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PETITIONER: A.   K. GOPALAN

       Vs.

RESPONDENT: THE GOVERNMENT OF INDIA

DATE OF JUDGMENT: 27/10/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. BACHAWAT, R.S. RAMASWAMI, V.

CITATION:  1966 AIR  816            1966 SCR  (2) 427  CITATOR INFO :  D          1968 SC 327  (3,4)  R          1974 SC 510  (3)

ACT: Defence  of  India  Rules-R.  30(1)(b)-Detention  order   by Governor  of State cancelled-Substituted by Detention  Order of  Central Government-Whether mala  fide-Whether  otherwise legal.

HEADNOTE: At  a  time when the State of Kerala was being  governed  by virtue  of  a Proclamation under Art. 356 by  the  President acting  through  the  Governor, the  petitioners,  who  were members  of  the  Left ’Communist Party  along  with  others numbering  140 in all, were ordered to be detained under  r. 30(1)  (b)  of the Defence of India Rules by orders  of  the Governor of Kerala passed on December 29, 1964.  On March 4, 1965,  the Governor’s orders were cancelled and on the  same date  fresh  orders of detention were made  by  the  Central Government. In petitions under Art. 132, for writs of Habeas Corpus, the petitioners  contended,  inter  alia,  that  the  orders  of detention  of the 29th December were mala fide in that  they were  calculated to damage the prospect of the  petitioners’ party at the impending elections in the State, and that  the orders  of  the 4th March were also mala fide as  they  were made  to  circumvent  the possibility  of  the  petitioners’ release  in  case  their party came  into  power  after  the elections.   It  was  further contended that  there  was  no application of the mind by the Government when the detention orders were passed, for as many as 140 orders were passed on the same day; that there Was no material before the  Central Government  when it passed the orders of March 4, 1965,  and that  if the orders of detention of December 29,  1964  were good,  the only way in which they could be cancelled was  by release of the petitioners and they could not be replaced by other orders of detention. HELD : The petitioners’ detention under the orders passed on March 4, 1965 was legal.

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It  is  well  settled that in dealing with  a  petition  for habeas  cot-pus the courts has to see whether the  detention on  the  date on which the application is made is  legal  if nothing  more  has  intervened  between  the  date  of   the application and the date of hearing.  Accordingly, the court would  only  consider the legality of the orders  passed  on March 4, 1965. [430 C-D, E] It  could not be said that the detention orders were  passed mala fide if the Central Government was satisfied that  with a view to preventing the petitioners from acting in a manner prejudicial to the defence of India, etc., it was  necessary to detain them. [430 F-G] There  was  no reason to disbelieve the affidavit  filed  on behalf of the Government of India that it was satisfied with respect   to  each  individual  person  detained  that   his detention wag necessary; and that there was meterial  before it on which it came to its conclusion. [431 E, H] 4 2 8 There was nothing illegal in the President functioning under the  Proclamation  withdrawing the’ orders of  detention  of December  29,  1964 and thereafter  the  Central  Government passing the orders of detention of its own on the same  day. it  was  not necessary to carry out the empty  formality  of release from jail under the orders of cancellation and  then to  arrest the person released immediately they came out  of jail and to serve on them the, new orders of detention dated March 4, 1965. [432 H] Smt.   Godavari  Shamrao Parulekar v.  State  Maharashtra  : [1964] 6 S.C.R. 446. referred to.

