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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: ATMA RAM SRIDHAR VAIDYA

DATE OF JUDGMENT: 25/01/1951

BENCH: KANIA, HIRALAL J. (CJ) BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR  157            1951 SCR  167  CITATOR INFO :  R          1951 SC 174  (10)  E          1951 SC 270  (7)  R          1952 SC 350  (11)  R          1953 SC 318  (3)  R          1954 SC 179  (8)  RF         1956 SC 531  (4,5)  E&D        1957 SC  23  (9)  E&F        1957 SC 164  (3)  F          1958 SC 163  (14)  R          1959 SC1335  (10,13)  RF         1962 SC 911  (7)  RF         1964 SC 334  (6)  R          1966 SC1910  (4,8)  RF         1967 SC 295  (60)  R          1970 SC 852  (5,14)  R          1972 SC2086  (11)  RF         1973 SC2469  (5)  R          1974 SC 183  (15,58A,59)  D          1974 SC 255  (8)  RF         1976 SC1207  (116)  R          1979 SC1925  (8,17)  RF         1981 SC  28  (14)  D          1982 SC1029  (9)  RF         1982 SC1315  (23,30,32)  R          1984 SC 444  (14)

ACT:     Constitution  of  India, Arts.  21,  22  (5)--Preventive detention-Duty to communicate grounds and to afford opportu- nity     to    make     representation--Whether     distinct rights--Ground  supplied vagueNon-supply of  particulars  or supply of particulars at later stage-Whether vitiates deten- tion--Jurisdiction  of  court  to  consider  sufficiency  of grounds--Preventive Detention Act (IV of 1950), s. 3.

HEADNOTE:    The  respondent was arrested on the 21st of April,  1950, under the Preventive Detention Act, 1950, and on the 29th of

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168 April. 1950, he was supplied with the ground for his  deten- tion  which was as follows:  "That you are engaged  and  are likely to be engaged in promoting acts of sabotage on  rail- way and railway property in Greater Bombay."  The respondent filed  a habeas corpus petition contending that  the  ground supplied was vague as it did not mention the time, place  or nature of the sabotage or how the respondent promoted it and that  as the ground gave no particulars, his  detention  was illegal.  Pending the disposal of the petition, the  Commis- sioner  of  Police sent a communication  to  the  respondent giving these further particulars, viz., that the  activities mentioned in the grounds supplied to him were being  carried on  by him in Greater Bombay between January, 1950, and  the date  of his detention and that he will in  all  probability continue  to  do so. The High Court of Bombay held  that  if these  particulars had been furnished at the time  when  the grounds  were  furnished on the 29th of  April,  1950,  very likely  they  would  have come to the  conclusion  that  the grounds  were  such as would have led the  detenue  to  know exactly what he was charged with and to make a proper repre- sentation, but released the respondent holding that the only grounds which were furnished in the purported compliance  of Art. 22 (5) were the grounds furnished on the 29th of April, 1950,  and as these grounds were not such as to  enable  the detenue to make a proper representation, there was a  viola- tion  of  a  fundamental right and a  contravention  of  the statutory provisions and this violation cannot be set  right by  the detaining authority by amplifying or  improving  the grounds already given:      Held by the Full Court (KANIA C.J., FAZL ALI, PATANJALI SASTRI,  MUKHERJEA, DAS and CHANDRASEKHARA AIYAR  JJ).-Under s. 3 of the Preventive Detention Act, 1950, it is the satis- faction  of the Central Government or the State  Government, as the case may be, that is necessary, and if the grounds on which it is stated that the Central Government or the  State Government are satisfied have a rational connection with the objects which were to be prevented from being attained,  the question of satisfaction cannot be challenged in a court  of law except on the ground of mala fides.      Held  also  per  KANIA C.J., FAZL ALI,   MUKHERJEA  and CHANDRASEKHARA  AIYAR  JJ., (PATANJALI SASTRI  and  DAS  JJ. dissenting).--Clause  (5)of  Art. 22 confers two  rights  on the  detenue, namely, first, a right to be informed  of  the grounds  on which the order of detention has been made,  and secondly, to be afforded the earliest opportunity to make  a representation  against the order; and though  these  rights are  linked  together,  they are two  distinct  rights.   If grounds  which have a rational connection with  the  objects mentioned  in  s.  3 are supplied, the  first  condition  is complied  with.   But the ,right to  make  a  representation implies  that the detenue should have information so  as  to enable him to make a representation, and if the grounds 169 supplied are not sufficient to enable the detenue to make  a representation, he can rely on the second right.  He may  if he  likes ask for further particulars which will enable  him to make a  representation.  On an infringement of either  of these two rights the detained person has a right to approach the  court, and even if an infringement of the second  right under Art. 22 (S) is alone, established he is entitled to be released.     Per PATANJALI SASTRI and DAS JJ.--As the power to  issue a  detention order depends upon the existence of a state  of mind in the detaining authority, that is, its  satisfaction,

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which is purely a subjective condition and judicial  enquiry into the sufficiency of the grounds to justify the detention is  thus excluded, it would be wholly inconsistent with  the scheme  to hold that it is open to the court to examine  the sufficiency  of  the same grounds to enable the  person  de- tained  to  make a representation, for, the  grounds  to  be communicated to the person detained are the grounds on which the  order has been made.  There is further nothing in  Art. 22,  el. (5), to warrant the view that the grounds on  which the order of detention has been made must be such, that when communicated to the person they are found by a court of  law to  be sufficient to enable him to make what the court  con- siders to be an adequate representation, or that the  latter part  of cl. (5) confers a distinct right on the detenue  or an  independent  obligation on the  detaining  authority  to furnish the detenue with sufficient particulars and  details to enable him to make an effective representation.     Held by the Full Court (KANIA C.J., FAZL ALI,  PATANJALI SASTRI, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.)-In  any view, on the facts of the case there was no infringement  of any fundamental right of the respondent or contravention  of any constitutional  provision as he  had been supplied  with sufficient  particulars as soon as he raised  the  objection that the grounds supplied were vague and the respondent  was not, therefore, entitled to be released.     Per  KANIA C.J., FAZL ALI, MUKHERJEA and  CHANDRASEKHARA AIYAR JJ.)--The "grounds" for making the order which have to be communicated to the person detained as soon as may be are conclusions  of facts and not a complete recital of all  the facts.  These grounds must be in existence when the order is made.   No part of the ’grounds can be held back, and  after they have been once conveyed there can be no addition to the grounds.   All facts leading to the conclusion  constituting the ground need not, however, be conveyed at the same  time. If a second communication contains no further conclusion  of fact but only furnishes some of the facts on which the first mentioned  conclusion  was rounded it does not amount  to  a fresh ground. The test therefore is whether what is conveyed in  the  second  communication is a statement  of  facts  or events, which facts or 170 events were already taken into consideration in arriving  at the conclusion constituting the ground already supplied.     So  long as the later communications do not make  out  a new  ground, their contents are no infringement of  the  two procedural  rights of the detenue mentioned in Art. 22,  cl. (5). They may consist of a narration of facts or particulars relating  to the grounds already supplied.  But in doing  so the time factor in respect of second duty, viz., to give the detained person the earliest opportunity to make a represen- tation, cannot be overlooked.     If  on  reading the ground furnished it  is  capable  of being intelligently understood and is sufficiently  definite to furnish materials to enable the detained person to make a representation  against  the order it cannot be said  to  be "vague."   The question whether the vagueness or  indefinite nature of the statement furnished to the detained person  is such that he was not given the earliest opportunity to  make a representation is a matter within the jurisdiction of  the court’s inquiry and subject to the court’s decision.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION:Case No. 22 of 1950.

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   Appeal  under Art. 132(1) of the Constitution against  a judgment  and order of the Bombay High Court dated 1st  Sep- tember, 1950, in Criminal Application No. 807 of 1950.   The facts and arguments of counsel are set out in the judgment.     M.C. Setalvad Attorney-General, (G. N. Joshi, with  him) for the appellant.     A.S.R. Chari and Bava Shiv Charan Singh for the respond- ent.     1951.  Jan.  25. The judgment of Kania C.J.,  Fazl  Ali, Mukherjea  and  Chandrasekhara Aiyar JJ.  was  delivered  by Kania C.J.  Patanjali Sastri and  Das JJ. delivered separate judgments.     KANIA  C.J.--This  is an appeal from a judgment  of  the High Court at Bombay, ordering the release of the respondent who  was  detained in custody under a detention  order  made under  the Preventive Detention Act (IV of 1950).   The  re- spondent  was first arrested on the 18th of December,  1948, under the Bombay 171 Public Security Measures Act, 1948 (Bombay Act IV of  1947), but  was  released on the 11th of November,  1949.   He  was arrested again on the 21st of April, 1950, under the Preven- tive  Detention Act, 1950, and on the 29th of April,  1950‘, grounds for his detention ’were supplied to him.  They  were in the following terms: "That you are engaged and are likely to  be engaged in promoting acts of sabotage on railway  and railway property in Greater Bombay."  The respondent filed a habeas corpus petition on the 31st of July, 1950, in  which, after  reciting his  previous  arrest and release, in  para- graphs 6 and 7 he mentioned as follows :--     "(6) On his release the applicant left Bombay and stayed out of Bombay, that is, in Ratlam and in Delhi.      (7) On 20th April, 1950, he returned to Bombay and  was immediately arrested as stated above."     He  contended  that the sole aim of  the  Government  in ordering  his detention was not the preservation  of  public order  or the security of the State, but the locking  up  of active  trade unionists who belonged to the All-India  Trade Union  Congress.  He contended that the ground is  "delight- fully vague and does not mention when, where or what kind of sabotage or how the applicant promoted it." He further urged that the ground gave no particulars and therefore was not  a ground  as  required to be furnished  under  the  Preventive Detention  Act, 1950.  He stated that the present  appellant acted mala fide, for a collateral purpose, outside the scope of the Act, and that the applicant’s detention in any  event was illegal and mala fide. When this petition was  presented to  the  Court on the 9th of August, 1950, it  directed  the issue  of a notice to the Commissioner of  Police.   Pending the  disposal  of the Rule, on the 26th  August,  1950,  the Commissioner of Police sent a communication to the  respond- ent as follows:     "In  pursuance of section 7 of the Preventive  Detention Act, 1950 (Act IV of 1950), and in continuation of my commu- nication No. 227 dated the 29th April, 172 1950, the following further particulars are  hereby communi- cated  to  you  in connection with the grounds  on  which  a detention order has been made against you under  sub-section (1) of section 3 of the said Act :-     That  the activities mentioned in the grounds  furnished to  you were being carried on by you in Greater  Bombay  be- tween  January 1950 and the date of your detention;  and    In all probability you will continue to do so.     2.   If,  in view Of the particulars now  supplied,  you

