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PETITIONER: DR. RAM MANOHAR LOHIA

       Vs.

RESPONDENT: STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT: 07/09/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. HIDAYATULLAH, M. DAYAL, RAGHUBAR MUDHOLKAR, J.R. BACHAWAT, R.S.

CITATION:  1966 AIR  740            1966 SCR  (1) 709  CITATOR INFO :  F          1967 SC 908  (6)  R          1970 SC 814  (7)  R          1970 SC 852  (8)  F          1970 SC1228  (3,4)  RF         1971 SC 530  (233,237)  RF         1971 SC2486  (8,15)  RF         1972 SC 655  (8)  R          1972 SC 739  (12)  R          1972 SC1256  (8,27)  R          1972 SC1656  (5)  R          1972 SC1749  (7)  RF         1972 SC1924  (15)  R          1972 SC2259  (6)  R          1973 SC 295  (7)  F          1973 SC 844  (1)  F          1973 SC1062  (4)  RF         1973 SC1091  (2)  R          1974 SC 156  (4)  R          1974 SC 255  (7)  RF         1974 SC1336  (12)  F          1975 SC 134  (6)  R          1975 SC 953  (9)  RF         1975 SC1215  (5)  F          1976 SC 780  (5)  E          1976 SC1207  (33,116,123,144,361,363,473)  D          1977 SC1027  (23)  R          1980 SC 494  (10)  RF         1980 SC 898  (42)  R          1981 SC2166  (21,22)  RF         1982 SC1315  (11,20,36)  RF         1985 SC  18  (6,15)  F          1985 SC1416  (126)  RF         1986 SC 872  (119)  R          1987 SC 998  (5,6)  R          1987 SC1748  (11)  R          1987 SC2332  (15)  RF         1988 SC 208  (8)  RF         1989 SC 364  (12)  R          1989 SC 764  (13)  RF         1990 SC 496  (9)  RF         1990 SC1086  (18)  RF         1992 SC 687  (8)

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RF         1992 SC 979  (7)

ACT: Defence of India Rules, 1962, r. 30(1)(b)-"Public order" and "law and order", difference between-Scope of rule. Constitution  of India, 1950, Art. 359(1)-President’s  Order suspending  rights  under  Arts. 21  and  22-Right  to  move Supreme Court under Art. 32-Effect on.

HEADNOTE: Rule 30(1)(b) of the Defence of India Rules, 1962,  provided that  a  State Government might, if it  was  satisfied  with respect to a person that with a view to preventing him  from acting in a manner prejudicial, inter alia to "public safety and  maintenance of public order" it is necessary to do  so, order him to be detained.  A Disrict Magistrate to whom  the power  of  the  Government of the State of  Bihar  had  been delegated under s. 40(2) of the Defence of India Act,  1962, ordered the detention of the petitioner under -the rule. The order stated that the District Magistrate was satisfied, that  with a view to prevent the petitioner from  acting  in any  manner  prejudicial  to  the  "public  safety  and  the maintenance  of law and order," it was necessary  to  detain him.   Prior to the making of the order the District  Magis- trate had, however, recorded a note stating that having read the   report   of  the  Police   Superintendent   that   the petitioner’s  being  at  large was  prejudicial  to  "public safety  and maintenance of public order", he  was  satisfied that the petitioner should be detained under the rule.   The petitioner   moved   this  Court  under  Art.  32   of   the Constitution  for  a  writ of habeas  corpus  directing  his release  from  detention, contending that :  (i)  though  an order  of  detention to prevent acts prejudicial  to  public order   may  be  justifiable  an  order  to   prevent   acts prejudicial  to law and order would not be justified by  the rule; (ii) the order mentioned a notification which did  not contain the necessary delegation; (iii) the District  Magis- trate  acted  beyond  his jurisdiction  by  considering  the danger not only in his district but in the entire State; and (iv)  all  the  conditions mentioned in  the  rule  must  be cumulatively applied before the order of detention could  be made.     The   respondent-State   raised   a    preliminary objection,that the President  of  India  had made  an  Order under Art. 359(1) that the right of a person to   move   any court for the enforcement of the rights conferred by Arts.  21 and  22 shall remain suspended for the period  during  which the  proclamation of emergency under Art. 352 was in  force, if  such person had been deprived of any such  rights  under the  Defence of India Act or any rule made  thereunder,  and that  therefore, this Court was prevented from  entertaining the petition. HELD : (Per Full Court) : (i) The petition was maintainable. Per Sarkar, J. : The order of the President does not form  a bar to all applications for release from detention under the Act or the Rules.  Where a person was detained in  violation of the mandatory provisions of the Defence of India Act  his right  to  move  the Court was  not  suspended.   Since  the petitioner  contended  that the order of detention  was  not justified by the Act or Rules and was therefore against  the provisions  of  the Act, the petitioner was entitled  to  be heard. [716 G; 717 A-B] 710

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Per  Hidayatullah and Bachawat, JJ. : The net result of  the President’s  Order is to stop all claims to  enforce  rights arising  from laws other than the Defence of India  Act  and the  Rules, and the provisions of Art. 22 at  variance  with the Defence of India Act and the Rules are of no avail.  But the  deprivation must be in good faith under the Defence  of India  Act  or  any  rule or  order  made  thereunder.   The President’s  Order  does not say that even if  a  person  is proceeded  against in breach of the Defence of India Act  or the Rules or mala fide he cannot move the Court to  complain that the Act and the Rules under colour of which some action was  taken, do not warrant it.  It follows, therefore.  that this Court acting under Art. 32 on a petition for the  issue of  a writ of habeas corpus must not allow breaches  of  the Defence  of  India Act or the Rules to go  unquestioned,  as Art.  359  and the President’s Order were  not  intended  to condone an illegitimate enforcement of the Defence of  India Act. [731 B, E, F; 733 B-C] Per Raghubar Dayal, J. : This Court can investigate  whether the  District  Mazistrate exercised the power  under  r.  30 honestly and bona fide, or not, that is, whether he  ordered detention on being satisfied as required by r. 30. [748 H] Per Mudholkar, J. : Before an entry into the portals of this Court could be denied to a detenu, he must be shown an order under  r.  30(1)  of the Defence of India Rules  made  by  a competent  authority stating that it was satisfied that  the detenu  was likely to indulge in activities which  would  be prejudicial to one or more of the matters referred to in the rule.  If  the  detenu contends that the  order,  though  it purports  to  be under r. 30(1), was not  competently  made, this Court has the duty to enquire into the matter.  Upon an examination of the order, if the Court finds that it was not competently  made  or was ambiguous, it  must  exercise  its power  under Art. 32, entertain the petition thereunder  and make an appropriate order. [755 H; 756 A-B] Makhan  Singh  v.  State  of Punjab,  [1964]  4  S.C.R.  797 followed. (ii) Per  Sarkar, Mdayatullah, Mudholkar and Bachawat JJ.  : The petitioner should be set at liberty. Per Sarkar J. : The order detaining the petitioner would not be  in. terms of the rule unless it could be said  that  the expression  "law and order" means the same thing as  "Public order".   What was meant by maintenance of public order  was the  prevention  of disorder of a grave nature,  a  disorder which  the authorities thought was necessary to  prevent  in view   of  the  emergent  situation  created   by   external aggression; whereas, the expression "maintenance of law  and order"  may  mean prevention of  disorder  of  comparatively lesser gravity and of local significance only. [718 B, D, E] Courts  are only entitled to look at the face of the  order, because the satisfaction which justifies the order under the rule  is  the  subjective  satisfaction  of  the   detaining authority.  If on its face an order of detention is in terms of the rule, ordinarily, a court is bound to stay its  hands and  uphold the order.  When an order is on the face  of  it not  in  terms  of the rule, a court cannot  enter  into  an investigation whether the order of detention was :In fact in terms  of the rule.  So the State cannot be heard to say  of prove  that  an  order  was in fact  made  to  prevent  acts prejudicial  to public order though the order does  not  say so.   It is not a case where the order is only  evidence  of the detention having been made under the rule.  The order is conclusive  as  to the state of the mind of the  person  who made it and no evidence is admissible to prove that state of mind.   Extraneous  evidence such as the note  made  by  the