JUDGMENT: ORIGINAL  JURISDICTION  : Writ Petitions Nos. 51 and  53  of 1965. Petitions under Art. 32 of the Constitution of India for the enforcement of the Fundamental Rights. N.   C.  Chatterjee, M. R. K. Pillai, M. S. K. Aiyangar,  D. P. Singh, R. K. Garg, S. C. Agarwala, M. K. Ramamurthi,  for the petitioner (in W.P. No. 51). Petitioner in (W.P. No. 53) appeared in person. Niren De, Additional Solicitor-General, N. S. Bindra, B.  R. G. K. Achar and R. N. Sachthey, for the respondent (in  both the petitions). Interveners (in W.P. No. 53) appeared in person. The Judgment of the Court was delivered by Wanchoo,  J.  These  two  petitions under  Art.  32  of  the Constitution  for  a  writ of  habeas  corpus  raise  common questions and will be dealt with together.  The main  points raised in these petitions have been dealt with in K.  Ananda Nambiar  v.  Chief  Secretary,  Government  of  Madras   and others(1)  in which judgment is being delivered  today.   It remains  now  to  consider  the  other  points  that   arise specially in these petitions. The petitioners are members of the Left Communist Party  and were ordered to be detained along with others numbering  140 in  all  under r. 30(1) (b) of the Defence  of  India  Rules (hereinafter  referred  to as the Rules) by  orders  of  the Governor  of  Kerala  passed  on  December  29,  1964.    In pursuance  of these orders the petitioners were arrested  on December  30,  1964.  At that time the State of  Kerala  was being  governed  by  virtue  of  the  Proclamation  of   the President  dated September 10, 1964.  By  this  Proclamation the  President  assumed  to himself  all  functions  of  the Government

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(1)  [1966] 2 S.C.R. 178.                             429 of  the  State  of  Kerala  and  all  powers  vested  in  or exercisable by the Governor of that State and declared  that the  powers  of the legislature of the said State  would  be exercisable  by or under the authority of  Parliament.   The Proclamation  also  provided  that in the  exercise  of  the functions  and powers assumed by the President with  respect to  the governance of the State, the President would act  to such  extent as he thought fit through the Governor  of  the said  State.  Certain other incidental provisions were  also made  in  the  Proclamation with which however  we  are  not concerned.  The case of the petitioners is that these orders of  detention were mala fide inasmuch as a general  election was  going  to be hold in Kerala in the beginning  of  March 1965.   In  order  to  damage  the  prospects  of  the  Left Communist  Party in the election and to improve that of  the Congress Party these orders of detention were made under the Rules. After  the  elections were over, the  Left  Communist  Party emerged   as  the  largest  single  party.   There  was   an apprehension  that if the Proclamation was withdrawn  and  a party   government  came  into  power  in  the  State,   the petitioners   and  others  like  them  might  be   released. Consequently it is said that on March 4. 1965, the order  of the  Governor  dated  December 29, 1964  was  cancelled  and another  order was made on the same date (namely,  March  4, 1965) by the Central Government in the name of the President ordering  the detention of the petitioners under the  Rules. The  petitioners contend that this order was also mala  fide as  it  was  made  to  circumvent  the  possibility  of  the Petitioners  release  in case a party-government  came  into power  in  the  State of Kerala after  the  elections.   The petitioners further contend that there was no application of the mind of the authority when the orders of’ detention were passed  on December 29, 1964 and March 4, 1965.  Further  it is  contended that there was no material before the  Central Government on March 4, 1965 on the basis of which the orders of detention could be passed and therefore the orders passed on that date were illegal.  Lastly, it is urged that if  the orders  of detention passed on December 29, 1964 were  good, the only way in which they could be cancelled was by release of  the petitioners and they could not be replaced by  other orders of detention.  It is further urged that the order  of cancellation was passed on March 4, 1965 and so was the  new order  of  detention; but both these orders were  served  on them on March 6, 1965.  It is said that the Governor’s order dated  December 29, 1964 having been cancelled on  March  4, 1965  came  to an end that day while the  President’s  order having been served on the petitioners’ on March 430 6,  1965  began  from that day and therefore  there  was  no warrant -for detention between March 4 and March 6, 1965. Replies have been filed on behalf of the Government of India traversing all the allegations so far as detention under the order  dated March 4, 1965 is concerned.  No reply has  been filed  on behalf of the Governor of Kerala with  respect  to the detention order of December 29, 1964 for the reason that the  State,  of  Kerala  was  not  made  a  party  to  these petitions.   The  said  orders have  not  been  specifically challenged as they were not in force when the petitions were made. It  is  well-settled  that in dealing with  a  petition  for habeas corpus the court has to see whether the detention  on the  date on which the application is made to the  court  is