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wish  to  make a further representation  against  the  order under which you are detained,  you  should address it to the Government of Bombay and forward it through the Superintend- ent of Arthur Road Prison, Bombay."     On the 30th of August, 1950, the Commissioner of  Police filed an affidavit against the petition of the respondent in which  it was stated that the objectionable activities  were carried  on by the applicant between the months of  January, 1950, and the date of detention.  It further stated that  in or about the month of January, 1950, there was a move for  a total strike on the railways in India in the month of March, 1950,  and  the applicant was taking prominent part  to  see that the strike was brought’ about and was successful.  As a means  to make the strike successful and bring  about  total cessation  of  work on all railways, the applicant  and  his associates were advocating sabotage on railways and  railway property in Greater Bombay.  He further stated that reliable materials  were put before him of the respondent  being  en- gaged in such activities by experienced police officers.  He added  that  although the railways strike in  the  month  of March  did not materialise, the idea of bringing about  such strike as soon as convenient continued to be entertained and the  present  respondent was actively  engaged  in  bringing about such a strike in the near future.  He then stated that the  disclosure of further facts relating to the  activities of  the detenue  was against  public interest.  In  para.  6 there was a specific denial that 173 the  respondent,  after his release in November,  1949,  and till  20th  April, 1950, was out of Bombay.  It  was  stated that  he  used to go out of Bombay at times but  during  the major part of the period he was in the city of Bombay.     When the matter came up before a Bench of the High Court the  respondent’s petition was granted.  In the judgment  of the  Court, Chagla C.J. observed: "It is clear by reason  of the view we have taken in several cases under section 491 of the Criminal Procedure Code, that this is not a ground which would  enable the detenue to make a representation to  which he  is entitled both under the Act and under  the  Constitu- tion."   After noticing the affidavit of the Commisioner  of Police,  it  was further observed: "We appreciate  the  fact that,  after our decision was given, Government  decided  to place  all  the  materials before us so that  we  should  be satisfied  that what influenced the detaining  authority  in making the order was not any ulterior motive but that  ample materials  were at the disposal of the  detaining  authority which  would  justify the applicant’s  detention.   We  have looked  at  this affidavit and we have also  looked  at  the particulars  furnished  to us by Mr.  Chudasama.   If  these particulars had been furnished at the time when the  grounds were  furnished on the 29th of April, 1950, very  likely  we would have come to the conclusion that the grounds were such as  would have led the detenue to; know exactly what he  was charged  with  and to make a  proper  representation."   The judgment is however based on the  following observation   of the  Chief Justice: "Anew and important question arises  for our consideration; and that is whether it is permissible  to the detaining authority to justify the detention by amplify- ing     and     improving     the     grounds     originally furnished   .........   The only grounds which  we  have  to consider  and which were furnished in the purported  compli- ance  of  article 22(5) were the grounds  furnished  to  the detenue  on  the 29th of April, 1950; and if  these  grounds were  not  such as to enable the detenue to  make  a  proper representation, then there was  a

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174 violation  of the fundamental right and a  contravention  of the  statutory provisions.  That violation and that  contra- vention  cannot be set right by the detaining  authority  by amplifying  or improving the grounds already given.   As  we said  before, the point of time at which we have  to  decide whether there was a compliance or not with the provisions of article 22 (5) is the 29th of April, 1950, when the  grounds were furnished, and not when further and better  particulars were  given on the 26th of August 1950." The learned  Attor- ney-General,  appearing for the appellant,  has  strenuously objected to this line of approach.     As the question of vagueness of grounds for the order of detention  and  the question whether  supplementary  grounds could be furnished after the grounds were first given to the detenue  have  arisen in various High Courts,  we  think  it right  that   the   general principles  should  be  properly appreciated.   The Constitution of India has given  legisla- tive powers to the States and the Central Government to pass laws permitting preventive detention. In order that a legis- lation permitting preventive detention may not be  contended to be an infringement of the Fundamental Rights provided  in Part  III  of the Constitution, article 22  lays   down  the permissible  limits  of  legislation  empowering  preventive detention. Article 22 prescribes the minimum procedure  that must be included in any law permitting preventive  detention and  as  and  when such requirements are  not  observed  the detention, even if valid an initio, ceases to be "in accord- ance  with procedure established by law" and  infringes  the fundamental  right of the detenue guaranteed under  articles 21  and 22 (s) of the Constitution. In that way the  subject of preventive detention has been brought into the chapter on Fundamental  Rights.  In the 3resent case we  are  concerned only  with  clauses (5) and (6) of article 22 which  run  as follows:-     22. "(5) When any person is detained in pursuance of  an order made under any law providing for preventive detention, the authority making the order shall, 175 as soon as may be, communicate to such person the ground  on which  the  order has been made and shall afford   him   the earliest opportunity of making a representation against  the order.     (6)  Nothing in clause (5) shall require  the  authority making  any such order as is referred to in that  clause  to disclose facts which such authority considers to be  against the public interest to disclose."     It  has  to  be borne in mind that  the  legislation  in question  is  not an emergency legislation.  The  powers  of preventive detention under this Act of 1950 are in  addition to  those  contained in the Criminal Procedure  Code,  where preventive detention is followed by an inquiry or trial.  By its very nature, preventive detention is aimed at preventing the  commission  of an offence or  preventing  the  detained person  from achieving a certain end.  The authority  making the  order therefore cannot always be in possession of  full detailed information when it passes the order and the infor- mation  in its possession may fall far short of legal  proof of any specific offence, although it may be indicative of  a strong probability of the impending commission of a prejudi- cial act.  Section a of the Preventive Detention Act  there- fore  requires  that  the Central Government  or  the  State Government must be satisfied with respect to any person that with  a  view to preventing him from acting  in  any  manner prejudicial  to (1) the defence of India, the  relations  of

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India with foreign powers, or the security of India, or  (2) the  security  of  the State or the  maintenance  of  public order,  or  (8)  the maintenance of  supplies  and  services essential to the community  .........  it is necessary So to do,  make an order directing that such person  be  detained. According  to the wording of section 3 therefore before  the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that  his activities  are directed against one or other of  the  three objects  mentioned  in the section, and that  the  detaining authority was satisfied that it was necessary to prevent him from 23 176 acting  in  such a manner. The wording of the  section  thus clearly  shows that it is the satisfaction of  the   Central Government or the State Government on the point which  alone is necessary to be established. It is significant that while the  objects  intended  to be defeated  are  mentioned,  the different  methods, acts or omissions by which that  can  be done  are  not mentioned, as it is not humanly  possible  to give   such   an exhaustive list.  The satisfaction  of  the Government however must be based on some grounds.  There can be  no  satisfaction if there are no grounds for  the  same. There  may be a divergence of opinion as to whether  certain grounds  are  sufficient  to bring  about  the  satisfaction required  by  the  section. One person may  think  one  way, another the other way.  If, therefore, the grounds on  which it  is stated that the Central Government or the State  Gov- ernment was satisfied are such as a rational human being can consider  connected  in some manner with the  objects  which were  to be prevented from being attained, the  question  of satisfaction  except on the ground of mala fides  cannot  be challenged  in  a court.  Whether in a particular  case  the grounds  are sufficient or not, according to the opinion  of any person or body other than the Central Government or  the State  Government, is ruled out by the wording of  the  sec- tion.  It  is not for the court to sit in the place  of  the Central Government or the State Government and try to deter- mine  if  it would have came to the same conclusion  as  the Central  or  the  State Government. As  has  been  generally observed,  this is a matter for the subjective  decision  of the  Government and that cannot be substituted by an  objec- tive  test  in  a court of law. Such  detention  orders  are passed on information and materials which may not be strict- ly  admissible  as  evidence under  the Evidence  Act  in  a court,  but which the law, taking into   consideration   the needs  and  exigencies of administration, has allowed to  be considered  sufficient  for the subjective decision  of  the Government.     An  order having been so permitted to be made, the  next step to be considered is, has the detained person 177 any say in the matter? In the chapter on Fundamental Rights, the  Constitution  of India, having given  every  citizen  a right  of  freedom  of movement, speech,   etc.  with  their relative limitations prescribed in the different articles in Part  III, has considered the position of a person  detained under an order made under a Preventive Detention Act.  Three things  are  expressly considered. in article 22 (5)  it  is first considered that the man so detained has a right to  be given  as soon as may be the grounds on which the order  has been made. He may otherwise remain in custody without having the  least idea as to why his liberty has been  taken  away. This is considered an elementary right in a free  democratic