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District  Magistrate  was not admissible lo prove  that  the rule had been complied with. [718 G-H; 718 B-D 720 G; 722 B- C] 711 is  not  taking  too technical a view, but is  a  matter  of substance.  If a man can be deprived of his liberty under  a rule by the simple process of the making of an order, he can only  be so deprived if the order is in terms of  the  rule. If  for  the purpose of justifying the detention  such  com- pliance  by itself is enough, a non-compliance must  have  a contrary  effect A more reference in the detention order  to the  rule is not sufficient to show that by "law and  order" what was meant was public order". [719 F-G: 720 A-C] The  order  no doubt mentions another ground  of  detention, namely, prevention of acts prejudicial to public safety, and in so far as it did so, it was clearly within the rule.  But the  order  has  notwithstanding this to  be  held  illegal, though  it  mentioned  a ground on which a  legal  order  of detention  could have been based, because, it could  not  be said in what manner and to what extent the valid and invalid grounds operated an the mind of the authority concerned  and contributed to the creation of subjective satisfaction. [722 E; G-11] ShShibban  Lal Saksena v. State of U.P. [1954]  S.C.R.  418, followed. Per Hidayatullah and Bachawat, JJ. : The satisfaction of the detaining  authority cannot be subjected to objective  tests and  courts are not to exercise appellate  powers over  such authorities  and  an order proper on its face, passed  by  a competent  authority  in  good faith, would  be  a  complete answer to a petition for a writ of habeas corpus.  But  when from  the  order itself circumstances appear which  raise  a doubt whether the officer concerned had not misconceived his own powers, there is need to pause and enquire.  The enquiry then ’Is, not with a view to investigate the sufficiency  of the  materials but into the officer’s notions of his  power. If the order passed by him showed that he thought his powers were more extensive than they actually were, the order might fail  to  be a good order.  No doubt. what  matters  is  the substance;  but  the  form discloses  the  approach  of  the detaining authority to the serious question and the error in the  form raises the enquiry about the substance.  When  the liberty of the citizen is put within the reach of  authority and the scrutiny by courts is barred, the action must comply not  only with the substantive requirements of law but  also with those forms which alone can indicate that the substance has been committed with. [739 H; 740 B-C, E; 741 C; F] The  District Magistrate acted to "maintain law  and  order" and  his order could not be read differently even  if  there was  an affidavit the other way.  If he thought in terms  of "public  order"  he  should have said so in  his  order,  or explained  how  the error arose.  A mere  reference  to  his earlier  note  was not sufficient and  the  two  expressions cannot be reconciled by raising an air of similitude between them.   The  contravention of law always affects  order  but before it can be said to affect public order, it must affect the  community or the public at large.  One has  to  imagine three concentric circles, the largest representing "law  and order",  the  next  representing  "public  order"  and   the smallest  representing  "security  of State".   An  act  may affect  "law and order " but not "public order," just as  an act  may  affect  "public order" but not  "security  of  the State".  Therefore, by using the expression "maintenance  of law and order" the District Magesstrate was widening his own field  of action and was adding a clause to the  Defence  of

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India Rules. [740 E-F, H; 746 B-E; 747 D, E] The  order  on its face shows two reasons, but  it  was  not certain  that the District Magistrate was influenced by  one consideration and not both, because, it was not oven to  the Court  to  enquire into the material on which  the  District Magistrate acted, or to examine the reason-,; to see whether his  action  fell  within the other  topic.  namely.  public safety. [746 F-G] 712 Per Mudholkar J. : The use of the expression "maintenance of law  and order" in the impugned order makes it ambiguous  on its face and therefore the order must be held to be had.  No doubt the order also refers to public safety.  But then  the questions arise : What is it that weighed with the  District Magistrate,  the apprehension regarding public safety or  an apprehension  regarding maintenance of law and  order?   Was the apprehension entertained by the District Magistrate that the petitioner, if left at large, was likely to do something which   will  imperil  the  maintenance  of   public   order generally,   or  was  it  that  he  apprehended   that   the petitioner’s   activities  may  cause  disturbances   in   a particular  locality  ?   His  order,  which  was  the  only material  which could be considered, gave no  indication  on those  questions.  The expression "law and order"  does  not find  any  place  in the rule and  is  not  synonymous  with "public   order".   "Law  and  order"  is  a   comprehensive expression  in  which would be included  not  merely  public order  but  matters  such  as  public  peace,   tranquility, orderliness in a locality or a local area and perhaps  other matters. [756 H; 757 A, C, D, F] Per Raghubar Dayal J. (dissenting) : The District Magistrate made  the impugned order on his being satisfied that it  was necessary  to  do so with a view to prevent  the  petitioner from  acting  in a manner prejudicial to public  safety  and maintenance  of  public  order.   The  impugned  order   was therefore  valid and consequently, the petitioner could  not move  this  Court for the enforcement of  his  rights  under Arts. 21 and 22 in view of the President’s Order under  Art. 359(1). [755 B-C] The detaining authority s free to establish that any  defect in the detention order is of form only and not of  substance it being satisfied of the necessity to detain the person for a purpose mentioned in r. 30, though the purpose  has   been inaccurately  stated in the detention order.  The  existence of   satisfaction  does not depend on what is stated in  the order and can be    established  by the District  Magistrate by his affidavit.  His omission to refer to "maintenance  of public  order" does not mean that he was not  so  satisfied, especially  when his note refers to the petitioner being  at large to be prejudicial to public safety and the maintenance of  public order.  The petitioner’s affidavit and  rejoinder show  that  the  District Magistrate was  satisfied  of  the necessity  of detaining the petitioner to prevent  him  from acting in a manner prejudicial to the public order,  because of  the  setting  of  events that  happened  on  that  date. "Maintenance of law and order" may be an expression of wider import  than "public order", but in the context in which  it was  used  in  the detention order and in view  of  its  use generally, it should be construed to mean maintenance of law and  order in regard to maintenance of  public  tranquility. [749 C-D; 750 C-D; 751 C, F-G] Sodhi  Shamsher  Singh v. State of Pepsu, A.I.R.  1954  S.C. 276, referred to. Even if the expression "maintenance of law and order" in the impugned order be not construed as referring to "maintenance

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of  public  order" the impugned order cannot be said  to  be invalid  in view of its being made with a double  objective, that  is, with the object of preventing the petitioner  from acting   prejudicially   to  the  public  safety   and   the maintenance of law and order.  His satisfaction with respect to  any  of the purposes mentioned in r. 30(1)  which  would justify his ordering the detention of a person is sufficient for  the  validity  of  the order.  There  is  no  room  for considering  that be might not have passed the order  merely with  one  object in view, the object being to  prevent  him from  acting  prejudicially to public safety.  It is  not  a case where his satisfaction was based on two grounds one  of which is irrelevant or non-existent.  There does not  appear to be any reason why the District Magistrate would not  have passed the order of 713 detention against the petitioner on the satisfaction that it was  necessary to prevent him from acting  prejudicially  to public safety. [752 H; 753 B-D; 754 A-Di (iii)     Per  Sarkar,  Hidayatullah,  Raghubar  Dayal   and Bachawat, JJ. The delegation was valid. Per  Sarkar J. : In spite of the mistake in the order as  to the  Notification  delegating the power, evidence  could  be given  to  show that the delegation had in fact  been  made, because,  the mistake did not vitiate the order.   To  admit such  evidence  would not be going behind the  face  of  the order,  because, what is necessary to appear on the face  of the  order  is  the satisfaction of  the  Authority  of  the necessity for detention for any of the reasons mentioned  in r. 30(1) (b), and not his authority to make the order.  [721 D, F-G] Per  Hidayatullah, Raghubar Dayal and Bachawat JJ.  :  There was   only  a  clerical  error  in  mentioning   the   wrong notification  and being a venial fault did not  vitiate  the order  of  detention.  Also, s. 40(2) does not  require  the imposition  of any conditions but only permits it.  [737  F; 738 A; 741 G; 748 D] (iv) Per  Hidayatullah, Raghubar Dayal and Bachawat,  JJ.  : There was nothing wrong in the District Magistrate taking  a broad view of the petitioner’s activities so as to weigh the possible harm if he was not detained.  Such a viewing of the activities of a person before passing the order against  him does not necessarily spell out extra-territoriality, but  is really  designed  to  assess properly  the  potentiality  of danger which is the main object of the rule lo prevent. [737 G-H; 748 D] (v)  Per   Hidayatullah,  Raghubar  Dayal,   Mudhilkar   and Bachawat,  JJ.  It  is not necessary  that  the  appropriate authority  should entertain an apprehension that the  person to be detained is likely to participate in every one of  the activities referred to in the rule. [739 F; 748 D; 756 F]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 79 of 1965. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental Rights. The petitioner appeared in person. A.   V.  Viswanatha  Sastri  and  S.  P.  Varma,   for   the respondents. Sarkar  J.,  Hidayatullah  J.  (on  behalf  of  himself  and Bachawat J.) and Mudholkar J. delivered separate  concurring Judgments.    Raghubar  Dayal  J.  delivered  a   dissenting Opinion.

