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PETITIONER: G. M. SHAH

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR

DATE OF JUDGMENT30/10/1979

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) TULZAPURKAR, V.D.

CITATION:  1980 AIR  494            1980 SCR  (1)1104  1980 SCC  (1) 132

ACT:      Jammu and Kashmir Public Safety Act, 1978 Sections 8(2) and 8(3)-Scope of-"Law and Order," "Public Order," "Security of the State"- Meaning of.

HEADNOTE:      The petitioner’s  son (the  detenu) was  detained under section 8(2)  of the  Jammu and  Kashmir Public  Safety Act, 1978 by  an order  of  the  District  Magistrate,  Anantnag, Sections 8(1)(a)(1)  and 8(2)2  of the  Act state  that  the Government or the District Magistrate may, if satisfied with respect to  any person  that with  a view  to preventing him from acting in any manner prejudicial to the security of the State or  the maintenance of the public order, make an order directing that such person be detained.      The detenu was informed that the order of detention had been passed with a view to preventing him from acting in any manner prejudicial to "the maintenance of public order". The grounds of  detention amongst  others stated that the detenu had (i) indulged in subversive activities (ii) organised the burning of  religious places  to create  chaos in  the State (iii) disturbed the public order (iv) tried to elicit public opinion in  favour of  a person  sentenced to death and that his remaining at large was prejudicial to the maintenance of public order and also the "security of the State".      The petitioner  challenged the  grounds of detention as vague.      Allowing  the   petition  under   Article  32   of  the Constitution  and   directing  the  release  of  the  detenu forthwith. ^      HELD: An  attempt on  the part of any citizen to elicit public opinion  in favour of a person who has been sentenced to death  and  to  save  him  from  the  gallows  cannot  be considered as  acting  in  any  manner  prejudicial  to  the security of  the State because it cannot be considered as an attempt to  overthrow or  overawe the Government established by law in the State. The fact that the detenu had sent hand- bills and  booklets to  arouse the  sentiments of the people against the  proposed execution  of Z.  A. Bhutto  cannot be considered as  an act  prejudicial to  the security  of  the State because  the State of Jammu and Kashmir had nothing to

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do with  the proposed  execution. The other grounds are also vague in  so far as the question of security of the State is concerned. [1111 B-E]      A combined  reading of  the order  of detention and the grounds furnished  to the detenu shows that at the time when the order  was made,  the District  Magistrate either had no material relevant  to the  security of the State on which he could act or even if he had information of those grounds, he did not  propose to act on it. He, however, tried to support the order  of detention  by stating  in the  course  of  the grounds that  by the detenu remaining at large, the security of the State was likely to be prejudiced. [1111 G-H] 1105      The expressions  "law and  order", "public  order"  and "security of  the State"  are distinct  concepts though  now always separate. Whereas every breach of peace may amount to disturbance of  law and  order, every  such breach  does not amount to  disturbance of  public  order  and  every  public disorder may  not prejudicially  affect the "security of the State." [1112 A-B]      Romesh Thapper  v. The  State of  Madras, [1950] S.C.R. 594 at p. 600 applied.      An act  may affect  law and  order but not public order just as  an act  may affect public order but not security of State. It  is for  this reason  that  the  Act  defines  the expressions  "acting   in  any  manner  prejudicial  to  the security of the State" and "acting in any manner prejudicial to the  maintenance of public order’ separately. An order of detention made  either  on  the  basis  that  the  detaining authority is  satisfied that  the person  against  whom  the order is  being made  is acting in any manner prejudicial to the security  of the  State or  on  the  basis  that  he  is satisfied  that   such  person   is  acting  in  any  manner prejudicial to  the maintenance of public order but which is attempted to  be supported  by placing  reliance on both the bases in  the grounds furnished to the detenu has to be held to an illegal one. [1113 C-D]      Dr. Ram  Manohar Lohia  v. State  of  Bihar  &  Others, [1966] 1  S.C.R. 709.  Bhupal Chandra  Ghosh v.  Arif Ali  & Others [1974] 2 S.C.R. 277 and Satya Brata Ghose v. Arif Ali JUDGMENT:

&      ORIGINAL JURISDICTION: Writ Petition No. 1125 of 1979      (Under Article 32 of the Constitution)      M. K. Ramamurthy and R. C. Pathak for the Petitioner.      K.K. Venugopal,  Addl.  Solicitor  General,  and  Altaf Ahmed for the Respondent.      The Judgment of the Court was delivered by      VENKATARAMIAH, J-At  the conclusion  of the  hearing of the  above  petition  on  October  24,  1979,  we  made  the following order:-           "The  detenu   Shabir  Ahmed  Shah  who  has  been      detained by  the order  dated the 23nd May, 1979 of the      District  Magistrate,   Anantnag  is   directed  to  be      released forthwith. Reasons would follow."      The reasons  in support  of the  above order  are given below:-      The above petition under Article 32 of the Constitution is filed  by the  petitioner requesting  this Court to quash the order  of detention bearing No. 299-304/ST dated May 23, 1979 passed  by the  District Magistrate,  Anantnag  in  the State of  Jammu &  Kashmir under section 8(2) of the Jammu &

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Kashmir Public  Safety  Act,  1978  (Act  No.  VI  of  1978) (hereinafter  referred   to  as  ’the  Act’)  directing  the detention 1106 of his  (petitioner’s) son,  Shabir Ahmed  Shah (hereinafter referred to as ’the detenu’). The relevant part of the order of detention reads:           "Whereas  I,   Omar  Jan,   District   Magistrate,      Anantnag, am  satisfied that  with a view to preventing      Shri Shabir  Ahmed Shah  s/o Ghulam  Mohammad Shah  r/o      Kadipora,  Anantnag,   from  acting   in   any   manner      prejudicial to  the maintenance  of public order, it is      necessary so to do;           Now,  therefore,   in  exercise   of  the   powers      conferred by  section 8  (2) of  the Jammu  and Kashmir      Public Safety  Act, 1978  (Act No. VI of 1978), I, Omar      Jan, District  Magistrate, Anantnag  hereby direct that      the said  Shri Shabir Ahmed Shah be detained in Central      Jail, Srinagar.                                                         Sd/-                                                   (Omar Jan)                                         District Magistrate,                                         Anantnag".      The detenu  was informed  in pursuance of section 13 of the Act that his detention had been ordered on the following grounds:-           "1. You  originally belonged to Young Man’s LEAGUE      (Hamid group)  which was  an anti-national  and pro-Pak      organization of  youngmen. You alongwith your erstwhile      associates were responsible for creating subversion and      danger to the maintenance of public order by organizing      antinational demonstrations and protests.           2. Later in the year 1975 when the Peoples’ League      was formed  with the  avowed object  of challenging the      accession of the State of India and also for furthering      the cause  and interest  of Pakistan  in the State, you      joined the party as an active member. You are currently      the General  Secretary of  the Peoples’ League. You and      Your party  have shown  open sympathy and have tried to      elicit public  opinion in  favour of  Mohammad  Maqbool      Bhat, a  die-hard pro-Pak  subversive element  who  has      been sentenced  to death  on two  occasions for murder,      espionage  and   sabotage  and  is  currently  awaiting      execution. Pamphlets  and posters  have been  issued by      the Peoples’  League in  support  of  Mohammad  Maqbool      Bhat.           3.  In  January  and  February,  1970  you  joined      subversive elements  of Sopore  area and  organized the      burning of reli- 1107      gious places in order to create chaos in the State. The      conspiracy was,  however, unearthed by Baramulla Police      in time  before much damage was done. You were arrested      in Case FIR No. 38/79 u/s 436 RPC P/S Sopore registered      in this connection.           4. Much  before the  execution of Mr. Z. A. Bhutto      in Pakistan,  you and  your party  sent hand-bills  and      booklets to arouse the sentiments of the people against      the State  Govt. You alongwith your party members moved      secretly to  maintain  contacts  with  disgruntled  and      undesirable elements  in the valley and to arouse their      base sentiments in this connection and context.           5. In  the third  week of  March, 1979,  when some      unemployed youth  started hunger  strike at  Lal Chowk,      Anantnag, you  lent support  to the  CPI ML  and  other