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State.  Having received the grounds for the order of  deten- tion,  the next point which is considered is, "but  that  is not  enough;  what  is the good of the  man  merely  knowing grounds for his detention if he cannot take steps to redress a wrong which he thinks has been committed  either in belief in the grounds or in making the order." The clause therefore further  provides that the detained person should  have  the earliest  opportunity making a representation  against   the order.   The representation has to  be against the order  of detention because the grounds are only steps for the  satis- faction  of the Government on  which satisfaction the  order of  detention has been made. The third thing provided is  in clause (6). It appears to have been thought that in  convey- ing  the  information to the detained person  there  may  be facts which cannot be disclosed in the public interest.  The authorities  are  therefore left with a discretion  in  that connection  under  clause (6).  The grounds which  form  the basis  of satisfaction when formulated are bound to  contain certain facts, but mostly they are themselves deductions  of facts from facts.  That is the general structure of  article 22, clauses (5) and (6), of the Constitution.      The  question arising for discussion is what should  be stated  in  the grounds. It is argued that whatever  may  be stated  or  omitted  to be stated,  the  ground   cannot  be vague;that the Constitution envisages the 178 furnishing  of  the grounds once and therefore there  is  no occasion for furnishing particulars or supplemental  grounds at a later stage; and that article 22 (5) does not give  the detained person a right to ask for particulars, nor does  it give  the authorities any right to supplement  the  grounds, once  they have furnished the same. In our opinion  much  of the controversy is based on a somewhat loose appreciation of the  meaning of the words used in the discussion.  We  think that the position will be clarified if it is appreciated  in the  first instance what are the rights given by article  22 (5).  ’The  first part of article 22, clause  (5),  gives  a right  to  the  detained person to be  furnished  with  "the grounds on which the order has been made" and that has to be done  "as soon as may be."  The second right given  to  such persons  is of being afforded "the earliest  opportunity  of making  a representation against the order."  It is  obvious that  the grounds for making the order as  mentioned  above, are the grounds on which the detaining authority was  satis- fied that it was necessary to make the order. These  grounds therefore  must be in existence when the order is made.   By their  very nature the grounds are conclusions of facts  and not  a complete detailed recital of all the facts. The  con- clusions  drawn from the available facts will show in  which of  the three categories of prejudicial acts  the  suspected activity  of  the particular person is considered  to  fall, These  conclusions are the "grounds" and they must  be  sup- plied.  No part of such "grounds" can be held back  nor  can any more "grounds" be added thereto.  What must be  supplied are  the  "grounds  on which the order has  been  made"  and nothing  less.   The  second right  of  being  afforded  the "earliest opportunity of making a representation against the order"  is  not confined to only a physical  opportunity  by supplying  paper and pen only.  In order that a  representa- tion can be made the person detained must first have  knowl- edge  of the grounds on which the authorities conveyed  that they  were   satisfied  about the necessity  of  making  the detention  order.  It is therefore clear that if the  repre- sentation has to be intelligible to meet the charges 179

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contained  in the grounds, the information conveyed  to  the detained  person must be sufficient to attain  that  object. Ordinarily, the "grounds" in the sense of conclusions  drawn by the authorities will indicate the kind of prejudicial act the  detenue is suspected of being engaged in and that  will be sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion  against him.  Of course if the detenue is told about the details  of facts  besides the grounds he will certainly be in a  better position to deal with the same.  It is significant that  the clause does not say that the "grounds" as well as details of facts  on  which’ they are based must be furnished  or  fur- nished at one time.  The law does not prescribe within  what time  after  the grounds are  furnished  the  representation could  be made.  The time in each case appears  deliberately unprovided  for  expressly, because ’circumstances  vary  in each  case and make it impossible to fix a  particular  time for the exercise of each of these two rights.     It  thus appears clear that although both  these  rights are  separate  and are to be exercised at  different  times, they  are still connected with each other.  Without  getting information sufficient to make a representation against  the order  of detention it is not possible for the man  to  make the representation.  Indeed the right will be only  illusory but  not  a  real right at all.  The right  to  receive  the grounds is independent but it is thus intentionally bound up and  connected  with the right to make  the  representation. Although these two rights are thus linked up, the contingen- cy  of further communication between the furnishing  of  the grounds  on which the order is made and the exercise of  the right  of representation granted by the second part of  that clause is not altogether excluded., One thing is clear  from the  wording  of  this clause and that  is  that  after  the grounds  are  once conveyed to the detenue there can  be  no addition  to the grounds. The grounds being the heads,  from which the Government was satisfied that it was necessary  to pass  the  order of detention, there can be no  addition  to those 180 grounds  because such additional grounds will be either  the grounds which were not elements to bring about the satisfac- tion  of the Government or if they were such  grounds  there has  been  a breach of the provision of the  first  part  of article 22 (5), as those grounds for the order of  detention were  not  conveyed to the detained person "as soon  as  may be."    This however does not mean that all facts leading to  the conclusion mentioned in the grounds must be conveyed to  the detained person at the same time the grounds are conveyed to him.  The  facts on which the conclusion  mentioned  in  the grounds  are based must be available to the Government,  but there  may  be cases where there is delay or  difficulty  in collecting the exact data or it may not be convenient to set out  all the facts in the first communication.  If the  sec- ond’  communication contains no further conclusion  of  fact from  facts, but only furnishes all or some of the facts  on which  the  first  mentioned conclusion was  rounded  it  is obvious  that  no fresh ground for which  the  order      of detention was made is being furnished to the detained person by  the second communication which follows some  time  after the  first communication.  As regards the contents  of  that communication  therefore he test appears to be whether  what is  conveyed in the second  communication is a statement  of facts  or  vents, which facts or events were  already  taken into consideration in arriving at the conclusion included in

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the  ground  already supplied.  If the  later  communication contains facts leading to a conclusion which is outside  the ground  first  supplied, the same cannot be looked  into  as supporting  the  order  of  detention  and  therefore  those grounds are "new" grounds.  In our opinion that is the  more appropriate  expression to be used.  The  expression  "addi- tional  grounds"  seems  likely  to  lead  to  confusion  of thought.     The next point to be considered is the time factor. if a second  communication becomes necessary, when should  it  be made ? Clause 22 (5) lays down two time factors.  The  first is that the grounds should be supplied  "as soon as may be " This allows the 181 authorities reasonable time to formulate the grounds on  the materials  in their possession. The time element  is  neces- sarily left indeterminate because activities of  individuals tending to bring about a certain result may be spread over a long  or a short period, or a larger or a smaller  area,  or may  be  in connection with a few or  numerous  individuals. The time required to formulate the proper grounds of  deten- tion, on information received, is bound to vary in individu- al  cases. There is no doubt that no express words are  used to suggest a second communication from the authority to  the detained person.  But having regard to the structure of  the clause  dealing  with the two rights connected by  the  word "and  ",  and the use of the words "as soon as may  be"  and "earliest  opportunity" separately, indicating two  distinct time  factors, one in respect of the furnishing  of  grounds and  the other in respect of the making of  the  representa- tion,  the contingency of a second communication  after  the grounds are furnished, is not excluded.  However, the second communication  should  not be liable to be  charged  as  not being within the measure "as soon as may be ".  Secondly, it must  not create a new ground on which satisfaction  of  the Government  could be suggested to have been arrived at.   In our  opinion,  if these two conditions  are  fulfilled,  the objection against a later communication of details or  facts is not sufficient to cause an infringement of the  provision made  in article 22(5).  The question has to  be  approached from  another  point of view also. As mentioned  above,  the object  of furnishing grounds for the order of detention  is to  enable  the detenue to make a representation,  i.e.,  to give him an opportunity to put forth his objections  against the order of detention.  Moreover, "the earliest  opportuni- ty" has to be given to him to do that.  While the grounds of detention are thus the main factors on which the  subjective decision  of  the Government is based,  other  materials  on which  the conclusions in the grounds are rounded could  and should equally be conveyed to the detained person to  enable him to make out his objections against the 182 order.   To put ,it in other words, the detaining  authority has  made its decision and passed its order.   The  detained person  is then given an opportunity to urge his  objections which  in cases of preventive detention  comes always  at  a later  stage.  The grounds may have been  considered  suffi- cient by the Government to pass its judgment.  But to enable the  detained person to make his representation against  the order,  further  details may be furnished to  him.   In  our opinion,  this appears to be the true measure of the  proce- dural rights of the detained person under article 22 (5).   It  was argued that under article 22 (6)  the  authorities are   permitted  to withhold facts which they  consider  not desirable  to be disclosed in the public interest.   It  was

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argued that therefore all other facts must be disclosed.  In our  opinion that is not the necessary conclusion  from  the wording of article 22 (6). It gives a right to the detaining authority not to disclose such facts, but from that it  does not  follow  that  what is not stated or  considered  to  be withheld  on that ground must be disclosed and if  not  dis- closed,  there is a breach of a fundamental right.   A  wide latitude is left to the authorities in the matter of disclo- sure.    They  are given a special privilege in respect  of  facts which are considered not desirable to be disclosed in public interest.   As regards the rest, their duty is  to  disclose facts so as to give the detained person the earliest  oppor- tunity to make a representation against the order of  deten- tion.    On  behalf of the respondent, it was argued that  if  the grounds of detention are vague or insufficiently clear there will  result a failure to give him the earliest  opportunity to make  a representation against the order of detention and that  defect  in its turn must affect  the  satisfaction  on which  the order of detention was made.  It was argued  that just as a ground which is completely irrelevant, and  there- fore,  in  law is no ground at all, could  not  satisfy  any rational  person about the necessity for the order, a  vague ground 183 which is insufficient to enable the detenue to make a repre- sentation  would  similarly make the   order  of   detention based  on  it, void.  In our opinion, this argument  is  un- sound.   Although  the  ground may be good there  may  be  a certain  indefiniteness  in its  statement.   Proceeding  on the footing that there is some connection, i.e., the  ground by  itself is not so convincingly irrelevant  and  incapable of  bringing about satisfaction in any rational person,  the question whether such ground can give rise to the  satisfac- tion  required for making the order is outside the scope  of the  inquiry of the court.  On the other hand, the  question whether the vagueness or indefinite nature of the statements furnished to the detained person is such as to give him  the earliest opportunity to make a representation to the author- ity  is  a  matter within the jurisdiction  of  the  court’s inquiry  and subject to the court’s decision.   The  analogy sought  to  be  drawn between a ground  which  can  have  no connection  whatsoever with the order and a ground which  on its  face has connection with the order but is not  definite in its statement, is clearly  faulty.  The extreme position, on  the other hand, that there is no connection between  the ground to be furnished and the representation to be made  by the detained person under article 22 (5) is equally unsound, when  the object in furnishing the ground is kept  in  mind. The  conferment  of  the  right  to  make  a  representation necessarily  carries with it the obligation on the  part  of the  detaining   authority to furnish  the   grounds,  i.e., materials  on  which the detention order was  made.  In  our opinion, it is therefore clear that while there is a connec- tion  between  the obligation on the part of  the  detaining authority  to  furnish grounds and the right  given  to  the detained person to  have an earliest opportunity to make the representation,  the  test to be applied in respect  of  the contents  of the grounds for the two purposes is quite  dif- ferent.  As already pointed out, for the first, the test  is whether it is sufficient to satisfy the authority.  For  the second, the test is, 24 184

