied.  After considerable study of the decision, I have reached the conclusion that I am not bound.     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 to section  11 (1)of the new, was considered. But only two Judges,  namely, my Lord the Chief Justice and my brother Mahajan, dealt with this  section directly. Their views are directly counter  to mine.  They expressly hold that section 11 of the old Act is intra vires. That means. that section 11 (1) of the  present Act  would  also have to be upheld on their view.   But  the other four Judges did not discuss the vires of section 11 at all.   They concentrated their attention on sections 12  and 14 of the old Act.  It is true my  (1)  [1950] S.C.R. 88.   84 654 brother  Das  made a general observation at the end  of  his judgment  that  in his view "the impugned Act is  valid  law except  as to section 14" but he did not expressly  consider section 11.  In the circumstances, I do not think  Gopalan’s case concludes the matter.     It is perhaps ironical that I should struggle to  uphold these  freedoms  in  favour of a class of  persons  who.  if rumour is to be accredited and if the list of their  activi- ties furnished to us is a true guide. would be the first  to destroy them if they but had the power.  But I cannot  allow personal predilections to sway my judgment  of the Constitu- tion.   As  Lord Justice Scrutton remarked in  Rex  v.  Home Secretary    ‘‘ It is, indeed, one test of belief in principles if you apply  them  to  cases with which you have  no  sympathy  at all.’’     and  as Mr. Justice Holmes of the United States  Supreme Court said,  speaking of the  American Constitution,     "If there is any principle of the Constitution that more imperatively  calls for attachment than any other it is  the principle  of free thought--not free thought for  those  who agree with us but freedom for the thought that we hate.."     I  respectfully dissent from the majority view and  con- sider that section 11 (1) is ultra vires.  It follows, in my view, that the present detentions are bad.  I am of  opinion that the petitioners in these cases are entitled to  immedi- ate release.                                  Petitions dismissed.     Agent for the petitioner in Petition No. 303: Subrahman- yam.     Agent  for the Petitioners in Petitions Nos.  618,  619, 621,622 and 624 to 631: V.P.K. Nambiyar. Agent  for  the State of Madras: P.A. Mehta. Agent  for  the State of Assam: Naunit Lal. Agent for the Union of India: P.A. Mehta. (1) (1923) L.J.K.B, 797. 655

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