http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: DURGADAS  SHIRALI

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT: 12/11/1965

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

CITATION:  1966 AIR 1078            1966 SCR  (2) 573  CITATOR INFO :  RF         1967 SC 483  (5)  RF         1976 SC1207  (192,366,477)

ACT: Defence  of  India Rules, 1962,  rule  30--Detention  under- Membership of a political party not declared illegal whether relevant consideration for ordering detention.

HEADNOTE: The petitioner was -detained under rule 30 of the Defence of India Rules 1962, by an order of the District Magistrate and the  necessary  formalities were gone through.  He  filed  a petition under Art. 32 and contended : (1) The order of  the District Magistrate was mala fide as he had not applied  his mind to tile specific activities of the petitioner and there was complete absence of material before him to suggest  that the  conduct of the petitioner would be prejudicial  to  the defence  of India etc. (2) One of the grounds  of  detention mentioned in the order was that the petitioner was a  member of the Leftist Communist Party of India and Secretary of one of its branches.  This consideration was not relevant as the said  party had not been declared illegal or banned  by  the Government. HELD  : (i) It was open to the petitioner to  challenge  his detention  on the ground of mala fide or on the ground  that all  or  any  of  the grounds  mentioned  in  the  order  of detention  were irrelevant.  Such pleas were not covered  by Art.  358 and were outside the purview of  the  Presidential Orders under Art. 359(1). [576 D] Makhan Singh Tarsikka v. State of Punjab, [1964] S.C.R.  797 referred to. (ii) Taking into account the affidavit filed by the District Magistrate  it could not be said that he did not  apply  his mind  to the specific activities of the petitioner  or  that there was no material before him to justify the order.  [577 C] (iii)     It was not correct to State that the activities of the  Leftist  wing  of the Communist  Party  cannot  in  any circumstances be illegal and would necessarily be irrelevant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

merely because the Government of India has not declared  the Party  illegal  or  imposed a ban.  In-  the  light  of  the reports  received by the District Magistrate  the  political association  of  the  petitioner and  his  membership  of  a particular  political group was a relevant consideration  in the matter of detention of the petitioner.  This ground  had close  and proximate connection with the security  of  State and  maintenance of public order as contemplated by rule  30 of the Defence of India Rules. [578 A-C]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 95 of 1965. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental Rights. R.   K. Garg, M.  K. Ramamurthi, S. C.  Agarwal and D. P. Singh,    for the petitioner. G.   S.  Kasliwal,  Advocate-General, Rajasthan  and  R.  N. Sachthey, for respondent no. 2. 574 The Judgment of the Court was delivered by Ramaswami,  J. In this case the petitioner-Durgadas  Shirali has  obtained  a rule calling upon the respondents  to  show cause why a writ of habeas corpus should not be issued under Art.  32  of  the Constitution directing  his  release  from detention  under an order passed by the District  Magistrate of  Bhilwara, Rajasthan under Rule 30(1) (b) of the  Defence of India Rules.  Cause has be= shown by the Advocate-General of Rajasthan on behalf of the respondents to whom notice  of the rule was ordered to be given. The petitioner was arrested on January 2, 1965 at Jaipur  in Pursuance  of an order dated December 29, 1964 made by  res- Pondent  no. 3, Shri Narayan Das Mehta, District  Magistrate of Bhilwara which states as follows :               "It is reliably brought to my notice that  the               Leftist  wing of the Communist Party has  been               carrying   on  antinational  and   pro-Chinese               propaganda and are preparing to act as Pekings               member.   The  party  having  been  formed  at               Peking’s  behest are preparing for  widespread               agitation  with  the  object  of  establishing               communist  regime by subversion and               violence.   1,   therefore,   come   to    the               irresistible   conclusion  that  the   Leftist               Communist  Party constitutes a real danger  to               external and internal security of the  country               and  that  it  has become  necessary  to  take               immediate action.               I am also satisfied from the report that  Shri               Durgadas Shirali of Bhilwara is the  Secretary               of the Leftist Wing of the Communist Party and               he  is  likely  to  act  in  manner  which  is               prejudicial to the Defence of India and  Civil               Defence,   India’s  relations   with   Foreign               powers,  public safety and the maintenance  of               the public order.               I,  Narayan  Das Mehta,  District  Magistrate,               Bhilwara  in exercise of the powers  delegated               to  me  under  rule 30(1) clause  (b)  of  the               Defence of India Rules 1962 vide Government of               Rajasthan      Notification      No.1       F.               7/1(16)Home(A.Cr. 1)63 dated the 4th November,               1963  and  all other powers enabling  in  that               behalf  direct the Superintendent  of  Police,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