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whether  it is sufficient to enable the detained  person  to make the representation at the earliest opportunity.   The argument advanced on behalf of the respondent mixes up the  two rights given under article 22 (5) and  converts  it into one indivisible right. We are unable to read article 22 (5)  in that way. As pointed out above, the two  rights  are connected  by  the word "and". Furthermore, the use  of  the words "as soon as may be" with the obligation to furnish the grounds of the order of detention, and the fixing of another time  limit, viz. the earliest opportunity, for  making  the representation,  makes the two rights distinct.  The  second right, as it is a right of objection, has to depend first on the  service of the grounds on which the conclusion,   i.e., satisfaction of the Government about the necessity of making the order, is based.  To that extent, and that extent alone, the two are connected. But when grounds which have a ration- al  connection with the ends mentioned in section a  of  the Act  are supplied, the first condition is satisfied. If  the grounds  are not sufficient to enable the detenue to make  a representation, the detenue can rely on his second right and if he likes may ask for particulars which will enable him to make  the representation.  On an infringement of  either  of these two rights the detained person has a right to approach the  court and complain that there has been an  infringement of his fundamental right and even if the infringement of the second part of the right under article 22 (5) is established he  is bound to be released by the court.  To treat the  two rights mentioned in article 22 (s) as one is neither  proper according to the language used, nor according to the purpose for which the rights are given.         The  contention that the grounds are vague  requires some  clarification.  What is meant by vague ? Vague can  be considered  as  the antonym of ’definite’.   If  the  ground which  is supplied is incapable of being understood  or  de- fined with sufficient certainty it can be called vague.   It is not possible to state affirmatively more on the  question of  what  is vague.  It must vary according to  the  circum- stances of each case.  It is 185 however improper  to  contend  that a ground  is necessarily vague  if the only answer of the detained person can  be  to deny it. That is a matter of detail which has to be examined in  the  light  of the circumstances of each  case.   If  on reading  the ground  furnished it is capable of being intel- ligently understood and is sufficiently definite to  furnish materials to enable the detained person to make a  represen- tation  against the order of detention it cannot  be  called vague.   The only argument which could be urged is that  the language used in specifying the ground is so general that it does not permit the detained person to legitimately meet the charge against him because the only answer which he can make is  to say that he did not act as generally  suggested.   In certain cases that argument may support the contention  that having regard to the general language used in the ground  he has not been given the earliest opportunity to make a repre- sentation  against  the  order of detention.  It  cannot  be disputed  that  the representation mentioned in  the  second part of article 22 (5) must be one which on being considered may give relief to the detained person.     The argument that supplementary grounds cannot be  given after the grounds are first given to the detenue,  similarly requires  a closer examination. The  adjective   "supplemen- tary"  is capable of covering cases of adding new grounds to the  original  grounds, as also giving  particulars  of  the facts  which  are already mentioned, or of giving  facts  in

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addition to the facts mentioned in the ground to lead to the conclusion  of fact contained in the ground originally  fur- nished.   It is clear that if by "supplementary grounds"  is meant additional grounds, i.e., conclusions of fact required to  bring  about  the satisfaction of  the  Government,  the furnishing  of any such additional grounds at a later  stage will amount to an infringement of the first mentioned  right in article 22 (5) as the grounds for the order of  detention must  be before the Government before it is satisfied  about the necessity for making the order and all such grounds have to be furnished 186 as  soon  as may be.  The other aspects,  viz.,  the  second communication (described as supplemental grounds) being only particulars  of   the facts  mentioned or indicated  in  the grounds first supplied, or being additional incidents  which taken  along  with the facts mentioned or indicated  in  the ground already conveyed lead to the same conclusion of fact, (which is the ground furnished in the first instance)  stand on  a different footing.  These are not new  grounds  within the  meaning  of the first part of article  22  (5).   Thus, while  the  first  mentioned type  of  "additional"  grounds cannot be given after the grounds are furnished in the first instance,  the  other  types even  if  furnished  after  the grounds  are furnished as soon as may be, but provided  they are furnished so as not to come in conflict with giving  the earliest opportunity to the detained person to make a repre- sentation, will not be considered an infringement of  either of  the rights mentioned in article 22 (5) of the  Constitu- tion.     This  detailed examination shows that preventive  deten- tion  is not by itself considered an infringement of any  of the fundamental rights mentioned in Part III of the  Consti- tution.   This  is, of course, subject  to  the  limitations prescribed  in  clause (5) of article 22.  That  clause,  as noticed above, requires two things to be done for the person against  whom the order is made. By reason of the fact  that clause  (5)forms part of Part III of the  Constitution,  its provisions  have  the same force and sanctity as  any  other provision  relating  to fundamental rights.  As  the  clause prescribes two requirements, the time factor in each case is necessarily left fluid.  While there is the duty on the part of  the detaining authority to furnish grounds and the  duty to give the detained person the earliest opportunity to make a  representation,  which obligations, as shown  above,  are correlated, there exists no express provision  contemplating a second  communication from the detaining authority to  the person detained.  This is because in several cases a  second communication  may not be necessary at all. The  only  thing which emerges from the discussion is that while the authori- ties must 187 discharge  the  duty  in furnishing grounds  for  the  order detention "as soon as may be" and also provide "the earliest opportunity to the detained person to’ make the  representa- tion",  the  number  of communications  from  the  detaining authority to the detenue may be one or more and they may  be made  at intervals, provided the two parts of the  aforesaid duty are discharged in accordance with the wording of clause (5).  So long as the later communications do not make out  a new  ground, their contents are no infringement of  the  two procedural  rights of the detenue mentioned in  the  clause. They  may  consist of a narration of  facts  or  particulars relating  to the grounds already supplied. But in  doing  so the time factor in respect of the second duty, viz. to  give

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the  detained  person  the earliest opportunity  to  make  a representation, cannot be overlooked.  That appears to us to be the result of clause (5) of article 22.     In numerous cases that have been brought to our  notice, we  have  found  that there has been  quite  an  unnecessary obscurity on the part of the detaining authority in  stating the grounds for the order. Instead of giving the information with  reasonable details, there is a deliberate  attempt  to use the minimum number of words in the communication convey- ing the grounds of detention.  In our opinion, this attitude is quite deplorable.  We agree with the High Court of Bombay in its observation when it says:  "In all the matters  which have  come up before us we have been distressed to find  how vague and unsatisfactory the grounds are which the detaining authority furnished to the detenue; and we are compelled  to say that in almost every case we have felt that the  grounds could  have been ampler and fuller without any detriment  to public  interest." While the Constitution gives the  Govern- ment  the  privilege of not disclosing  in  public  interest facts  which  it considers undesirable to disclose,  by  the words used in article 22 (5) there is a clear obligation  to convey to the detained person materials (and the  disclosure of which is not necessary to be withheld) which will  enable him to make a representation.  It may be 188 noticed  that  the  Preventive Detention Act  may  not  even contain machinery to have the representation looked into  by an independent authority or an advisory board.  Under  these circumstances, it is but right to emphasize that the  commu- nication made  to  the detained person to enable him to make the  representation should, consistently with the  privilege not  to  disclose facts which are not desirable to  be  dis- closed  in public interest, be as full and adequate  as  the circumstances permit and should be made as soon as it can be done.  Any deviation from this rule is a deviation from  the intention  underlying  article 22 (5) of  the  Constitution. The  result of this attitude of some  detaining  authorities has been that, applying the tests mentioned’ above,  several communications   to  the detained persons  have  been  found wanting  and  the orders of detention are pronounced  to  be invalid.     Having regard to the principles mentioned above, we have to  consider whether the judgment of the High Court is  cor- rect.   We have already pointed out that the summary  rejec- tion by the High Court of the later communication solely  on the  ground that all materials in all circumstances must  be furnished to the detenue when the grounds are first communi- cated, is not sound. We have indicated the circumstances and conditions  under which the later communication may  or  may not  be considered as falling within the purview of  article 22 (5) of the Constitution.     In dealing with the position when the grounds were first communicated, the High Court held as follows: "This is not a ground which would enable the detenue to make a  representa- tion  to which he is entitled both under the Act  and  under the Constitution."  In this case the later communication  of the  26th August, 1950, was made after the respondent  filed his petition and it appears to have been made to  controvert his  allegation that he was never in Bombay between  January and April, 1950, as alleged in his affidavit.  After  taking into  consideration  this communication it was  observed  by Chagla C.J. that if these particulars had been furnished  on 29th April, 1950, very likely the 189 court  would have rejected the petition.  The court set  the