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Sarkar, J. Dr. Ram Manohar Lohia, a member of the Lok Sabha, has moved the Court under Art. 32 of the Constitution for  a writ  of habeas corpus directing his release from  detention under  an order passed by the District Magistrate of  Patna. The order was purported to have been made under r.  30(1)(b) of the Defence of India Rules, 1962. Dr. Lohia, who argued his case in person, based his claim to be  released  on a number of grounds.  I do not  propose  to deal  with  all  these  grounds  for  I  have  come  to  the conclusion that he is entitled to be released on one of them and to the discussion of 714 that  ground alone I will confine my judgment.  With  regard to  his ,other grounds I will content myself only  with  the observation  that  as at present advised, I  have  not  been impressed by them. The  order of detention runs thus : "Whereas 1, J. N.  Sahu, District  Magistrate, Patna, am satisfied  that with a  view to  preventing him from acting in any manner prejudicial  to the  public safety and the maintenance of law and order,  it is  necessary  to make an order that he be  detained.   Now, therefore, in exercise of the powers conferred by clause (b) of  sub-rule (1) of rule 30 of the Defence of  India  Rules, 1962  read with Notification No.180/COW     I hereby  direct that   Dr. Ram Manohar Lohia be arrested    and detained  in the  Contra Jail Hazaribagh, until further orders." Now  the point  made by Dr. Lohia is that this order is not in  terms of  the rule under which it purports to have been made  and, therefore,  furnishes no legal justification for  detention. The reason why it is said that the order is not in terms  of the rule is that the rule does not justify the detention  of a person to prevent him from acting in a manner  prejudicial to the maintenance of law and order while the order  directs detention  for such purpose.  It is admitted that  the  rule provides for an order of detention being made to prevent act prejudicial  to the maintenance of public order, but  it  is said  that public order and law and order are not  the  same thing,  and,  therefore,  though an order  of  detention  to prevent   acts   prejudicial  to  public  order   might   be justifiable, a similar order to prevent acts prejudicial  to law and order would not be justified by the rule.  It  seems to we that this contention is well founded. Before proceeding to state my reasons for this view, I  have to dispose of an argument in bar advanced by the  respondent State.  That argument is that the petitioner has, in view of a  certain order of the President to which I will  presently refer,  no  right to move the Court under Art.  32  for  his release.   It  is said that we cannot, therefore,  hear  Dr. Lohia’s application at all.  To appreciate this  contention, certain  facts have to be stated and I proceed to do  so  at once. Article 352 of the Constitution gives the President of India a  power to declare by Proclamation that a  grave  emergency exists  whereby  the security of India is  threatened  inter alia  by  external  aggression.  On October  26,  1962,  the President issued a Proclamation under this article that such an  emergency existed.  This presumably was done in view  of China’s  attack on the north eastern frontiers of  India  in September 1962.  On the same day as the 715 Proclamation  was made, the President passed the Defence  of India  Ordinance  and  rules were then  made  thereunder  on November 5, 1962.  The Ordinance was later, on December  12, 1962,  replaced  by  the Defence of India  Act,  1962  which however  continued  in  force  the  rules  made  under   the

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Ordinance.  On November 3, 1962, the President made an order under  Art.  359(1) which he was entitled to  do,  declaring "that  the  right of any person to move any  court  for  the enforcement  of  the  rights conferred  by  article  21  and article  22 of the Constitution shall remain  suspended  for the  period  during  which the  Proclamation........  is  in force,  if such person has been deprived of any such  rights under  the Defence of India Ordinance, 1962 or any  rule  or order made thereunder." There is no doubt that the reference in  this  Order to the "Defence of  India  Ordinance,  1962" must,  after  that  Ordinance was replaced by  the  Act,  as earlier stated, be understood as a reference to the Act: see Mohan  Chowdhury v. The Chief Commissioner,  Tripura(1).   I should now state that the Proclamation is still in force. It is not in dispute that the present petition has been made for the enforcement of Dr. Lohia’s right to personal liberty under  Arts. 21 and 22.  These articles in substance-and  it should suffice for the present purpose to say no  more--give people  a  certain  personal liberty.  It  is  said  by  the respondent  State  that  the President’s  Order  under  Art. 359(1) altogether prevents us from entertaining Dr.  Lohia’s petition  and, therefore, it should be thrown out  at  once. This would no doubt, subject to certain exceptions to  which a reference is not necessary for the purposes of the present judgment,  be correct if the Order of November 3, 1962  took away  all rights to personal liberty under Arts. 21 and  22. But  this, the Order does not do.  It deprives a  person  of his right to move a court for the enforcement of a right  to such  personal liberty only when he has been deprived of  it by the Defence of India Act-it is not necessary to refer  to the Ordinance any more as it has been replaced by the Act-or any  rule or order made thereunder.  If he has not  been  so deprived,  the Order does not take away his right to move  a court.   Thus if a person is detained under  the  Preventive Detention  Act,  1950,  his  right to  move  the  Court  for enforcement  of  his rights under Arts. 21  and  22  remains intact.  That is not a case in which his right to do so  can be  said to have been taken away by the  President’s  Order. This  Court  has in fact heard applications  under  Art.  32 challenging a detention under (1)  [1964] 3 S.C.R. 442. 7 16 that  Act  : see Rameshwar Shaw v.  District  Magistrate  of Burdwan(1).  If any person says, as Dr. Lohia does, that  he has  been deprived of his personal liberty by an  order  not made  under  the Act or the Rules there is  nothing  in  the President’s  Order under Art. 359(1) to deprive him  of  his right  to  move  the Court under Art. 32.   The  Court  must examine  his  contention  and decide  whether  he  has  been detained  under the Act or the Rules and can only throw  out his petition when it finds that he was so detained, but  not before then.   If  it finds that he was not so detained,  it must proceed to hear     his  petition on its  merits.   The right under Art. 32 is one of the  fundamental  rights  that the Constitution has guaranteed to all persons and it cannot be  taken  away  except by the methods as  provided  in  the Constitution,  one of which is by an order made  under  Art. 359.   The contention that an order under that  article  has not taken away the constitutional right to personal  liberty must be examined. Mr. Verma said that Smith v. East Elloe Rural District Coun- cil(1) supported the contention of the respondent State.   I do not think so.  That case turned on an entirely  different statute.   That statute provided a method of  challenging  a certain  order by which property was compulsorily  purchased

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and stated that it could not be questioned in any other  way at  all.  It was there held that an action to set aside  the order even on the -round of having been made mala fide,  did not  lie as under the provision no action  was  maintainable for the purpose.  That case is of no assistance in  deciding the question in what circumstance a right to move the  court has  been  taken away by the entirely  different  provisions that we have to consider.  Here only a right to move a court in  certain  circumstances  has  been  taken  away  and  the question  is,  has  the  court been  moved  on  the  present occasion  in  one of those circumstances ?  The  President’s Order  does  not bar an enquiry into that  question.   Apart from  the fact that the reasoning on which the English  case is   based,   has  no  application  here,  we   have   clear observations in judgments of this Court which show that  the Order  of  the  President  does  not  form  a  bar  to   all applications for release from detention under the Act or the Rules.   I will refer only to one of them.  In Makhan  Singh v.  The State of Punjab (3) it was said, "If in  challenging the validity of his detention order, the detenu is  pleading any  right  outside the rights specified in the  Order,  his right to move any court in that behalf is not suspended" and by way of illustration of this proposition, a case where a (1) [1964] 4 S.C.R. 921. (2) [1956]  L.R. A.C. 736. (3)  [1964] 4 S.C.R. 797. 717 person was detained in violation of the mandatory provisions of  the  Defence of India Act was mentioned.   That  is  the present  case as the petitioner contends that the  order  of detention is not justified by the Act or Rules and hence  is against  its provisions.  The petitioner is entitled  to  be heard  and  the present contention of the  respondent  State must be held to be ill founded and must fail. I  now  proceed  to  consider  the  merits  of  Dr.  Lohia’s contention  that the Order detaining him had not  been  made under  the Defence of India Rules.  I here pause to  observe that if it was not so made, there is no other  justification for  his detention; none is indeed advanced.  He would  then be entitled to his release. I have already stated that the Proclamation of Emergency was made  as  the security of India was threatened  by  external aggression.    That  Proclamation  of  emergency   was   the justification  for  the Act.  The Act in  fact  recited  the Proclamation in its preamble.  Section 3 of the Act gave the Central  Government  power to make rules providing  for  the detention of persons without trial for various reasons there mentioned.   Rule  30(1)  (b)  under  which  the  order   of detention of Dr. Lohia was made was framed under s. 3 and is in  these  terms  : "The Central  Government  or  the  State Government,   if  it  is  satisfied  with  respect  to   any particular  person that with a view to preventing  him  from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of  public order,   India’s   relations  with   foreign   powers,   the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the  maintenance of  supplier,  and  services essential to the  life  of  the community,  it  is necessary to do so, may  make  an  order- (a)........  (b) directing that he be detained." As  I  have said earlier, the order was made by the District Magistrate, Patna,  to whom the power of the Government of the State  of Bihar in this regard had been duly delegated under s.  40(2) of the Act. Under this rule a Government can make an order of  detention