             Bhilwara  that  Shri  Durga  Das  Shirali   be               arrested  and  detained in the  Bhilwara  Jail               until further orders." On  January 13, 1965 the orders of the  District  Magistrate was reviewed by the Reviewing Authority who recommended that 575 the  detention  order  dated December  29,  1964  should  be confirmed.  The  State Government  confirmed  the  detention order  by  its order No.  F7/1(19)Home(A-Cr.   (I)/65  dated January 22, 1965. On  behalf  of the petitioner it was contended by  Mr.  Garg that the District Magistrate had not applied his mind to the specific activities of the petitioner and there was complete absence  of  material  before  the  District  Magistrate  to suggest  that  the  conduct  of  the  petitioner  would   be "prejudicial  to  the Defence of India  and  Civil  Defence, India’s relations with foreign powers, public safety and the maintenance  of  the  public  order".   It  was,  therefore, submitted  on  behalf  of the appellant that  the  order  of detention made by the District Magistrate was mala fide  and illegal.  Mr. Garg submitted, in the second place, that  one of the grounds mentioned in the order of detention was  that the  petitioner  was  a member of the Leftist  Wing  of  the Communist  Party of India and Secretary of the local  branch of that party at Bhilwara.  The Leftist Communist Party  has been carrying on antinational and pro-Chinese propaganda and the District Magistrate was of the opinion that the  Leftist Communist  Party,  therefore, constituted a real  danger  to external  and  internal  security of the  country.   It  was submitted by Mr. Garg that the Leftist wing of the Communist Party  had  not  been  declared illegal  or  banned  by  the Government of India and the membership of the petitioner  of the  Leftist Communist Party of India was, therefore, not  a relevant ground for the order of detention. Before proceeding to deal with these points raised on behalf of  the petitioner it is necessary to state that  in  Makhan Singh  Tarsikka  v. The State of Punjab(1)  this  Court  had occasion to consider the legal effect of the proclamation of Emergency  issued by the President on October 26,  1962  and two  orders of the President-one dated November 3, 1962  and the other dated November 11, 1962 issued in exercise of  the powers conferred by cl. (1) of Art. 359 of the Constitution. It was held by this Court that the sweep of Art. 359(1)  and the  Presidential  Order issued under it is wide  enough  to include  all  claims  made  by  citizens  in  any  Court  of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce fundamental rights under Arts. 14, 19, 21 and 22. It was pointed out that during the pendency of the Presiden- tial  Order  the validity of the Ordinance or  any  rule  or order  made  thereunder cannot be questioned on  the  ground that it contravenes (1)[1964] 4S.C.R. 797 576 Arts. 14, 21 and 22.  But this limitation cannot preclude  a citizen  from challenging the validity of,the, Ordinance  or any  rule or order made thereunder on any other ground.   If the  petitioner  seeks  to challenge  the  validity  of  the Ordinance, rule or order made thereunder on any ground other than  the  contravention  of  Arts.  14,  21  and  22,   the Presidential  Order cannot come into operation.  It  is  not also  open  to challenge the Ordinance rule  or  order  made thereunder  on  the  ground of  contravention  of  Art.  19, because as soon as a Proclamation of Emergency is issued  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