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respondent  free  only because of its view that  after  29th April  no  further communication was  permissible.’  In  our opinion, this view is erroneous.  We think that on the facts of  the  present case therefore  the  respondent’s  petition should have been dismissed.  We therefore allow the appeal.     PATANJALI  SASTRI. J.--While I concur in the order  pro- posed  by  my  Lord that this appeal should  be  allowed,  I regret  I find myself unable to agree with him on  the  true meaning  and  effect  of article 22, clause  (8),  which  is reproduced  in  section 7 of the Preventive  Detention  Act, 1950, (hereinafter referred to as "the Act").  Put  shortly, the question that falls to be decided is:  Is it within  the competence of the court to examine the grounds  communicated to  a person detained under the Act, with a view to  see  if they  are sufficient in its opinion to enable him to make  a representation to the detaining authority against the order, and if they are not, to direct his release ?     It  is  now settled by the decision of the  majority  in Gopalan’s  case(1) that article 21 is applicable to  preven- tive detention except in so far as the provisions of article 22  (4) to (7) either expressly or by necessary  implication exclude  its  application,  with the result  that  a  person cannot be deprived of his personal liberty, even for preven- tive purposes, "except according to procedure established by law." Part of such procedure is provided by the Constitution itself  in clauses (5) and (6) of article 22 which  read  as follows:     "(5)  When  any person is detained in  pursuance  of  an order made under any law providing for preventive detention, the  authority  making the order shall, as soon as  may  be, communicate  to such person the grounds on which  the  order has been made and shall afford him the earliest  opportunity of making a representation against the order.     (6)  Nothing in clause (5) shall require  the  authority making  any  such  order as is referred to  in  that  clause  (1) [1950] S.C.R. 88. 190 to  disclose  facts  which such authority  considers  to  be against the public interest to disclose.     If this procedure is not complied with, detention  under the Act may well be held to be unlawful, as it would then be deprivation  of personal liberty which is not in  accordance with the procedure established by law.  The question accord- ingly  arises as to what are the requirements of article  22 (5) and whether they have been complied with in the  present case ?     On behalf of the respondent it is urged that the  clause provides  two  safeguards for the person ordered to  be  de- tained, namely, that (1) the grounds of his detention should be communicated to him as soon as may be, and (2) he  should be given the earliest opportunity of making a representation against the order. As there is to be no trial in such cases, the  right of making a representation affords, it  is  said, the  only opportunity to the person detained to  repell  the accusation brought against him and establish his  innocence. It is the communication of the grounds of detention that  is expected to give him notice of what he is to meet by  making a  representation.  The grounds must, therefore, it is  sub- mitted, give sufficient indication of the nature and  extent of  the information on which action has been  taken  against him and must contain sufficient particulars of the time  and place  of the acts charged, so as to enable him to make  his representation effective as far as it is in his power to  do so.  If the grounds are vague and do not disclose  the  sub- stance  of the information on which the detention  has  been

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based, there would be no real compliance with the  procedure prescribed by article 22 (s), and the detention must, it  is claimed, be unlawful. In other words, the sufficiency of the grounds  for the purpose of enabling the person detained  to make an effective representation against the order of deten- tion is, in every case, a justiciable issue.     It must now be taken as settled by the decision of  this Court in Gopalan’s case(1), which on this point was (1) [1951] S.C.R. 88. 191 unanimous,  that section 3 of the Act is constitutional  and valid notwithstanding that it leaves  it to the,  "satisfac- tion"  of the executive government to decide whether  action under  the Act is to be taken or not against any  particular person  or persons.  The learned:Chief Justice  pointed  out (at p. 121) that action by way of preventive detention  must be based largely on suspicion, and quoted the remark of Lord Finlay  in  Rex v. Halliday(1), that a court  is  the  least appropriate  tribunal  to investigate the  question  whether circumstances   of   suspicion  exist   warranting  the  re- straint  on  a person.  Dealing with   a   similarly  worded provision  of the Central Provinces and Berar Public  Safety Act,  1948, the Federal Court declared in another  unanimous judgment, that "The language clearly shows that the  respon- sibility for making a detention order rests upon the provin- cial executive as they alone are entrusted with the duty  of maintaining  public peace;and it would be a serious  deroga- tion  from that responsibility if the court were to  substi- tute  its  judgment for the satisfaction of  the   executive authority  and, to that end, undertake an  investigation  of the sufficiency of the materials on which such  satisfaction was grounded  .........  The court can, however, examine the grounds  disclosed  by  the Government to see  if  they  are relevant  to the object which the legislation has  in  view, namely, the prevention of acts prejudicial to public  safety and tranquillity, for "satisfaction" in this connection must be  grounded  on material which is of  rationally  probative value"-Machindar   Shivaji  Mahar v. The King  (2).    These decisions  clearly establish, what indeed is plain from  the nature  of the measure, that preventive detention is a  form of  precautionary police action, to be employed on the  sole responsibility of the executive government whose  discretion is  final, no recourse being permitted to a court of law  by way  of  review or justification of such  action  except  on allegations of mala fides or irrational conduct. (1) [1917] A.C. 260, 269.       (2) [1949-50] 25 192     When the power to issue a detention order has thus  been made to depend upon the existence of a state of mind in  the detaining authority, that is, its "satisfaction", which is a purely  subjective  condition, so as to exclude  a  judicial enquiry  into the sufficiency of the grounds to justify  the detention,  it  seems to me to be wholly  inconsistent  with that scheme to hold that it is open to the court to  examine the  sufficiency  of the same grounds to enable  the  person detained  to  make a representation, for, be it  noted,  the grounds to be communicated to the person detained  are   the "grounds  on which the order  has  been  made." Indeed,  the logical result of the argument advanced by the  respondent’s counsel  would be to invalidate section 3 of the Act  in  so far  as it purports to make the satisfaction of the  govern- ment  the  sole  condition of a lawful  detention,  for,  if clause  (5) of article 22 were to be construed as  impliedly authorising a judicial review of the grounds of detention to

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see  if  they contain sufficient particulars for  making   a representation, then, the subjective condition prescribed in section 3 would be inconsistent with that clause and  there- fore void.  When this was pointed out to counsel he  submit- ted  that the decision in Gopalan’s case (1) as to the  con- stitutionality of section 3 required reconsideration in  the light  of  his arguments based on article  22,  clause  (5). Although the clause was not then considered from this  point of view, it came in for a good deal of discussion in connec- tion  with  section 14 of the Act and the  present  argument must, in my opinion, be rejected because it runs counter  to that decision.     Apart  from  this aspect of the matter, I  am  not  much impressed with the merits of the argument.  While  granting, in view of the structure and wording of clause (5), that the grounds communicated to  the person detained are to form the basis  of his representation against the order, I am  unable to  agree with what appears to be the major premise  of  the argument,  namely, that clause (5) contemplates  an  inquiry where  the  person detained is to be formally  charged  with (1) [1950] S.C.R.188, 193 specific  acts or omissions of a culpable nature and  called upon to answer them.  As pointed out by Lord Atkinson in Rex v. Halliday (1), preventive detention’ being a precautionary measure,  "it must necessarily proceed in all cases to  some extent  on  suspicion  or,  anticipation  as  distinct  from proof",  and  it must be capable of being  employed  by  the executive  government  in sudden emergencies  on  unverified information supplied to them by their police or intelligence officers.   the Government, acting honestly and in good faith make an order being "satisfied" on such information, however lacking  in particulars, that a person should  be   detained in  the  public  interest, as they have  been  empowered  by Parliament  to do, then all that article 22 (5) requires  of them  is to communicate as soon as may be the grounds  which led to the making of the order, to the person concerned, and to give him the earliest opportunity of making any represen- tation  which  he may wish to make on the basis of  what  is communicated to him. If such communication is made and  such opportunity  is  given  the detaining  authority  will  have complied with the procedure prescribed by the  Constitution, and the person under  detention cannot complain that he  has been  deprived  of his personal liberty  otherwise  than  in accordance  with  the procedure established by law.   I  can find nothing in article 22, clause (5), to warrant the  view that  the grounds on which the order of detention  has  been made  must  be such that, when communicated  to  the  person detained  they are found by a court of law to be  sufficient to  enable  him to make what the court considers  to  be  an adequate representation.  The right to be produced before  a Magistrate and to consult and be defended by a legal practi- tioner  is expressly denied by the Constitution itself to  a person under preventive detention [vide article 22 (1),  (2) and  (3)3  and this. Court held in  Gopalan’s  case(2)  that there  was nothing in the Constitution to entitle him  to  a hearing  even  before  the detaining  authority.   All  this underlines the executive character of the function exercised by (1) [1917] A.C. 260, 275.            (2) [1950] S.C.R. 88, 194 the authority which does not in any way embark on a judicial or quasi-judicial inquiry.  In such circumstances the repre- sentation  which the person detained is allowed to  make  to the  Government, which is constituted the judge in  its  own

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cause,  cannot be assumed to be similar in scope or  purpose to a defence against a formulated charge in a court of  law. The  argument, therefore, that the right of making a  repre- sentation  should be made effective in the sense  that  such person  should be enabled to defend himself successfully  if possible,  and,  for that purpose, the  detaining  authority should communicate to him the necessary particulars on  pain of  having  the order quashed if such  particulars  are  not furnished, proceeds on a misconception of the true position.     Perhaps  the most cogent reason for rejecting the  argu- ment is to be found in the language and provision of  clause (6) of article 22.  "Nothing in clause (5)", that is to say, neither the right to be informed of the "grounds" of  deten- tion  nor  the  right to   make   a  "representation"  shall "require"  the detaining authority to disclose  facts  which the  authority  "considers" should not be disclosed  in  the public  interest. In other words, clause (5) should  not  be taken  to import an obligation to provide particulars  which the authority is given an absolute discretion to furnish  or withhold.     I  cannot understand how it can be claimed, in the  face of clause (6), that it is incumbent on the executive govern- ment to communicate particulars which a court of law consid- ers necessary to enable the person detained to make a repre- sentation.   It  cannot be compulsory to  furnish  what  the authority  is given an uncontrolled power to decide to  give or  to refuse.  The combined effect of clauses (5)  and  (6) is,  to  my  mind, to require the  detaining  authority,  to communicate to the person affected only such particulars  as that authority and not a court of law, considers  sufficient to enable the said person to make a representation.     It is worthy of note that in the well-known English case of Liversidge v. Anderson C), the existence of a   (1) [1942] A.C. 206. 195 similar privilege was regarded as a "very cogent reason" for holding  that the words "If the Secretary of State has  rea- sonable cause to believe" did not raise a justiciable  issue as  to  the existence of such cause as  an  objective  fact. Viscount Maugham observed "It is beyond dispute that he  can decline to disclose the information on which he has acted on the  ground  that to do so would be contrary to  the  public interest,  and  that this privilege of the Crown  cannot  be disputed.  It is not ad rem on the question of  construction to  say  in reply to this argument that there are  cases  in which the Secretary of State could answer the attack on  the validity  of  the order for detention  without  raising  the point of privilege.  It is sufficient to say that there must be a large number of cases in which the information on which the  Secretary of State is likely to act will be of  a  very confidential  nature.  That must have been  plain  to  those responsible   in   advising  His Majesty in  regard  to  the Order in Council, and it constitutes, in my opinion, a  very cogent reason  for thinking that the words under  discussion cannot be read as meaning that the existence of  ’reasonable cause’  is one which may be discussed in a court  which  has not the power of eliciting the facts which in the opinion of the Secretary of State amount to ’reasonable cause’."     There  was considerable discussion as to the meaning  of the words "grounds" and "representation" used in clause (5). These are words of very wide connotation and, in the view  I have  expressed, it is unnecessary to define them.  It  may, however, be noted that clauses (5) and (6) are not  mutually exclusive  in  the sense that, when clause (6)  is  invoked, clause  (5) ceases to be applicable.  When,  therefore,  the