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    parties who  were out  to create  disturbances  and  to      incite the youth to resort to violence and disorder.           6. On 29-3-1979 you alongwith your colleagues held      a meeting  and  decided  to  disturb  public  order  in      Anantnag town  in the  context of pro-Bhutto sentiments      and demonstrations the next day.           7. Consequently  on 30-3-1979  you alongwith  your      associates moved  stealthily to warn the shopkeepers to      close their  shops. You  also incited the people to put      road blocks  and stop  traffic. You and your associates      organized a  strike in  Anantnag College when it opened      on 30th. Later in the day you alongwith your associates      incited  youths   to  resort  to  violence  and  create      disorder. Consequently  a  lot  of  violence  including      murderous assault on the Police and the Magistracy took      place in  Anantnag town  in which  many officials  were      seriously  injured.   A  case   FIR   No.   98/79   u/s      302/148/336/332/149/120-B RPC  was registered. You went      underground and  could not  be arrested  for quite some      time but  you were  arrested in the case later. You are      presently on  bail  in  this  case.  On  7-4-1979  when      normalcy was  being restored in Anantnag town and shops      were  being   opened,  you  alongwith  your  associates      appeared near  Lal Chowk and threatened shop-keepers to      close shops.  Their shouting and running had the effect      of creating tension in the 1108      town and  many shops  were closed.  Police  efforts  to      arrest you could not succeed as you ran away in the by-      lanes and later went underground.           8. More  recently you have been collaborating with      antinational, pro-Pak  elements who come to hold secret      talks and  links with  you. You  are  a  dangerous  and      desparate character  out  to  create  chaos,  disorder,      subversion and  the like  to achieve  your  ends.  Your      remaining at large is prejudicial to the maintenance of      public order  and also  to the security of the State. I      am convinced  that unless  you are  detained  there  is      every likelihood  that  you  will  continue  to  create      confusion in  public  minds  and  instigate  people  to      lawlessness  and   disturbance  of   public  peace  and      tranquility."      (The paragraphs  are numbered  by us for the purpose of convenience).      It may  be noted  that whereas  the order  of detention stated that it had been passed with a view to preventing the detenu  "from  acting  in  any  manner  prejudicial  to  the maintenance of  public order",  in the last paragraph of the grounds furnished  to the  detenu, it  was stated that "your remaining at  large is  prejudicial to  the  maintenance  of public order  and also  to the  security of  the State". The relevant part  of section 8 of the Act under which the order of detention is passed reads:           "8.  Detention   of   certain   persons.-(1)   The      Government may-           (a) if  satisfied with  respect to any person that      with a view to preventing him from acting in any manner      prejudicial to-           (i)   the security of the State or the maintenance                of the public order, or           (ii) the  maintenance  of  supplies  and  services                essential to the community; or.           (b)  .... ... ... ... ... ... ... ..      it is  necessary so to do, make an order directing that      such person be detained.

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1109      (2) Any of the following officers namely:-           (i) Divisional Commissioners,           (ii) District Magistrates,      may, if  satisfied as  provided in  sub-clauses (i) and      (ii) of  clause (a)  of sub-section  (1), exercise  the      powers conferred by the said sub-section.           (3) For the purpose of sub-section (1),-           (a)   "acting in  any manner  prejudicial  to  the                security   of   the   State"   means   making                preparations for using, or attempting to use,                or using  or instigating, inciting, provoking                or otherwise  abetting the  use of  force, to                overthrow   or    overawe   the    Government                established by law in the State;           (b)   "acting in  any manner  prejudicial  to  the                maintenance of public order" means-           (i)    promoting,  propagating  or  attempting  to                create,  feelings  of  enmity  or  hatred  or                disharmony  on  grounds  of  religion,  race,                caste, community, or region;           (ii) making  preparations for using, or attempting                to use,  or using,  or instigating, inciting,                provoking,  otherwise  abetting  the  use  of                force   where    such   preparation,   using,                attempting, instigating,  inciting, provoking                or abetting, disturbs or is likely to disturb                public order;            (iii) attempting  to commit,  or  committing,  or                instigating, inciting, provoking or otherwise                abetting the  commission of,  mischief within                the meaning  of section  425  of  the  Ranbir                Penal  Code  where  the  commission  of  such                mischief disturbs,  or is  likely to  disturb                public order;           (iv)  attempting  to  commit,  or  committing,  or                instigating, inciting, provoking or otherwise                abetting  the   commission  of   an   offence                punishable with  death  or  imprisonment  for                life or  imprisonment for a term extending to                seven years  or more, where the commission of                such  offence   disturbs,  or  is  likely  to                disturb public order."      It is  seen from  section 8(1) (a) (i) and section 8(2) of the  Act extracted  above  that  the  Government  or  the District Magistrate  may, if  satisfied with  respect to any person that with a view to preventing him 1110 from acting in any manner prejudicial to the security of the State or  the maintenance of the public order, make an order directing that  such  person  be  detained.  The  expression "acting in  any manner  prejudicial to  the security  of the State" is defined in clause (a) of subsection (3) of section 8 of  the Act as making preparation for using, or attempting to use,  or using  or instigating,  inciting,  provoking  or otherwise abetting  the use of force to overthrow or overawe the Government  established by  law in the State. Clause (b) of section 8(3) of the Act defines the expression "acting in any manner  prejudicial to the maintenance of public order". The distinction between the two expressions lies in the fact that while  in the  case of the former, the object of making preparation or instigating or abetting the use of force etc. should  be   with  a  view  to  overthrow  or  overawe  "the Government established  by law in the State", in the case of the latter,  the object of the acts mentioned therein should