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against a person if it is satisfied that it is necessary  to do  so to prevent him from acting in a  manner  prejudicial, among  other things to public safety and the maintenance  of public order.  The detention order in this case is based  on the  ground that it was necessary to make it to prevent  Dr. Lohia from acting in any manner prejudicial to public safety and the maintenance of law and order.  I will, in discussing the contention of Dr. Lohia, proceed on the basis as if  the order  directing detention was only for preventing him  from acting in a manner prejudicial to the 718 maintenance  of law and order.  I will consider what  effect the  inclusion in the order of detention of a  reference  to the necessity for maintaining public safety has, later.  The question is whether an order could be made legally under the rule for preventing disturbance of law and order.  The  rule does  not  say so.  The order, therefore, would  not  be  in terms  of  the  rule  unless  it  could  be  said  that  the expression  "law and order" means the same thing as  "public order"  which occurs in the rule.  Could that then be  said? I find no reason to think so.  Many of the things  mentioned in  the  rule  may in a general sense be  referable  to  the necessity  for  maintaining  law and order.   But  the  rule advisedly does not use that expression. It  is commonplace that words in a statutory provision  take their meaning from the context in which they are used.   The context  in  the  present case  is  the  emergent  situation created  by  external aggression.  It would,  therefore,  be legitimate to hold that by maintenance of public order  what was  meant was prevention of disorder of a grave  nature,  a disorder  which  the authorities thought  was  necessary  to prevent   in  view  of  the  emergent  situation.    It   is conceivable  that  the expression "maintenance  of  law  and order"  occurring in the detention order may not  have  been used  in  the  sense of prevention of disorder  of  a  grave nature.   The expression may mean prevention of disorder  of comparatively lesser gravity and of local significance only. To  take an illustration, if people indulging in  the  Hindu religious festivity of Holi become rowdy, prevention of that disturbance may be called the maintenance of law and  order. Such  maintenance of law and order was obviously not in  the contemplation of the Rules. What the Magistrate making the order exactly had in mind, by the use of the words law and order, we do not know.  Indeed, we are not entitled to know that for it is well-settled that courts  cannot  enquire  into  the  grounds  on  which   the Government  thought  that  it  was  satisfied  that  it  was necessary to make an order of detention.     Courts are only entitled to look at the face of the order.  This  was stressed  on us by learned counsel for the respondent  State and the authorities fully justify that view, If,  therefore, on  its face an order of detention is in to of the  rule,  a court is bound to stay its hands and uphold the order.  I am leaving here out of consideration a contention that an order good  on  the face of it is bad for reasons dehors  it,  for example,  because  it had been made mala fide.   Subject  to this  and other similar exceptions--to which I have  earlier referred and as to 719 which  it,,  is unnecessary to say anything in  the  present context  and  also  because  the  matter  has  already  been examined by this Court in a number of cases court cannot  go behind  the face of the order of detention to determine  its validity. The satisfaction of the Government which justifies the order

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under the rule is a subjective satisfaction.  A court cannot enquire  whether  grounds existed which would  have  created that  satisfaction on which alone the order could have  been made in the mind of a reasonable person.  If that is so,-and that indeed is what the respondent State contends.-it  seems to  me that when an order is on the face of it not in  terms of   the  rule,  a  court  cannot  equally  enter  into   an investigation  whether the order of detention was  in  fact, that  is  to say, irrespective of what is stated in  it,  in terms of the rule.  In other words, in such a case the State cannot  be heard to say or prove that the order was in  fact made,  for  example, to prevent acts prejudicial  to  public order which would bring it within the rule though the  order does  not  say  so.  To allow that to be done  would  be  to uphold  a detention without a proper order.  The  rule  does not  envisage  such  a situation.   The  statements  in  the affidavit  used in the present case by the respondent  State are, therefore, of no avail for establishing that the  order of detention is in terms of the rule.  The detention was not under  the  affidavit but under the order.  It  is  of  some significance  to point out that the affidavit sworn  by  the District Magistrate who made the order of detention does not say that by the use of the expression law and order he meant public order. It  was  said  that this was too technical  a  view  of  the matter;  there  was  no  charm in  words  used.   I  am  not persuaded  by this argument.  The question is of  substance. If a man can be deprived of his liberty under a rule by  the simple process of the making of a certain order, he can only be so deprived if the order is in terms of the rule.  Strict compliance with the letter of the rule is the essence of the matter.   We  are dealing with a statute  which  drastically interferes  with  the  personal liberty of  people,  we  are dealing  with an order behind the face of which a  court  is prevented  from  going.   I  am  not  complaining  of  that. Circumstances  may  make  it necessary.   But  it  would  be legitimate to require in such cases strict observance of the rules.   If  them is any doubt whether the rules  have  been strictly observed, that doubt must be resolved in favour  of the detenu.  It is certainly more than doubtful whether  law and  order  means  the  same as  public  order.   I  am  not impressed by the argument that the 720 reference in the detention order to r. 30(1) (b) shows  that by law and order what was meant was public order.  That is a most  mischievous way of approaching the question.  If  that were  right,  a  reference to the rule in  the  order  might equally  justify  all other errors in it.  Indeed  it  might with  almost  equal  justification  then  be  said  that   a reference  to  the rule and an order of detention  would  be enough.   That  being so, the only course open to us  is  to hold that the rules have not been strictly observed.  If for the  purpose of justifying the detention such compliance  by itself  is  enough, a non-compliance must  have  a  contrary effect. Carltona Ltd. v. Commissioners of Works(1) is an interesting case to which reference may be made in this connection.  It- turned  on  a statutory Regulation  empowering  a  specified authority  to  take  possession of  land  for  the  purposes mentioned  in it in various terms but which term-,  did  not include  the expression "  national  interest".   Under this Regulafion  possession of certain premises of  the  Carltona Company  was  taken after serving a notice on  it  that  was being  done "in the national interest". It was contended  by the Carltona Company that it had been illegally deprived  of

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the  possession  of its premises because the  notice  showed that  possession  was  not  being  taken  in  terms  of  the Reaulation.  This contention failed as it was held that  the giving of the notice was not a prerequisite to the  exercise of  the powers under the Regulation and that the notice  was no  more  than  a notification  that  the  authorities  were exercising  the  powers.  It was said that  the  notice  was useful  only  as evidence of the state of the  mind  of  the writer and, that being so, other evidence was admissible  to establish  the fact that the possession of the premises  was being     taken for the reasons mentioned in the Regulation. Our case  is  entirely  different.  It is not a  case  of  a notice.  Under r. 30(1) (b) a person can be detained only by an  order and there is no doubt that the order of  detention has  to be in writing.  It is not a case where the order  is only  evidence of the detention having been made  under  the rule.  It is the only warrant for the detention.  The  order further  is  conclusive as to the state of the mind  of  the person who made it; no evidence is admissible to prove  that state of mind.  It seems to me that if the Carltona case was concerned  with  an  order  which  alone  resulted  in   the dispossession,  the  decision in that case might  well  have been  otherwise.   I  would  here  remind,  to  prevent  any possible  misconception,  that I am not considering  a  case where (1)  [1943) 2 All E.R. 560. 721 the order is challenged on the ground of mala fides or other similar grounds to which I have earlier referred. Before  leaving this aspect of the case, it is necessary  to refer to two other things.  The first is a mistake appearing in  the order of detention on which some argument was  based by Dr. Lohia for quashing the order.  It will be  remembered that the order mentioned a certain Notification No.  180/CW. The  Notification intended to be mentioned however  was  one No.  1  1  15/CW and the Notification No.  180/CW  had  been mentioned  by  mistake.  It was under  Notification  No.  II 15/CW  that  the power of the State Government  to  make  an ’order of detention was delegated to the District Magistrate under the provisions of s. 40(2) of the Act to which I  have earlier referred.  The reference to the notification was  to indicate the delegation of power.  The Notification actually mentioned  in  the  order  did  not,  however,  contain  the necessary delegation.  The result was that the order did not show  on its face that the District Magistrate who had  made it  had  the  necessary authority to do  so.   This  mistake however  did not vitiate the order at all.  Nothing  in  the rules requires that an order of detention should state  that the  authority making it has the power to do so.  It may  be that an order made by an authority to whom the  Government’s power has not been delegated, is a nullity and the order can be challenged on that ground.  This may be one of the  cases where an order good on its face may nonetheless be  illegal. When the power of the person making the order is challenged, the  only  fact to be proved is that the power to  make  the order had been duly delegated to him.  That can be proved by the  necessary evidence, that is, by the production  of  the order of delegation.  That would be a case somewhat like the Carltona  case.  In spite of the mistake in the order as  to the Notification delegating the power, evidence can be given to show that the delegation had in fact been made.  To admit such  evidence  would not be going behind the  face  of  the order because what is necessary to appear on the face of the order is the satisfaction of the authority of the  necessity for the detention for any of the reasons mentioned in r.  30