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detaining  authority  withholds  the  material  facts  under clause  (6)and  communicates  to  the  person  detained  the grounds of  detention, which in that case must be necessari- ly   vague,  it  would  still  be  communicating to him  the "grounds" on which the order has been made, and such  repre- sentation  as  the person may wish to make on the  basis  of that communication would 196 still  be a "representation ", within the meaning of  clause (5).   This  shows that no precise connotation  can  be  at- tributed      to      the     terms      "grounds"      and" re-  presentation"  as used in clause (5),  for  in  certain cases  at least, the one can be vague and the  other  inade- quate   from  the point of view of the person detained  and, on a question of construction they need not be different  in other cases.     It  was  suggested in the course of  the  argument  that clause  (5) dealt with two distinct and independent matters, namely,  (1) the communication of the grounds of  detention, and (2) the affording of an opportunity to make a  represen- tation against the detention, and that the grounds  communi- cated need not have any necessary relation to the  represen- tation provided for. the right to make a representation,  it was  said, imported, by implication, an independent  obliga- tion  on  the part of the authority to  furnish  the  person detained  with  sufficient particulars and  details  of  the accusation  against  him apart from and in addition  to  the obligation expressly imposed on the authority to communicate the grounds on which the order has been made, for the reason that  without such particulars     no adequate or  effective representation could be made’ against the order, and  though the sufficiency of the Grounds on which the order was  based had been held not to be open to judicial examination,  there was no reason why the sufficiency of the further  communica- tion implied in the provision for representation should  not be  justiciable.   The different time-limits fixed  for  -he performance  of  the  duties imposed by clause  (5)  on  the detaining authority are said to support this argument.   The construction  suggested  is,  in my  opinion,  strained  and artificial  and cannot be accepted. The collocation  in  the same  clause of the right to be informed of the  grounds  of detention and the right to make a representation against  it indicate,  to my mind, that the grounds communicated are  to form  the basis of the representation and, indeed,  are  in- tended  mainly, if not solely, for that purpose. To  suggest that, apart from those grounds, and right of making a repre- sentation 197 imports,  by necessary implication, a further obligation  to give such details and particulars as would render that right effective is, in my opinion, not to’ construe the clause  in its  natural  meaning but to stretch it by  the  process  of implication,  so as to square, with one’s  preconceived  no- tions of justice and fairplay. No support for this construc- tion  can  be derived from the provision  of  distinct  time limits for the communication of the grounds and the  afford- ing  of opportunity for representation. as that can  be  ex- plained by the different degrees of urgency required in  the two  cases. The grounds are to be communicated "as  soon  as may  be" which means as soon as possible and imports a  much higher  degree of urgency than what is implied in  affording the "earliest opportunity" which, I take it, means affording writing  and  communication facilities to the  person  under detention  as  soon as he is ready and desires to  make  the representation.

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   While  clause  (5) does not allow the  authority,  after making the order of detention and communicating the  grounds of such order, to put forward fresh grounds in justification of that order, I can find nothing in that clause to preclude the authority furnishing particulars or details relating  to the  grounds originally  communicated, or the  person  under detention availing himself of such particulars and making  a better  or a further representation.  Nor is there  anything to  prevent  such person from asking for, or  the  authority from  providing,  further and better  particulars  of  those grounds where it is in a position to do so.  But the attempt in  these  and similar proceedings has always  been  not  to secure  the necessary particulars but to shift the arena  of the  contest to the court which, as Lord Finlay remarked  in the  case  already  referred to, is  the  least  appropriate tribunal  for investigating what must largely be matters  of suspicion  and  not proof and which, for that  very  reason, might  afford the relief hoped for without being in  posses- sion of all the facts.     Reference  was  made to the decisions  of  several  High Courts dealing with the necessity of furnishing  particulars of the grounds of detention. But those decisions 198 turned  on the provisions of the various  Provincial  Public Safety Acts which were passed before the commencement of the Constitution and which, in most cases, specifically provided for the communication of particulars. Those decisions are of no assistance to the respondent as neither in article 22 nor in  the Act is there any express provision that  particulars of  the grounds of detention should be given to  the  person detained.     Our  attention was called to the decision of this  court in  Ishwar  Das v. The State(1) as an  instance  where  this court  considered the grounds of detention to be  vague  and directed  the  release of the petitioner in that  case  from detention under the Act.  As pointed out in the brief  judg- ment in that case, no arguments were addressed on the  point and  the case was disposed of on the view prima. facie  sup- ported  by  the decisions already referred to that,  if  the grounds  were  too general and vague to  enable  the  person under detention to make a representation, he was entitled to be  released.  No value can therefore be  attached  to  that decision as a precedent.     In the course of the debate it was repeatedly urged that this  court should be jealous in upholding the  liberty   of the  subject  which  the Constitution has  guaranteed  as  a fundamental  right  and  must not adopt  a  construction  of article  22  (5)  which would rob  the  safeguards  provided therein of all their efficacy.  I am profoundly conscious of the  sanctity  which the Constitution attaches  to  personal liberty and other fundamental rights and of the duty of this court to guard against inroads on them by the legislature or the  executive.  But when, as has been stated, the Constitu- tion  itself has authorised preventive detention and  denied to the subject the right of trial before a court of law  and of  consulting or being defended by a legal practitioner  of his  choice, providing only certain  procedural  safeguards, the  court could do no more than construe the words used  in that  behalf  in their natural sense consistently  with  the nature,  purpose and scheme of the measure thus  authorised, to ascertain what (1) Not reported. 199 powers are still left to the court in the matter.  It is  in this  light that I have endeavoured to construe  clause  (5)

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and,  for  the reasons indicated above, I have come  to  the conclusion  that  it  is not the province of  the  court  to examine  the sufficiency of the grounds for the  purpose  of making  a  representation,  a matter left  entirely  to  the discretion  of the executive authority. An argument in  sup- port  of  the liberty of the subject has always  a  powerful appeal  but  the  court should, in my  opinion,  resist  the temptation of extending its jurisdiction beyond its  legiti- mate bounds.     DAS  J.--This appeal from a decision of the Bombay  High Court raises a very important question as to the sufficiency of  the grounds of an order of detention under the   Preven- tive   Detention  Act, 1950.  The question depends, for  its answer,  on a correct interpretation of clauses (5) and  (6) of article 22 of our Constitution which have been reproduced in  section 7 of the Act. A similar question has  also  been raised in another appeal filed in this court by one  hundred detenus  from the decision of a Bench of the  Calcutta  High Court, being Case No. 24 of 1950 (Tarapada and Others v. The State  of West Bengal)(1).  As the view I. have taken as  to the  true meaning and effect of the relevant  provisions  of the Constitution and of the Act has not commended itself  to the  majority of my colleagues, I express it with a  certain amount  of diffidence arising out of the high regard I  have for their opinions.     Under  section 3 (1) (a) of the Act the  authority  con- cerned  can make an order of detention only if he is  satis- fied that, with a view to preventing a person from acting in a manner prejudicial to one or more of the matters  referred to  in  sub-clauses (i), (ii) and (iii) of  clause  (a),  an order  should be made.  What materials will engender in  the mind  of  the  authority the  requisite  satisfaction  under section  3 (1) of the Act will depend  on the  training  and temperament  and the habitual mental approach of the  person who is the authority to (11) Reported infra at p. 212     (1) Reported infra at p.212.      26 200 make the detention order.  The authority concerned may be  a person  who  will  not derive  the  requisite   satisfaction except on very precise and full information amounting almost to legal proof or he may be a person equally honest who will be  so satisfied on meagre information which may  appear  to others to be very vague or even nebulous.  If the  authority is a person of the first mentioned type, then the  "grounds" on  which  he will make the order will necessarily  be  more precise  and  fuller in particulars than  the  "grounds"  on which an order may be made by the authority who is a  person of  the second mentioned type.  The "grounds" on  which  the authority who is a person of the first mentioned type  makes an order of detention create no difficulty, for such grounds are  quite precise and ample, and, when communicated to  the detenu,  will clearly enable him to appreciate  the  reasons for  his detention and to make his representation.  We  are, however,  concerned with the "grounds" on which an order  of detention  may be made by the authority who is a  person  of the  second  mentioned  type who may  derive  the  requisite satisfaction from the conclusions which he may draw from the available   information, which may not be precise  or  ample but  on which, having regard to his source  of  information, the  authority  may honestly feel safe to rely and  to  act. This last mentioned type of grounds" will, in the  following discussion, be referred to as "vague grounds".  The question for  our decision is whether an order of detention  made  in good faith on such "vague grounds" is valid when it is  made