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be disturbance of public order.      As already  mentioned, while  the  order  of  detention states that  it was being made with a view to preventing the detenu  from   acting  in  any  manner  prejudicial  to  the maintenance of  public order,  in the  grounds disclosed  to him, it had been stated that the detenu’s remaining at large was prejudicial  to the maintenance of public order and also to the  security of the State. We shall now briefly refer to the nature  of the grounds furnished to the detenu. First we shall deal  with paragraphs  (1), (3)  and (5) to (7) of the grounds. In  paragraph (1) of the grounds, it is stated that the  detenu   alongwith   his   erstwhile   associates   was responsible  for  creating  subversion  and  danger  to  the maintenance of  public  order  by  organizing  anti-national demonstrations  and   protests.  In  paragraph  (3)  of  the grounds, it  is stated  that in  January and February, 1979, the detenu had joined subversive elements of Sopore area and organized the burning of religious places in order to create chaos in  the State.  In paragraph (5) of the grounds, it is stated that in the third week of March, 1979, the detenu had lent support  to the Communist Party of India (ML) and other parties who  were out  to create  disturbances and to incite the youth  to resort  to violence  and  disorder  when  some unemployed  youth   started  hunger  strike  at  Lal  Chowk, Anantnag. In paragraph (6) of the grounds, it is stated that on March  29, 1979,  the detenu had alongwith his colleagues held a  meeting and  decided  to  disturb  public  order  in Anantnag town.  In paragraph  (7) of the grounds, there is a reference to  the detenu  alongwith his  associates inciting the youth  to resort  to violence and create disorder. It is thus clear  that paragraphs  (1), (3)  and (5) to (7) of the grounds, there  is no  reference to  any attempt made by the detenu to  use force  to overthrow or overawe the Government established by 1111 law in the State. Paragraphs (2), (4) and (8) of the grounds are also  in no  way different.  In  paragraph  (2)  of  the grounds, although  there is  reference to the detenu joining Peoples’ League, which had been formed with an avowed object of challenging the accession of the State of Jammu & Kashmir to India  and also  for furthering the cause and interest of Pakistan in  the State,  the act attributed to the detenu is that he  had tried  to elicit  public opinion  in favour  of Mohammad Maqbool  Bhat who  had been  sentenced to death. An attempt on  the part of any citizen to elicit public opinion in favour of a person who had been sentenced to death and to save him  from the gallows cannot be considered as acting in any manner  prejudicial to the security of the State because it cannot  be considered  as  an  attempt  to  overthrow  or overawe the  Government established  by law  in  the  State. Similarly the  act attributed to the detenu in paragraph (4) of the grounds cannot be considered as an act prejudicial to the security of the State as what is alleged therein is that much before  the execution  of Mr. Z. A. Bhutto in Pakistan, the detenu  had sent  hand-bills and  booklets to arouse the sentiments of  the people.  Although it  is stated  that the detenu had  tried to  arouse the  sentiments of  the  people against the State Government, the alleged act on the part of the detenu even if it was true could not be considered to be prejudicial to  the security of the State of Jammu & Kashmir because the  State of Jammu & Kashmir had nothing to do with the proposed  execution of  Mr. Z.  A. Bhutto.  Ground No. 8 which lacks  material particulars  appears to  be a  general one. These  grounds are also vague in so far as the question of security of the State is concerned.