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(1) (b) and not the authority of the maker of the order. The  second  thing  to  which I wish to  refer  is  that  it appeared from the affidavit sworn by the District Magistrate that  prior  to the making of the order, he had  recorded  a note which raja in these words : "Perused the report of  the Senior  S. P. Patna for detention of Dr. Ram Manohar  Lohia, M.P. under rule 30(1) (b) of the Defence of India Rules,  on the ground that his being at .  C. 1.165-3 722 large is prejudicial to the public safety and maintenance of public  order.  From the report of the Sr.  S. P., Patna,  I am  satisfied that Dr. Ram Manohar Lohia, M.P. aforesaid  be detained under rule 30(1)(b) of the Defence of India  Rules. Accordingly,   I  order  that  Dr.  Ram  Manohar  Lohia   be detained.......... am unable to see that this note is of any assistance to the respondent State in this case.  It is  not the  order of detention.  The respondent State does not  say that it is.  I have earlier stated that extraneous  evidence is  not admissible to prove that the rule has been  complied with  though  the order of detention does  not  show  that,. Indeed,  this  note  does not even  say  that  the  District Magistrate  was satisfied that it was necessary to  make  an order  of  detention to prevent Dr. Lohia from acting  in  a manner  prejudicial to the maintenance of public order.   It only says that the Superintendent of Police reported that he was so satisfied.  The satisfaction of the Superintendent of Police  would  provide no warrant for the detention  or  the order; with it we have nothing to do. For these reasons, in my view, the detention order if it had been  based  only  on  the  ground  of  prevention  of  acts prejudicial  to the maintenance of law and order,  it  would not  have  been in terms of r. 30(1)(b) and would  not  have justified  the  detention.  As I have earlier  pointed  out, however,  it also mentions as another ground for  detention, the prevention of acts prejudicial to public safety.  In  so far as it does so, ’it is clearly within the rule.   Without more,  we have to accept an order -made on that ground as  a perfectly  legal  order.   The  result  then  is  that   the detention  order  mentions two grounds -one of which  is  in terms of the rule while the other is not.  What then is  the effect  of that ?  Does it cure the illegality in the  order that  I  have earlier noticed ?  This  question  is  clearly settled by authorities.  In Shibban Lal Saksena v. The State of Uttar Pradesh(1) it *as held that such an order would  be a  bad order, the reason being that it could not be said  in what manner and to what extent the valid and invalid grounds operated  on  the  mind  of  the  authority  concerned   and contributed  to the creation of his subjective  satisfaction which  formed  the  basis  of  the  order.   The-order  has, therefore,  to be held illegal though it mentioned a  ground on  which a legal order of detention could have been  based. I should also point out that the District Magistrate has not said  in his affidavit that he would have been satisfied  of the necessity of the detention order only (1)  [1954] S.C.R. 418. 723 for the reason that it was necessary to detain Dr. Lohia  to prevent  him from acting in a manner prejudicial  to  public safety. In the result, in my view, the detention order is not  under the  Rules.  The detention of Dr. Lohia under that order  is not legal and cannot be justified.  He is entitled to be set at liberty and I would order accordingly. Hidayatullah, J. Dr. Ram Manohar Lohia, M.P., has filed this

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petition under Art. 32 of the Constitution asking for a writ of  habeas corpus for release from detention ordered by  the District  Magistrate,  Patna,  under Rule  30(1)(b)  of  the Defence  of India Rules, 1962.  He was arrested at Patna  on the night between 9th and 10th August, 1965.  As it will  be necessary  to refer to the terms of the order served on  him it is reproduced here               "ORDER               No.  3912 C.            Dated, Patna, the  9th               August 1965               Whereas  1, J. N. Sahu,  District  Magistrate,               Patna, am satisfied with respect to the person               known as Dr. Ram Manohar Lohia, Circuit House,               Patna, that with a view to preventing him from               acting in any manner prejudicial to the public               safety  and the maintenance of law and  order,               it  is necessary to make an order that  he  be               detained.               Now,  therefore,  in exercise  of  the  powers               conferred  by clause (b) of sub-clause (i)  of               rule  30 of the Defence of India Rules,  1962,               read with Notification No. 180/ CW, dated  the               20th March, 1964, of the Government of  Bihar,               Political   (Special)  Department,  I   hereby               direct that the said Dr. Ram Manohar Lohia  be               arrested  by  the police  wherever  found  and               detained  in  the  Central  Jail,  Hazaribagh,               until further orders.                              Sd/- J. N. Sahu,                                  9-8-1965               District Magistrate, Patna.  Sd/- Ram  Manohar               Lohia. 10th August-1.40." Dr. Lohia was lodged in the Hazaribagh Central Jail at  3-30 p.m. on August 10, 1965.  He sent a letter in Hindi together with  an affidavit sworn in the jail to the  Chief  Justice, which  was received on August 13, 1965, in the  Registry  of this  Court.  Although the petition was somewhat  irregular, this Court issued a rule and as 724 no  objection  has been taken on the ground of form  we  say nothing more about it. In  his affidavit Dr. Lohia stated that he was  arrested  at midnight  on  August  9, 1965 and was told that  it  was  on charges  of  arson but later was served with  the  order  of detention and that in this way his arrest for a  substantive offence  was turned into preventive detention.   He  further stated that the order of detention showed that he was to  be detained  in  Bankipur  Jail but the name of  the  Jail  was scored  out and "Central Jail, Hazaribagh"  was  substituted which  led  him to conclude that typed orders  of  detention were  kept  ready and that the District Magistrate  did  not exercise  his  mind in each individual case.   He  contended that  his  detention  under  Rule 30  (1)  (b)  was  illegal because, according to him, that rule dealt with  prejudicial activities  in  relation to the defence of India  and  civil defence  and  not  with maintenance of law and  order  of  a purely local character.  He alleged that the arrest was mala fide  and  malicious; that it was made to prevent  him  from participating  in  the House of the People which was  to  go into  Session  from August 16 and particularly to  keep  him away from the debate on the Kutch issue.  He further alleged that  he had only addressed a very large gathering in  Patna and had disclosed certain things about the Bihar  Government which incensed that Government and caused them to  retaliate in  this  manner  and that detention  was  made  to  prevent