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and  whether  if valid when made,  becomes  invalid  because these  very  grounds, when communicated to the  detenu,  are found to be insufficient to enable him to make a representa- tion.     The first question urged by the learned counsel for  the detenu is that an order of detention made upon grounds which are too vague to enable the detenu to to make a  representa- tion  against the order is bad ab initio.  The  argument  is thus formulated.  Article 22 (5) requires two things,  name- ly, first, that the authority 201 making  the  order of detention shall, as soon  as  may  be, communicate  to the detenu the grounds on which  the,  order has  been  made  and, secondly, that  the  authority’  shall afford him the earliest opportunity to make a representation against the order. The two requirements’are correlated.  The object of the communication of the grounds, according to the argument,  is to enable the detenu to make a  representation against  the order of detention and the combined  effect  of the  two constitutional requirements is that the grounds  on which the order is made must be such as will, when  communi- cated to the detenu, enable him to make a representation. If the  grounds  communicated  are too vague  being  devoid  of particulars, then no representation can be made on the basis of them and if no representation can be made on the basis of these  grounds,  no order of detention could  properly  have been  made on those grounds, for it is the grounds on  which the order had been made that have to be communicated to  the detenu  so as to enable him to make a  representation.   The argument, shortly put, is that the implied requirement  that the grounds must be such as will enable the detenu to make a representation  also indicates the quality or  attribute  of the  grounds  on which the order of detention may  be  made. Whether  the grounds satisfy the requirements of article  22 (5)  is not left to the subjective opinion of the  authority which makes the order of detention but an objective test  is indicated,  namely,  that the grounds must be such  as  will enable  the  detenu  to make a  representation  which  quite clearly  makes the matter justiciable.  If the  court  finds that no representation may be made on account of the  vague- ness of the grounds. the court must also hold that the order made  on such vague grounds cannot be sustained.   The  next step  in the argument is that the provisions of the  Preven- tive  Detention Act, 1950 (Act IV of 1950), which was passed after the Constitution came into effect must be read in  the light  of article 22 (5) as construed above.  So  read,  the satisfaction  of the authority referred to in section  a  of the  Act  cannot  be  the  subjective  satisfaction 202   of   the   authority,  for  the   satisfaction   must   be founded  on grounds which, when communicated later on,  will enable the detenu to make a representation which  postulates an  objective test. This involves that section 3 (1) (a)  of the  Act should be read as if the words "on  grounds  which, when  communicated to him, will enable him to make a  repre- sentation  such  as is mentioned in section 7 of  this  Act" occurred  after the words "if satisfied with respect to  any person"  and before the words "that with a view".   If  such interpolation  of  words  be not  permissible  according  to accepted  canons of construction, then it must be held  that in  so far as section 3 of the Act makes an order of  deten- tion dependent on the subjective satisfaction of the author- ity, the section is unconstitutional, being repugnant to the provisions  of article 22 (5) and the necessary   intendment thereof.   The argument  so formulated is attractive but  on

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closer  scrutiny  will be found to be unsound.   Before  the Constitution came into force there were laws for the mainte- nance of public security in almost all the provinces  and in those  laws there were provisions similar to the  provisions of section 3 of the Preventive Detention Act, 1950.  It  was held  in  many cases that in the absence of bad  faith,  and provided  the  grounds on which the  authority  founded  its satisfaction  had a reasonable relation or relevancy to  the object  which the legislation in question had in  view,  the satisfaction  of  the authority was  purely  subjective  and could  not be questioned in any court of law.  The  decision of  the  Federal  Court in Machindar Shivaji  Mahar  v.  The King(1) is one of such decisions.  Vagueness of the  grounds on which satisfaction of the authority is founded cannot  be treated  as  on the same footing as the irrelevancy  of  the grounds, unless the vagueness be such as may, by itself,  be cogent  evidence in proof of bad faith.  If the grounds  are relevant  to the objects of the legislation and if there  is no  proof of bad faith, then mere vagueness of  the  grounds cannot vitiate the satisfaction founded on them.  The satis- faction being subjective, the court    (1) [1949-50] F.C.R. 827 at p.831, 203 cannot arrogate to itself the responsibility of judging  the sufficiency or otherwise of the grounds.  It is true that at the time those decisions were given the Constitution had not come  into force and there were no fundamental  rights,  but these well established principles were recognised and adopt- ed  by all members of this court in Gopalan’s case(1)  which came  up for consideration after the Constitution  had  come into force. In that case it was held unanimously that  under section 3 of the Preventive Detention Act, 1950, the  satis- faction  of  the authority was purely subjective  and  could not, in    the absence of proof of bad faith, be  questioned at     all and that section 3 was not  unconstitutional.  It is true that the arguments now advanced were not advanced in exactly the same form on that occasion, but that fact  makes no  difference, for the arguments have no force as they  are founded on the assumption that the grounds on which an order may  be  made must be such as will,  when  communicated,  be sufficiently full and precise so as to enable the detenu  to make  a representation.  I find no warrant for such  an  as- sumption.   Indeed, the fact that this court has  held  that section  3  of the Act which makes the satisfaction  of  the authority a purely subjective matter is not unconstitutional clearly  destroys the cogency of the argument formulated  as hereinbefore  stated.  The decision in Gopalan’s case(1)  as to the validity of section 3 of the Act makes it  impossible to accept this argument.     It is next urged that even if the initial order was  not invalid when made because satisfaction was a purely  subjec- tive  matter for the authority alone and the   court  cannot consider  or pronounce upon  the sufficiency of the  grounds on  which  the  satisfaction was  based,  nevertheless,  the continuance  of the detention becomes unlawful if  the  same grounds  when communicated, be found to be vague and  devoid of  particulars so as to render the making of a  representa- tion by the detenu somewhat difficult. The argument is  that although the vagueness of the grounds is not     (1) [1950] S. C. R. 88. 204 justiciable at the initial stage when the order is made  and so  the  order  cannot  be said to  be  invalid  ab  initio, the same vagueness of the ground is nevertheless      justi- ciable   at  the  later  stage  when  they   are.   communi-

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cated,  so  that  if  vagueness  renders  the  making  of  a representation difficult the continuance of the detention at once  becomes illegal. Under article 21 no person    can  be deprived   of   his   life  or   personal   liberty   except according   to  procedure  established by  law.   As     ex- plained  in  Gopalan’s  case(1)  procedure  established   by law  means  procedure  enacted  by  the  Legislature,  i.e., State-made  procedural  law  and not  any  rule  of  natural justice.   It  was  pointed  out  that  the  implication  of that article was that a person could be deprived of      his life   or   personal  liberty  provided   such   deprivation was   brought   about   in    accordance   with    procedure enacted  by the appropriate Legislature.  Having so     pro- vided  in  article  21,  the  framers  of  our  Constitution proceeded  to  lay  down  certain  procedural   requirements which,  as  a matter of constitutional  necessity,  must  be adopted   and  included  in  any  procedure  that   may   be enacted by the Legislature and in accordance with      which a person may be deprived of his life or personal    liberty. Those  requirements are set forth in article 22      of  the Constitution.   A  perusal of the several  clauses  of  that article   will   show  that  the   constitutional   require- ments  of  procedure  which  must  be  incorporated  in  any law  for  preventive  detention  relate  to  a  stage  after the order of detention is made under section 3       of  the Preventive    Detention   Act,   1950.    The    order    of detention   being   thus  in   accordance   with   procedure enacted by law which is not inconsistent with, any of    the provisions   of  Part  III  of  the  Constitution   applica- ble  to  that  stage,  the  order  of  detention  cannot  be questioned  unless  there  is proof  of  bad  faith,  either direct  or  indirect.   We  have,  therefore,  to   consider whether   the  detention  validly  brought   about   becomes unlawful   by  reason  of  subsequent  non-compliance   with the  procedural requirements laid down in clause  (5)     of article 22, for if there is such non-compliance, the (1) [1950] S.C.R. 88. 205 detenu  from that moment must be held to be deprived of  his liberty  otherwise than in accordance with procedure  estab- lished  by law and will, therefore, be  entitled to  be  re- leased.     I  am  prepared to concede that there is  some  correla- tion  between the two parts of article 22 (5),  namely,  the communication  of  the grounds on which the order  has  been made  and the making of the representation by  the  detained person. The Constitution insists on the communication of the grounds on which the detention order has been made for  some purpose.  That purpose obviously is to apprise the detenu of the reasons for the order of his detention.  The  communica- tion  of the grounds will necessarily enable him, first,  to see  whether the grounds are at all relevant to  the  object sought to be secured by the Act. If they are not, then  they were no grounds at all and no satisfaction could be  founded on  them.   The very irrelevancy of the grounds  will  be  a cogent proof of bad faith on the part of the authority so as to  make the order itself invalid.  In the next  place,  the disclosure  of  the grounds will tell the detenu  in   which class his suspected activities have been placed and  whether he is entitled to the benefit of having his case scrutinised by  the  Advisory Board. Finally, the communication  of  the grounds  on  which  the order has been made  will  tell  him generally  the reasons for his detention, and  will,  there- fore, be helpful to the detained person in making his repre- sentation  which is also provided for in the tatter part  of