the President under Art. 358 the provisions of Art. 119  are automatically suspended.  But a petitioner can challenge the validity of the Ordinance, rule or order made thereunder  on a  ground  other  than those covered by  Art.  358,  or  the Presidential  Order  issued  under  Art.  359(1).   Such   a challenge is outside the purview of the Presidential  Order. For instance, a citizen will not be deprived of his right to move an appropriate Court for a writ of habeas corpus on the ground  that  his  detention has  been  ordered  mala  fide. Similarly,  it will be open to the citizen to challenge  the order  of  detention on the ground that any of  the  grounds given  in the order of detention is irrelevant and there  is no  real and proximate connection between the  ground  given and the object which the legislature has in view. It  is  contended,  in the first place,  on  behalf  of  the petitioner,  that the order of detention is bad because  the District Magistrate had not applied his mind to the specific activities  of the petitioner.  It was pointed out  that  in the  order of detention the District Magistrate  has  mainly dealt  with  the  activities  of the  Leftist  Wing  of  the Communist Party of India which was carrying on  antinational and   pro-Chinese  propaganda.   The   District   Magistrate proceeds to say that the party was formed at Peking’s behest and  was preparing for widespread agitation with the  object of establishing communist regime by subversion and violence. The  District Magistrate, therefore, reached the  conclusion that  the Leftist Wing of the Communist Party constituted  a real  danger  to  external  and  internal  security  of  the country.   So  far  as  the  petitioner  is  concerned,  the District  Magistrate has described him as Secretary  of  the Leftist  Wing  of the Communist Party and has  proceeded  to state  that he was satisfied that the petitioner was  likely to  act in a manner which was prejudicial to the Defence  of India  and  Civil Defence, India’s  relations  with  foreign powers,  public  safety and the maintenance  of  the  public order.  In reply to the petition of the detenu the  District Magistrate‘, Bhilwara has filed an affidavit in this  Court. In  paragraph 3 of the a davit the District  Magistrate  has stated that he was satisfied from the 577 reports  -that the petitioner was carrying on  anti-national and  pro Chinese propaganda as a member of the Leftist  Wing of  the  Communist  Party.   In  paragraph  5  the  District Magistrate has stated that he passed the order of  detention after satisfying himself on the reports that the  petitioner was the Secretary of the Leftist Wing of the Communist Party of India, Bhilwara branch and that he was likely to act in a manner  prejudicial to Defence of India and  Civil  Defence, India’s relations with foreign powers, public safety and the maintenance  of public order.  In view of the  affidavit  of the District Magistrate it is not possible for us to  accept the  argument of Mr. Garg that the District  Magistrate  did not  apply  his  mind  to the  specific  activities  of  the petitioner and that he made the order of detention solely on the  ground that the Leftist wing of the Communist Party  of India   was  carrying  on  anti-national   and   pro-Chinese propaganda. It  was  next argued on behalf of the  petitioner  that  the Leftist  wing of the Communist Party of India has  not  been declared  illegal by the Government of India and  the  party has  not  been banned.  It was  submitted,  therefore,  that membership  of  that party was not per se  illegal  and  the order  of  detention  of the petitioner  cannot  be  legally based upon this ground.  In other words, it was submitted by Mr.  Garg  that  the ground. that  the  petitioner  was  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

Secretary  of  the Leftist Wing of the  Communist  Party  of India  was  irrelevant  for the purpose of Rule  30  of  the Defence  of India Rules.  The argument was put forward  that if this ground was irrelevant for the purpose of the Rule or was  wholly illusory, the order of detention as a whole  was vitiated  and must be quashed by grant of a writ  of  habeas corpus.  In support of his argument Mr. Garg referred to the decision of this.  Court in Shibban Lal Saksena v. The State of Uttar Pradesh(,-).  We are unable to accept the  argument of Mr. Garg as correct.  It is not correct to state that the activities of the Leftist wing of the Communist Party cannot in  any  circumstances be illegal and would  necessarily  be irrelevant  merely because the Government of India  has  not declared the party illegal or imposed a ban.  In considering the  question whether the petitioner was acting in a  manner prejudicial  to the defence of India within the  meaning  of Rule  30  of the Defence of India Rules it is  open  to  the District  Magistrate to take into account the reports  which he  had  received  as to the political  association  of  the petitioner,   his  political  friends  and   his   political loyalties.    In  considering  the  circumstance  that   the petitioner was a member of the Leftist wing of the Communist (1)  [1954] S.C.R. 418. 578 Party  of  India which, according to the said  reports,  was preparing  for  a widespread agitation with  the  object  of establishing communist regime by subversion and violence the District  Magistrate  was  not  applying  his  mind  to  any irrelevant   circumstance  with  regard  to  the  need   for detention  of  the petitioner under the  Defence,  of  India Rules.  In our opinion, in the light of the reports received by the District Magistrate the political association of  the petitioner  and  his membership of  a  particular  political group is a relevant consideration in the matter of detention of  the  petitioner.  This ground has  close  and  proximate connection  with  the security of State and  maintenance  of public  order as contemplated by Rule 30 of the  Defence  of India Rules.  In our opinion,Mr. Garg is unable to make good his submission on this aspect of the case. For  these  reasons  we hold that  the  petitioner  has  not made  .out a case for the grant of a writ under Art.  32  of the   Constitution.    The  Writ  Petition  fails   and   is accordingly dismissed. Petition dismissed. 5 79