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further disclosures by him. In answer to Dr. Lohia’s affidavit two affidavits were filed on  behalf of the respondents.  One affidavit, filed by  the District Magistrate, Patna, denied that there was any malice or  mala  fides in the arrest of Dr.  Lohia.   The  District Magistrate  stated  that he had received a report  from  the Senior  Superintendent  of Police, Patna, in regard  to  the conduct  and activities of Dr. Lohia and  after  considering the  report he had ordered Dr. Lohia’s detention to  prevent him  from  acting in any manner prejudicial  to  the  public safety  and maintenance of public order.  He stated  further that  he  was fully satisfied that the  forces  of  disorder "which  were  sought  to  be  let  loose  if  not   properly controlled would envelop the whole of the State of Bihar and possibly  might spread in other parts of the  country  which would necessarily affect the problem of external defence  as well in more ways than one".  He said that the report of the Senior  Superintendent  of Police,  Patna,  contained  facts which  he considered sufficient for taking the  said  action but he could not disclose the contents of that report in the public  interest.  He sought to correct, what he  called,  a slip   in  the  order  passed  by  him,  by   stating   that notification No. 11155C, dated 11th August 725 1964, was meant instead of the notification mentioned there. He  stated  further that as the disturbance was  on  a  very large  scale  it was thought expedient to keep  ready  typed copies of detention orders and to make necessary alterations in them to suit individual cases, at the time of the  actual issuance of the orders, and that it was because of this that the  words  "Central Jail Hazaribagh" were  substituted  for "Bankipur  Jail".  He denied that he had not considered  the necessity   of  detention  in  each  individual  case.    He repudiated  the  charge  that the arrest  was  made  at  the instance  of  Government and affirmed that  the  action  was taken on his own responsibility and in the discharge of  his duty as District Magistrate and not in consultation with the Central or the State Governments.  He denied that the arrest and detention were the result of anger on the part of any or a desire to prevent Dr. Lohia from circulating any  damaging information  about  Government.   The  District   Magistrate produced  an order which, he said, was recorded  before  the order  of detention.  As we shall refer to that order  later it is reproduced here "9.8.65.               Perused the report of the Senior S.P.,  Patna,               for detention of Dr. Ram Manohar Lohia,  M.P.,               under rule 30 (1) (b) of the Defence of  India               Rules,  on the ground that his being at  large               is  prejudicial  to  the  public  safety   and               maintenance of public order.  From the  report               of  the Sr.  S.P., Patna, I am satisfied  that               Dr.  Ram  Manohar Lohia,  M.P.,  aforesaid  be               detained  under rule 30(1)(b) of the  D.-fence               of India Rules.  Accordingly, I order that Dr.               Ram  Manohar  Lohia  be  detained  under  rule               30(1)(b)  of the Defence of India  Rules  read               with Notification No. 180/CW dated 20.3.64  in               the  Hazaribagh  Central  Jail  until  further               orders.               Send  four copies of the warrant of arrest  to               the   Sr.    S.P.,   Patna,   for    immediate               compliance.  He should return two copies of it               after service on the detenu.               Sd/- J. N. Sahu, District Magistrate, Patna".

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The  second  affidavit was sworn by  Rajpati  Singh,  Police Inspector attached to the Kotwali Police Station, Patna.  He stated  in  his affidavit that the order was served  on  Dr. Lohia  at 1-40 A.M. on August 1O, 1965 and not at  midnight. He denied that Dr. Lohia was arrested earlier or that at the time of his arrest, he was informed 7 26 that the arrest was for an offence or offences of arson.  He admitted, however, that he, had told him that cases of arson and  toot  had taken place.  He affirmed that there  was  no charge of arson against Dr. Lohia. Dr. Lohia filed a rejoinder affidavit and in that  affidavit he stated that the internal evidence furnished by the  order taken with the counter affidavits disclosed that his  arrest and  detention were patently illegal.  He pointed  out  that while  Rule 30(1)(b) provided that detention could  be  made for the maintenance of public order, the order stated that Dr. Lohia was arrested for maintenance of law and order.  He characterised  the  counter affidavits as full of  lies  and narrated  other  facts intending to show that  there  was  a conspiracy to seal his mouth so that disclosures against the Bihar  Government  might not be made.  This  represents  the material on which the present petition is based or opposed. The petition was argued by Dr. Lohia in person though he was receiving  assistance  in constructing his  arguments.   His contentions  are  that he is not being  detained  under  the Defence  of India Rules but arbitrarily; that even if he  is being  detained  under  the  said Rules  the  law  has  been flagrantly  violated; that the order passed against  him  is mala fide; and that the District Magistrate did not exercise the  delegated  power but went outside it  in  various  ways rendering detention illegal. On  behalf  of the State a preliminary objection  is  raised that  the application itself is incompetent and that by  the operation of Art. 359 read with the President’s Order issued under that Article on November 3, 1962, Dr. Lohia’s right to move the Supreme Court under Art. 32 of the Constitution  is taken  away during the period of emergency proclaimed  under Art.  352  as long as the President’s Order  continues.   On merits it is contended on behalf of the State of Bihar  that the  petition,  if  not barred, does not  make  out  a  case against  the  legality  of the detention;  that  this  Court cannot consider the question of good faith and that the only enquiry open to this Court is whether there is or is not  an order  under  Rule 30(1)(b) of the Defence  of  India  Rules 1962.   If this Court finds that there is such an order  the enquiry  is  closed  because  the  petition  must  then   be considered as incompetent.  The State Government admits that the words of Rule 30(1)(b) and s. 3 of the Defence of  India Act  were  not used in the order of detention  but  contends that maintenance of public order and maintenance of law  and order  do  not indicate different things and that  the  area covered  by maintenance of law and order is the same if  not smaller than the area covered by the expression  maintenance of public 727 order.    We  shall  go  into  the  last   contention   more elaborately after dealing with the preliminary objection. Questions  about  the right of persons  detained  under  the Defence  of  India  Rules to move the  Court  have  come  up frequently before this Court and many of the arguments which are raised here have already been considered in a series  of cases.  For example, it has been ruled in Mohan Choudhury v. Chief Commissioner, Tripura(1) that the right of any  person detained under the Defence of India Rules to move any  court

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for the enforcement of his rights conferred by Arts. 21  and 22  of  the Constitution remains suspended in  view  of  the President’s  Order  of November 3, 1962.  It has  also  been ruled that such a person cannot raise the question that  the Defence of India Act or the Rules are not valid because,  if allowed  to  do so, that would mean  that  the  petitioner’s right to move the court is intact.  Other questions  arising from  detentions  under  the Defence  of  India  Rules  were further   considered  in  Makhan  Singh  v.  The  State   of Punjab(1).  It is there pointed out that, although the right of the detenu to move the Court is taken away that can  only be in cases in which the proper detaining authority passes a valid order of detention and the order is made bona fide for the purpose which it professes.  It would, therefore, appear from  the latter case that there is an area of enquiry  open before  a  court will declare that the detenu has  lost  his right  to  move the court.  That area at least  embraces  an enquiry  into  whether  there  is  action  by  a   competent authority  and in accordance with Defence of India  Act  and the  Rules thereunder.  Such an enquiry may not entitle  the court  to  go  into  the  merits of  the  case  once  it  is establish-Id  that  proper action has been  taken,  for  the satisfaction is subjective, but till that appears the  court is bound to enquire into the legality of the detention.   It was  contended that Makhan Singh’s(2) case arose under  Art. 226 and that what is stated there applies only to  petitions under that article.  This is a misapprehension.  The  ruling made  no difference between the Art. 32 and Art. 226 in  the matter  of the bar created by Art. 359 and  the  President’s Order.   What is stated there applies to petitions  for  the enforcement of Fundamental Rights whether by way of Art.  32 or Art. 226. Mr.  Verma  appearing  for  the  State  of  Bihar,  however, contends  that  the  area  of  the  enquiry  cannot  embrace anything more than finding out whether there is an order  of detention  or not and the moment such an order, good on  its face,  is produced all enquiry into good faith,  sufficiency of the reasons or the legality or illegality (1) [1964] 3 S.C.R. 442. (2) [1964) 4 S.C.R. 797. 728 of  the action comes to an end, for to go into such  matters is  tantamount to allowing the petitioner to move the  court which  the President’s Order does not permit.   He  contends that  the courts’ power to issue a writ of habeas corpus  in such cases is taken away as completely as if cl. (2) of Art. 32 made no mention of the writ of habeas corpus.   According to  him,  an order under Rule 30(1)(b) proper on  its  face, must  put  an end to enquiry of any kind.  In view  of  this objection  it is necessary to state the exact result of  the President’s  Order  for this has not been laid down  in  any earlier decision of this Court. The President declared a state of grave emergency by issuing a  Proclamation  under Art. 352 on October 26,  1962.   This Proclamation of Emergency gave rise to certain extraordinary powers  which  are  to  be  found  in  Part  XVIII  of   the Constitution,  entitled Emergency Provisions.   Article  358 suspended the provisions of Art. 19 during the Emergency and Art. 359 permitted the suspension of the enforcement of  the rights conferred by Part 111.  That article reads :               "359.  Suspension of the enforcement of the rights                  conferred by Part III during emergencies               (1)   Where a Proclamation of Emergency is  in               operation, the President may by order  declare               that  the  right  to move any  court  for  the