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clause (5).  The fact that there is correlation between  the two  parts  of clause (5) does not, however,  carry  us  any further.  There is no warrant for assuming that the  grounds to be communicated to the detenu are to be a formal  indict- ment  or a formal pleading setting forth a charge or a  case with  meticulous particularity nor is there any warrant  for the  assumption  that the representation has to  be  in  the nature of a defence or written statement specifically  deal- ing with the charge or the case. Indeed, the idea of a trial is  foreign  to the law of preventive detention.   The  very fact  that the provisions of clauses (1) and (2) of  article 22 206 do  not apply to preventive detention clearly  excludes  the idea of a trial before a tribunal.  As I have said, the  grounds  will generally indicate the conclusions  drawn  by the  appropriate  authority with respect  to  the  suspected activities of any particular person and those grounds,  when communicated,  will enable the detenu to make a  representa- tion,  for  he can easily refer to and set  forth  his  real activities  and represent that all his activities are  inno- cent and cannot possibly give rise to the suspicion indicat- ed in the grounds.  To say that clause (5) itself  indicates that  the grounds must be such as will enable the detenu  to make  a representation is to read into clause (5)  something which is not there. It is a re-statement of the first  argu- ment  in a new form and is fallacious. In the  first  place, clause (5) does not in terms say that the authorities  shall communicate such grounds as will enable the detenu to make a representation.  In the second place, the decision in  Gopa- lan’s  case(1) militates against this argument, for  if  the sufficiency of the grounds is not justiciable at the initial stage  when the order is made, as held in that case,  it  is wholly illogical to say that the intention of the  Constitu- tion  is to make the sufficiency of the same grounds  justi- ciable  as soon as they are communicated to the  detenu.  As already  stated, an order made upon satisfaction founded  on vague grounds is quite valid, if the vagueness is not  proof of bad faith. Under clause (5) the authority is to  communi- cate  the  grounds on which the order has been  made.   This will  let the detenu know what operated on the mind  of  the authority when it made the order. If the grounds were  vague it  is the vague grounds that must be communicated,  for  it was  upon those vague grounds that the order had been  made. That  is the express provision of the first part  of  clause (5).   This being the express requirement,  the  implication that  the grounds communicated must be sufficient to  enable the detenu to make a representation cannot be read into  the clause, for that will militate against the express  require- ment. If the order had been made on vague grounds but (1) [1950] S.C. R. 88. 207 the  authority  is  to  communicate  precise and well-formu- lated  grounds which will be sufficient for   the detenu  to make a representation, then the communication will not be of grounds on which the order was  made  but  of something more than  what is   expressly  required.  The express  provision must exclude such an inconsistent implied provision.  Again, clause  (6)of  article 22 gives the authority the  right  to claim privilege against disclosure of facts in public inter- est.    Non-disclosure of  facts  will necessarily make  the grounds,  as  communicated, extremely vague and  devoid   of particulars.   If  the construction of clause (5)  which  is contended for by the detenu’s counsel were correct, then the vagueness  of the grounds resulting from the  non-disclosure

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of  facts  under clause     will entitle the  detenu  to  be released, for that vagueness also will render the making  of a  representation impossible or difficult.  That  will  mean that the claim of privilege given to the authority by clause (6) of article 22 is wholly meaningless and ineffective, and will  defeat its very purpose, for the privilege  cannot  be claimed  except at the peril of releasing the detenu.  Obvi- ously that cannot be the intention.  It must, therefore,  be held  that the vagueness of grounds resulting from  non-dis- closure of facts under clause (6) will not  invalidate   the order of detention, which was initially valid, on the ground that  no  representation can be made on the  basis  of  such vague  grounds.   In that case by claiming  privilege  under clause  (6) the authority can frustrate the claim of  justi- ciability  of the sufficiency of the grounds.  Further,  why should  the  vagueness of grounds  otherwise  brought  about stand  on a different footing ? Clause (5) cannot  mean  one thing  when  the  privilege is claimed and  mean  quite  the opposite  thing  when  no such privilege  is  claimed  under clause  (6).   The initial order is  not  justiciable.   The claim  of  privilege is not justiciable. Why  should  it  be assumed  that the sufficiency of grounds for the purpose  of making  a representation was intended to be justiciable ?  I see no logical reason 27 208 for making an assumption which will introduce an      objec- tive   test  in  a matter  which is prima facie     intended to be purely subjective.       The  argument is then re-stated in the following  fur- ther  modified form.  Clause (5) of article 22  imposes  two obligations  on the authority making an order of  detention, namely,  (i)  that the authority shall, as soon as  may  be, communicate  the grounds on which the order has  been  made, and (ii) that the authority shall afford the earliest oppor- tunity  to the detenu to make a representation  against  the order.   If the order was made as a result  of  satisfaction derived-in  good faith but upon grounds which may be  vague, the order will be perfectly good and cannot be challenged in any court.  Communication of such grounds, even if they  are vague,  will satisfy the first obligation imposed  upon  the authority.  Under the latter part of clause (5) the authori- ty  is  also  under the obligation to  afford  the  earliest opportunity to the detenu to make a representation.  If  the grounds  on which the order has been made were  vague,  then the  second  part of clause (5), independently  and  without reference to the first part of clause (5), impliedly imposes on  the authority  an  obligation  to rectify the defect  of vagueness  by  supplying  particulars so as  to  enable  the detenu  to make a representation. Supplying of  particulars, the  argument concludes, is implicit in the second  part  of clause  (5), for without such particulars the detenu is  not afforded  the  opportunity to make a representation.   I  am unable  to  accept this line of argument.  Under  the  first part  of clause (5) the grounds on which the order has  been made  have to be supplied ’as soon as may be.’  The  measure of  time  indicated by the words ’as soon as  may  be’  must obviously  run  from the date of detention.   Likewise,  the latter part of clause (5) requires affording the detenu  the earliest  opportunity  to make a representation.  From  what terminus a quo is the period indicated by the phrase "earli- est  opportunity "to begin to run ? If that is also  to  run from  the date of the detention, then the two periods  under the two parts of clause (5), 209

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must  necessarily coincide and, therefore, the  question  of supplying further particulars after the grounds are supplied cannot arise.  On the other hand, the natural meaning of the words of the latter part of clause (5), to my mind, is  that the period connoted by the phrase the "earliest opportunity" begins to run from the time the detenu expresses his  desire or  intention  to make a representation.  The  making  of  a representation  is the right of the detenu.  To make or  not to  make a representation is his choice.  Therefore,  it  is only when he decides to make a representation and  expresses his desire or intention to make a representation  that   the earliest   opportunity  is to be afforded to him to make the desired or  intended representation.  Now, if the time is to run after the expression of desire or intention on the  part of  the detenu to make a representation, then  the  earliest opportunity  to  be  afforded to the detenu  can  only  mean affording  him  all  physical facilities to  carry  out  his desire or intention, for the detenu has decided to make  his representation  without any further particulars.   According to the language used in the latter part of clause (5), there is no express provision for supplying particulars.   Suppose the  grounds  on  which the order was made  and  which  were communicated  to the detenu under the first part were  quite precise and sufficient to enable the detenu to make a repre- sentation,  then affording him the earliest  opportunity  to make the representation can only mean giving him all  physi- cal facilities to do so, e.g., by supplying him with  paper, pen and ink and when the representation has been drawn up by him,  by  forwarding the same with due despatch. In  such  a case  there is no question of supplying further  and  better particulars.  Suppose, again, that the grounds on which  the order has been made and which have been communicated to  the detenu are regarded by the authority to be quite precise and sufficient for making a representation, is the authority  to anticipate  that the detenu may find these grounds  insuffi- cient  or  that  being moved in that behalf  the  Court  may consider them insufficient and 210 then,  as soon as the detenu expresses his desire or  inten- tion  to  make a representation. is the  authority  to  keep quiet  and take the risk of the court releasing  the  detenu for the vagueness of the grounds or is he to tell the detenu "just  wait  a  little; I think the  grounds  which  I  have communicated  to you are quite precise and sufficient;  lest you or the court find the grounds insufficient for making  a representation,  I shall supply you with further and  better particulars  so as to enable you to make the  representation ?" The position thus stated is unreal on the face of it.  In my  opinion,  on a plain reading of clause (5) there  is  no justification  for assuming that a second  communication  of particulars  is contemplated either under the first part  or under  the  second  part  of clause  (5).   This  does  not, however, mean that the authority may not supply  particulars either  suo  motu or on the application of the  detenu.  All that  I  say is that clause (5) imposes  no   constitutional obligation   on the authority  to  supply particulars so  as to  remove  the vagueness of the grounds or  to  enable  the detenu  to  make  a  representation,   and  non-supply    of further  particulars does not constitute an  infraction   of any fundamental right.     It  is said that clause (5) of article 22  construed  in the  way suggested above, would render that clause  nugatory for  it will then really guarantee no fundamental  right  at all. I respectfully differ from this view for the  criticism does not appear to me to be well founded.  Communication  of

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the grounds,  even  if vague, will none the less be  helpful to  the detenu in the several ways I have already  mentioned and,  therefore, the right to have the grounds on which  the order has been made communicated to him is a valuable  right which has been recognised as a fundamental right.  Likewise, the right to make a representation is a valuable right which is  guaranteed  by the Constitution.   These  rights  remain unaffected.  If the the provisions of clause (5) of  article 22  of our Constitution on a correct interpretation  thereof are found to be inadequate for the protection of the liberty of 211 the detenus it is their misfortune.  The Constitution  which the people have given unto themselves is the supreme law and must  be  upheld and obeyed whether’ or not  one  likes  its provisions,  inhibitions and necessary   implications.   The court can only draw  the, attention of the Parliament to the lacuna or defect, if any, in the Constitution and in the Act so that the lacuna may be supplied or the defect remedied in the constitutional way.     Our attention has been drawn to a number of cases  where under  various provincial laws and before  the  Constitution the  different High Courts have directed the release of  the detenu on the basis of the vagueness of the grounds.   Those decisions  are, however, distinguishable because  they  were based  on legislation which required the  communication  not only of grounds but also of particulars.  The omission  from our  Constitution  of the provision for  communicating   the particulars  in  addition to the grounds which  were  to  be found  in those laws is significant, for it may be  deliber- ate.   Apart  from  this, however, those  decisions  do  not appear to me to have any bearing on the correct  interpreta- tion of our Constitution or of the Preventive Detention Act. In Iswar Das v. The State(1) the question was not raised  or argued as it was made clear in the judgment itself.     In view of what I have stated above, I am of the opinion that  as the grounds originally communicated to  the  detenu were  relevant to the objects which the Act had in view  and as  there  is no proof of mala fides  the  obligations  cast upon  the  authorities  under article 22 (5) which have been reproduced in section 7 of the Preventive Detention Act have been   fully  complied with.  Even according  to  the  views expressed  by the majority of my colleagues I would be  pre- pared  to  hold that the particulars  subsequently  supplied along with the grounds originally supplied fully enable  the detenu  to make his representation. In my opinion there  has been  no  contravention  of the fundamental  rights  of  the detenu. I would, therefore, (1) Not reported. 212 allow  this  appeal and reverse the decision of  the  Bombay High Court.                                   Appeal allowed.   Agent for the appellant: P.A. Mehta.   Agent for the respondent: V.P.K. Nambiyar.