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legal,  if nothing more has intervened between the  date  of the  application and the .date of hearing.  In  the  present case  the  applications were made to this  Court  after  the orders  dated  March  4,  1965  had  been  .passed.   It  is therefore  unnecessary  to  consider  the  validity  of  the detention orders made on December 29, 1964, for those Orders are  no longer in force and the petitioners are detained  by orders passed on March 4, 1965.  We shall therefore consider only  the grounds urged against the validity of  the  orders passed on March 4, 1965. The first point that is urged is that these orders are  mala fide  inasmuch  as  they  were  passed  to  circumvent   the possibility  of  the petitioners’ being released in  case  a party  government  came into power in the  State  of  Kerala after the elections in the beginning ,of March 1965.   These allegations  have  been  denied in the  affidavit  filed  on behalf  of  the Government of India.  But  apart  form  this denial we fail to see how the orders passed on March 4, 1965 can  be said to be mala fide if the Central  Government  was satisfied  that  with a view to preventing  the  petitioners from acting in a manner prejudicial to the defence of India, civil  defence,  public  safety  and  public  order  it  was necessary  to  detain them.  It has been clearly  stated  on behalf  of  the Government of India that  on  the  materials placed  before it is was so satisfied before it  passed  the orders  dated March 4, 1965.  In the face of this  affidavit on  behalf of the Government of India it cannot possibly  be said that the orders passed on March 4, 1965 were mala fide, even  if  we  were  to  assume  that  there  was  any   such possibility   of  release  as  has  been  alleged   by   the petitioners, though that has also been ,denied on behalf  of the Government of India.  We therefore reject 431 the contention that the orders passed on March 4, 1965 were mala fide. Then  it is urged that there was no application of  mind  by the Government of India before the- orders in question  were passed,  for as many as 140 orders were passed on  the  same day and that shows that mind could not have been applied  to each  individual case before so many orders were passed  all at  once  on one day.  We are of opinion that  there  is  no force  in  this convention either. The reply  on  behalf  of Government of India in this connection is that the  question as  to the detention, of the persons who were ordered to  be detained  on  March 4, 1965 was under consideration  of  the Government  of  India.  for quite some time  and  that  only detention  orders were passed on one day.  It has also  been stated  on  behalf of the Government of India  that  it  was satisfied with respect to each individual person ordered  to be  detained on March 4, 1965 that detention  was  necessary for   reasons  already  set  out  and  it  was  after   such satisfaction  that  the  orders  were  passed  though   they happened  to  be  -.passed  on the same  day.   We  are  not therefore  prepared to accept from the simple fact  that  as many as 140 orders were passed on the same day there was  no satisfaction  of  the, Government of India with  respect  to each  individual  case. We have no reason to hold  that  the affidavit filed on behalf of the Government of India in this respect  should not be believed.  This contention must  also fail. Then  it  is  urged that there was no  material  before  the Central  Government before it passed the orders on March  4, 1965.  This allegation has also been denied on behalf of the government  of  India.   The allegation  is  that  the  file relating to these detenus must have been with the Government