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             enforcement of such of the rights conferred by               Part III as may be mentioned in the order  and               all  proceedings pending in any court for  the               enforcement  of the rights so mentioned  shall               remain  suspended for the period during  which               the  Proclamation  is  in force  or  for  such               shorter  period  as may be  specified  in  the               order.               (2)   An order made as aforesaid may extend to               the  whole  or any part of  the  territory  of               India.               (3)   Every order made under clause (1) shall,               as  soon as may be after it is made,  be  laid               before each House of Parliament."               The  President issued an order on November  3,               1962. The Order reads :               "ORDER                     New Delhi, the 3rd November, 1962.               G.S.R.   1454.-In  exercise  of   the   powers               conferred by clause (1) of article 359 of  the               Constitution,  the President  hereby  declares               that the right of any person to move any court               for the enforcement of the rights conferred by               article 21 and article 22 of the  Constitution               shall  remain suspended for the period  during               which  the  Proclamation of  Emergency  issued               under clause (1) of article 352 thereof on the               26th  October,  1962,  is in  force,  if  such               person  has been deprived of any  such  rights               under the Defence of India Ordinance, 1962  (4               of 1962) or any rule or order made thereunder.               No. F. 4/62-Poll(Spl.)               V. VISWANATHAN, Secy." As  a result of the above Order the right of any  person  to move  any court for the rights conferred by Arts. 21 and  22 of  the  Constitution remains suspended, if such  person  is deprived  of  any  such rights under the  Defence  of  India Ordinance 1962 (’now the Defence of India Act, 1962) or  any rule  or  order made thereunder.  No doubt, as  the  article under  which the President’s Order was passed and also  that Order  say,  the right to move the court is taken  away  but that  is  in respect of a right conferred on any  person  by Arts. 21 and 22 and provided such person is deprived of  the right under the Defence of India Ordinance (now the Act)  or any rule or order made thereunder.  Two things stand  forth. The first is that only the enforcement in a court of law  of rights  conferred  by Arts. 21 and 22 is suspended  and  the second is that the deprivation must be under the Defence  of India  Ordinance  (now the Act) or any rule  or  order  made thereunder.  The word "thereunder" shows that the  authority of  the Defence of India Act must be made out in  each  case whether the deprivation is by rule or order. It,  therefore,  becomes necessary to inquire what  are  the rights which are so affected ? This can only be found out by looking into the content of the Arts. 21 and 22.  Article 21 lays  down that no person is to be deprived of his  life  or personal  liberty except according to procedure  established by  law.  This article thinks in terms of the ordinary  laws which  govern  our society when there is no  declaration  of emergency and which are enacted subject to the provisions of the Constitution including the Chapter on Fundamental Rights but other than those made under the powers 7 30 conferred  by the Emergency Provisions in Part XVIII.   When the  President  suspended the operation of Art. 21  he  took

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away  from  any  person dealt with under the  terms  of  his Order,  the  right to plead in a court of law  that  he  was being  deprived of his life and personal  liberty  otherwise than  according to the procedure established by the laws  of the  country.   In  other words, he  could  not  invoke  the procedure  established by ordinary law.  But  the  President did not make lawless actions lawful.  He only took away  the fundamental  right  in  Art.  21  in  respect  of  a  person proceeded against under the Defence of India Act or any rule or order made thereunder.  Thus a person so proceeded  could not  claim  to be tried under the ordinary law or  bring  an action  under the ordinary law.  But to be able to say  that the  right to move the court for the enforcement  of  rights under  Art.  21 is suspended, it is necessary  to  establish that  such person has been deprived of any such right  under the  Defence  of  India  Act  or  any  rule  or  order  made thereunder, that is to say, under the authority of the  Act. The  action of the authorities empowered by the  Defence  of India  Act is not completely shielded from the  scrutiny  of courts.    The   scrutiny  with   reference   to   procedure established by laws other than the Defence of India Act  is, of  course,  shut out but an enquiry whether the  action  is justified under the Defence of India Act itself is not  shut out.   Thus the State Government or the District  Magistrate cannot add a clause of their own to the Defence of India Act or  even the Rules and take action under that clause.   Just as action is limited in its extent, by the power  conferred, so  also the power to move the court is curtailed only  when there is strict compliance with the Defence of India Act and the Rules.  The Court will not enquire whether any other law is  not  followed  or breached but the  Court  will  enquire whether  the  Defence of India Act or the  Rules  have  been obeyed  or not.  That part of the enquiry  and  consequently the right of a person to move the court to have that enquiry made, is not affected. The President’s Order next refers to Art. 22.  That  Article creates  protection  against illegal arrest  and  detention. Clause  (1)  confers  some rights on  the  person  arrested. Clause  (2) lays down the procedure which must  be  followed after  an arrest is made.  By cl. (3) the first two  clauses do  not apply to an alien enemy or to a person  arrested  or detained  under any law providing for preventive  detention. Clauses (4), (5), (6) and (7) provide for the procedure  for dealing  with  persons arrested or detained  under  any  law providing for preventive detention, and lay down the minimum or compulsory requirements.  The provisions of Art. 22 would have  applied to arrest and detentions under the Defence  of India 731 Act  also if the President’s Order had not taken  away  from such  a  person the right to move any court to  enforce  the protection of Art. 22. The  net  result  of the President’s Order is  to  stop  all claims  to enforce rights arising from laws other  than  the Defence  of  India Act and the Rules and the  provisions  of Art.  22 at variance with the Defence of India Act  and  the Rules  are of no avail.  But the President’s Order does  not say that even if a person is proceeded against in breach  of the  Defence  of India Act or the Rules he cannot  move  the court  to complain that the Act and the Rules, under  colour of  which some action is taken, do not warrant it.   It  was thus  that this Court questioned detention orders  by  Addi- tional District Magistrates who were not authorised to  make them or detentions of persons who were already in  detention after  conviction or otherwise for such a long  period  that

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detention  orders served could have had no relation  to  the requirements of the Defence of India Act or the Rules.  Some of these cases arose under Art. 226 of the Constitution  but in considering the bar of Art. 359 read with the President’s Order, there is no difference between a petition under  that article and a petition under Art. 32. It follows. therefore, that  this Court acting under Art. 32 on a petition for  the issue of a writ of habeas corpus, may not allow claims based on  other laws or on the protection of Art. 22, but  it  may not and, indeed, must not, allow breaches of the Defence  of India Act or the Rules to go unquestioned.  The  President’s Order neither says so nor is there any such intendment. There  is,  however,  another  aspect  which  needs  to   be mentioned here.  That is the question of want of good  faith on the part of those who take action and whether such a plea can be raised.  This topic was dealt with in Makhan  Singh’s case(1).  At page 828    the following observation is to  be found :-               "Take  also a case where the detenu moves  the               court  for  a  writ of Habeas  Corpus  on  the               ground  that  his detention has  been  ordered               mala   fide.   It  is  hardly   necessary   to               emphasise  that the exercise of a  power  mala               fide  is wholly outside the scope of  the  Act               conferring   the  power  and  can  always   be               successfully  challenged.  It is true  that  a               mere  allegation  that the detention  is  mala               fide would not be enough; the detenu will have               to  prove  the mala fides.  But  if  the  mala               fides  are  alleged,  the  detenu  cannot   be               precluded from substantiating his plea on  the               ground  of the bar created by Art. 359(1)  and               the Presi-               (1)   [1964] 4 S.C.R. 797.               732               dential order.  That is an other kind of  plea               which is out side the purview of Art. 359(1)." Mr.  Verma, however, contends on the authority of  Smith  v. East  Elloe  Rural District Cormical &  Others(1)  that  the validity  ,of  the orders under the Defence of  India  Rules 1962  cannot be challenged on the ground of bad  faith  when the  action is otherwise proper.  That case dealt  with  the Acquisition of Land (Authorization Procedure) Act 1946 (9  & 10 Geo 6 Ch. 49).  Paragraph 15 ( 1 ) of Part IV of Schedule to that Act provided               "If  any  person  aggrieved  by  a  compulsory               purchase   order  desires  to   question   the               validity  thereof.... on the ground  that  the               authorization of a compulsory purchase thereby               granted  is not empowered to be granted  under               this Act   he  may, within six weeks from  the               date  on which notice of the  confirmation  or               making of the make an application The appellant more than six weeks after the notice had  been published  brought an action, claiming inter alia  that  the order was made and confirmed wrongfully and in bad faith  on the part of the clerk.  Paragraph 16 of that Act provided               "Subject   to  the  provisions  of  the   last               foregoing  para.graph, a  compulsory  purchase               order  shall not ...... be questioned. in  any               legal procceding whatsoever The House of Lords (by majority) held that the  jurisdiction of the court was ousted in such wise that even questions  of bad  faith could not be raised.  Viscount Simonds  regretted that  it should be so, but giving effect to the language  of