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    It is  thus clear  that none of the grounds supplied to the detenu  falls within  the scope of clause (a) of section 8(3) (1)  of the Act which defines the expression "acting in any manner  prejudicial to the security of the State". It is further seen  that even  though it  is stated in the grounds that the District Magistrate was of the view that the detenu remaining at  large was  prejudicial to  the security of the State also,  he did  not make  the  order  with  a  view  to preventing him  from acting in any manner prejudicial to the security of  the State.  A combined  reading of the order of detention and the grounds furnished to the detenu shows that at the time when the order was made, the District Magistrate either had no material relevant to the security of the State on which he could act or even if he had information of those grounds, he did not propose to act on it. He, however, tried to support  the order  of detention by stating in the course of the  grounds that  by the  detenu remaining  at large the security of the State was likely to be prejudiced. 1112      The expressions  "law and  order", "public  order"  and "security of  the State"  are distinct  concepts though  not always separate. Whereas every breach of peace may amount to disturbance of  law and  order, every  such breach  does not amount to  disturbance of  public  order  and  every  public disorder may  not prejudicially  affect the "security of the State". This  is borne  out from  the observations  made  by Patanjali Sastri, J. in the decision of this Court in Romesh Thappar v. The State of Madras (1) which are as follows:-           "As  Stephen   in  his  Criminal  Law  of  England      observes: Unlawful  assemblies,  riots,  insurrections,      rebellions, levying of war, are offences which run into      each other  and are  not capable of being marked off by      perfectly defined  boundaries.  All  of  them  have  in      common one feature, namely that the normal tranquillity      of  a  civilized  society  is  in  each  of  the  cases      mentioned disturbed  either by actual force or at least      by the  show  and  threat  of  it."  Though  all  these      offences   thus    involve   disturbances   of   public      tranquillity and  are in theory offences against public      order,  the   difference  between  them  being  only  a      difference of  degree, yet  for the  purpose of grading      the punishment  to be inflicted in respect of them they      may be  classified into  different minor  categories as      has been  done by the Indian Penal Code. Similarly, the      Constitution, in  formulating the  varying criteria for      permissible legislation  imposing restrictions  on  the      fundamental rights  enumerated in  article  19(1),  has      placed in  a distinct  category those  offences against      public order  which aim  at undermining the security of      the State or overthrowing it, and made their prevention      the sole  justification for  legislative abridgement of      freedom of  speech and  expression,  that  is  to  say,      nothing less  than endangering  the foundations  of the      State  or   threatening  its  overthrow  could  justify      curtailment of  the rights  to freedom  of  speech  and      expression, while the right of peaceable assembly "sub-      clause (b)"  and (c)  right of  association "sub-clause      (c)" may  be restricted  under clauses  (3) and  (4) of      Article 19 in the interests of "public order," which in      those clauses  includes the  security of the State. The      differentiation is  also noticeable  in Entry 3 of List      III (Concurrent  List) of  the Seventh  Schedule, which      refers to the "security of a State" and "maintenance of      public order"  as distinct subjects of legislation. The      Constitution thus  requires a  line to  be drawn in the

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    field of public order or tranquillity 1113      marking off,  may be,  roughly,  the  boundary  between      those serious  and aggravated  forms of public disorder      which are  calculated to  endanger the  security of the      State and the relatively minor breaches of the peace of      a purely  local significance, treating for this purpose      differences in  degree as  if they  were differences in      kind."      As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar  - Lohia  v. State  of Bihar  & Ors.  one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. ’Law and order’ represents the  largest circle  within  which  is  the  next circle representing  "public order"  and the smallest circle represents "security  of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in  view of  the above  distinction, the  Act defines the expressions  "acting   in  any  manner  prejudicial  to  the security of the State" and "acting in any manner prejudicial to the  maintenance of public order" separately. An order of detention made  either  on  the  basis  that  the  detaining authority is  satisfied that  the person  against  whom  the order is  being made  is acting in any manner prejudicial to the security  of the  State or  on  the  basis  that  he  is satisfied  that   such  person   is  acting  in  any  manner prejudicial to  the maintenance of public order but which is attempted to  be supported  by placing  reliance on both the bases in  the grounds furnished to the detenu has to be held to be  an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors(3).      The order  of detention  is, therefore,  liable  to  be quashed and the detenu is entitled to be set at liberty. The petition is accordingly allowed.      In view  of the above conclusion, we have not gone into the other contention urged by Mr. M. K. Ramamurthi that many of the  grounds furnished  to the  detenu being  vague,  the order of  detention cannot  be supported  even on the ground that it had been passed with a view to preventing the detenu from acting against public order. N.K.A.                                     Petition allowed. 1114