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of Kerala in Trivandrum till March 4, 1965 and therefore the Government  of  -India passed the orders on  March  4,  1965 without any material before it.  The reply of the Government of  India is that the file pertaining to the  activities  of the  petitioners  and  others like  them  and  the  material relating  thereto were before the Government of  India  when the orders of March 4, 1965 were passed.  We fail to see why there could not be two, files relating to the activities  of the  ’petitioners  one  with the Government  of  Kerala  and another  with the Government of India., At any rate  it  has been  emphatically asserted on behalf of the  Government  of India  that papers concerned activities of  the  petitioners and  others like them were with Government of India  and  it was  after  the government had satisfied itself  from  those papers as to the likely prejudicial. activities of the Sup.  Ci/66-14 4 32 petitioners that it passed the orders in question.  There is therefore  no  force  in this contention either  and  it  is hereby rejected. We  now  come to the cancellation of  the  detention  orders dated December 29, 1964 on March 4, 1965 and the service  of the  orders of cancellation as well as the fresh  orders  of detention  passed  on  March  4,  1965.   We  have   already indicated  that  when the orders of December 29,  1964  were passed the President had assumed all functions of Government of the State of Kerala and the Governor was the agent of the President  in the matter of governance of the State to  such extent  as  the President thought fit to  act  through  him. Therefore the order of the Governor dated December 29,  1964 was  in the circumstances the order of the President  acting through  the agency of the Governor of Kerala in respect  of the governance of the State and it was open to the President to cancel the order passed by his agent and that is what  he did on March 4, 1965.  In the circumstances the cancellation cannot be assailed as illegal.  But it is urged that if  the orders  of detention passed on December 29, 1964  were  good orders,  they  could not be cancelled except by  release  of detenus.   We cannot accept this contention.   These  orders were  passed when the Government of the State of Kerala  was being  carried  on under the Proclamation of  September  10, 1964.   That  did not prevent the  Central  Government  from deciding  whether it should itself detain these persons  who had till then been detained under the orders of December 29, 1964.  If it decided to do so we cannot see anything illegal in  this  action.  Further as the Government of  Kerala  was functioning   under   the  President  by   virtue   of   the Proclamation,  the  -decision of the Central  Government  to detain these persons for itself could be given effect to  by asking  the President to cancel the orders of  the  Governor dated December 29, 1964.  Thereafter the Central  Government could  pass  the  order  of March  4,  1965  detaining.  the petitioners  and others like them.  Even where -Persons  are detained  by orders of the State Government we can see 1  no illegality  in  the  Central  Government  asking  the  State Government concerned to withdraw its order of detention and’ to  detain the persons thereafter by orders of  the  Central Government,  provided the State Government is  agreeable  to withdraw  its  order  of  detention.   Therefore  there  was nothing  illegal  in  the President  functioning  under  the Proclamation of September 10, 1964 withdrawing the orders of detention  of December 29, 1964 and thereafter  the  Central Government passing the orders of detention of its own on the same  day.   It  was not necessary to carry  out  the  empty formality of release from jail under the orders

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433 of  cancellation  and then to arrest  the  persons  released immediately  they came out of jail and to serve on them  the new  order  of  detention dated March 4, 1965  :  (see  Smt. Godavari Shamrao Parulekar v. The State of Maharashtra) We  do  not think it necessary to decide the nature  of  the detention  between  March 4 and March 6, 1965.   Nor  is  it necessary in the present cases to decide whether an order of cancellation comes into effect immediately while an order of detention  takes  effect from the date it  is  communicated. What we have to see is whether the detention under the fresh order  passed on March 4, 1965 was legal when  the  petition for  habeas  corpus was made.  As to that we have  no  doubt that it is legal. We therefore dismiss the petitions. Before  we leave these cases we would like to refer  to  the inordinate  delay that took place between the making of  the petitions  to the jail authorities and their  reaching  this Court.   The petitions were made on March 15, 1965 but  they reached  this  Court on April 12, 1965, exactly  four  weeks later.   We consider that ordinarily one week is enough  for any  such  petition to reach this Court, from  any  part  of India.   We  also consider that it is the duty of  the  jail authorities  to send such petitions directly and at once  to this  Court  and indeed to the High Courts  where  they  are addressed  to  them.  We trust that there will  be  no  such lapse again in future. Petitions dismissed. (1) [1964] 6 S.C.R. 446. 434