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paragraph 16, held that even an allegation of bad faith  was within  the bar of Paragraph 16.  Lord Morton  of  Henryton, Lord Reid and Lord Somervill of Harrow were of opinion  that Paragraph  15  gave  no such  opportunity.   Lord  Radcliffe dissented. The  cited  case  can have no  relevance  here  because  the statute provided for ouster of courts’ jurisdiction in  very different  circumstances.  Although this Court  has  already stated  that allegations of bad faith can be considered,  it may  be added that where statutory powers are  conferred  to take  drastic  action  against the life  and  liberty  of  a citizen,  those  who  exercise it may not  depart  from  the purpose.  Vast powers in the public interest are granted but under  strict  conditions.   If a person,  under  colour  of exercising (1)  [1956] A.C. 736. 733 the  statutory  power, acts from some improper  or  ulterior motive,  he acts in bad faith.  The action of the  authority is  capable  of being viewed in two ways.   Where  power  is misused but there is good faith the act is only ultra  vires but where the misuse of power is in bad faith there is added to  the ultra vires character of the act, another  vitiating circumstance.  Courts have always acted to restrain a misuse of  statutory  power  and the  more  readily  when  improper motives underlie it.  The misuse may arise from a breach  of the  law conferring the power or from an abuse of the  power in bad faith.  In either case the courts can be moved for we do  not  think that Art. 359 or the President’s  Order  were intended  to  condone  an illegitimate  enforcement  of  the Defence of India Act. We  now proceed to examine the contentions of Dr.  Lohia  by which  he  claims to be entitled to have the  order  of  the District  Magistrate set aside.  It is convenient  to  begin with  the  allegation  of want of  good  faith.   Dr.  Lohia alleges  that  there was a conspiracy  between  the  Central Government, the State of Bihar, the Senior Superintendent of Police  and  the District Magistrate, Patna, to  stifle  his disclosures against the Bihar Government, the Chief Minister and  others.   He also alleges that he was  arrested  for  a substantive  offence  under the Indian Penal  Code  but  the arrest has been converted into preventive detention to avoid proof in a court of law.  He says that he was about to leave Patna and if the train was not late he would have gone  away and he hints that his detention was made to prevent him from taking  part  in the Session of  Parliament.   The  District Magistrate   and   the  Inspector  of  Police   deny   these allegations.    The  District  Magistrate  has   given   the background  of  events  in which he made the  order  on  his responsibility.  On reading the affidavits on both sides, we are  satisfied  that the contentions of Dr. Lohia  are  ill- founded  and  that the order of detention was  made  by  the District Magistrate in good faith. There  is no dispute that the District Magistrate  was  duly authorized  to  act under Rule 30 of the  Defence  of  India Rules, 1962.  Dr. Lohia, however, says that the order is  in flagrant  disregard  of the requirements of the  Defence  of India  Act, 1962 and the Rules.  For this purpose  he  bases his argument on three circumstances               (i)   that   the  District  Magistrate   acted               outside   his  jurisdiction  as   created   by               Notification   No.  11155-C  dated   11-8-1964               published  in  the Bihar Gazette  Extra  dated               August 11, 1964;               (ii)  that the District Magistrate’s order  is

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             defective because he purports to derive  power               from notifica-               7 34               tion No. 180 of March 20, 1964 which had  been               rescinded; and               (iii) the District Magistrate purports to  act               to maintain law and order when he can only act               to maintain public order under the Defence  of               India Act and the Rules thereunder.               We   shall  now  consider  these  grounds   of               objection.   Before we do so we may  read  the               provisions of the Defence of India Act and the               Rules to which reference may be necessary.               The first part of the Defence of India Act  we               wish  to  read  is  the  long  title  and  the               preamble.  They are:               "An  Act  to provide for special  measures  to               ensure  the  public safety and  interest,  the               defence of India and civil defence and for the               trial  of  certain offences  and  for  matters               connected therewith.               WHEREAS   the   President  has   declared   by               Proclamation  under clause (1) of article  352               of  the  Constitution that a  grave  emergency               exists  whereby  the  security  of  India   is               threatened by external aggression;               AND  WHEREAS  it is necessary to  provide  for               special  measures to ensure the public  safety               and  interest, the defence of India and  civil               defence and for the trial of certain  offences               and for matters connected therewith;               We may next read section 3 which confers power               to make rules:               "3. Power to make rules.               (1)   The    Central   Government   may,    by               notification  in  the Official  Gazette,  make               such  rules  as  appear  to  it  necessary  or               expedient  for securing the defence  of  India               and  civil  defence, the  public  safety,  the               maintenance  of public order or the  efficient               conduct   of  military  operations,   or   for               maintaining supplies and services essential to               the life of the community."               Then  by  way  of  illustration  and   without               prejudice  to  the generality  of  the  powers               conferred  by  sub-s.  (1),  certain  specific               things  are mentioned for which provision  may               be made by rules.  Clause 15 provides :               73 5               "(15)  Notwithstanding anything in  any  other               law for the time being in force,-               (i)   the   apprehension  and   detention   in               custody  of  any  person  whom  the  authority               empowered by the rules to apprehend or  detain               (the  authority empowered to detain not  being               lower   in  rank  than  that  of  a   District               Magistrate) suspects, on grounds appearing  to               that  authority to be reasonable, of being  of               hostile  origin  or of having  acted,  acting,               being about to act or being likely to act in a               manner prejudicial to the defence of India and               civil defence, the security of the State,  the               public safety or interest, the maintenance  of               public  order, India’s relations with  foreign               States, the maintenance of peaceful conditions

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             in any part or area of India or the  efficient               conduct   of  military  operations,  or   with               respect  to whom that authority  is  satisfied               that   his  apprehension  and  detention   are               necessary  for the purpose of  preventing  him               from acting in any such prejudicial manner,               (ii)  the  prohibition  of  such  person  from               entering or residing or remaining in any area,               (iii) the compelling of such person to  reside               and  remain in any area, or to do  or  abstain               from doing anything, and               (iv)  the review of orders of detention passed               in pursuance of any rule made under sub-clause               (1);"               We  need not trouble ourselves with the  other               clauses.  Section 44 next provides :               "44.   Ordinary  avocations  of  life  to   be               interfered with as little as possible.               Any authority or person acting in pursuance of               this  Act  shall interfere with  the  ordinary               avocations  of  life  and  the  enjoyment   of               property  as little as may be  consonant  with               the purpose of ensuring the public safety  and               interest  and the defence of India  and  civil               defence." By virtue of the powers conferred by s. 3 of the Defence  of India  Ordinance, 1962 (now the Act), the Defence  of  India Rules  1962 were framed.  Part IV of these Rules  is  headed "Restriction of Movements and Activities of Persons" and  it consists of Rules 25-30, 30-A, 30-B and 31-34.  These  rules provide for various 7 36 subjects  such  as  "Entering enemy  territory"  (Rule  25), "Entering  India" (Rule 26), "Information to be supplied  by persons  entering India" (Rule 27) or "Leaving India"  (Rule 28), "Regulation of Movement of Persons within India"  (Rule 29),  "Powers  of photographing etc.  of  suspected  person" (Rule 31), "Control and winding up of certain organisations" (Rule  32), provisions for "Persons captured  as  prisoners" (Rule  33) and "Change of name by citizens of  India"  (Rule 34).   We are really not concerned with these rules but  the headings are mentioned to consider the argument of Dr. Lohia on  No’  (1)  above.  Rule 30 with which  we  are  primarily concerned  consists  of eight sub-rules.  We  are  concerned only with sub-rule (1).  That rule reads :               "30.   Restriction of movements  of  suspected               persons,  restriction  orders  and   detention               orders.-               (1)   The  Central  Government  or  the  State               Government, if it is satisfied with respect to               any  particular  person that with  a  view  to               preventing  him  from  acting  in  any  manner               prejudicial to the defence of India and  civil               defence, the public safety, the maintenance of               public  order, India’s relations with  foreign               powers, the maintenance of peaceful conditions               in any part of India, the efficient conduct of               military  operations  or  the  maintenance  of               supplies and services essential to the life of               the  community, it is necessary so to do,  may               make an order-               (a)               (b)   directing that he be detained; Under  s.  40  (2) of the Defence of India  Act,  the  State Government may by order direct that the powers conferred  by

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the  Rules may be exercised by any officer or  authority  in such  circumstances  and  under such conditions  as  may  be specified  in  the  direction.   A  special  limitation  was indicated in S. 3 (15) of the Act, where authority is  given for  making  rules in connection with the  apprehension  and detention in custody of persons, that the delegation  should not  be  made to an officer -below the rank  of  a  District Magistrate. By  virtue  of  these various powers  the  State  Government issued  a  notification on March 20,  1964  authorising  all District  Magistrates to exercise the powers  of  Government under Rule 30 (1) (b). 737 That   notification   was  later   rescind-Id   by   another notification  issued on June 5, 1964.  A fresh  notification (No.  11155-C)  was  issued on August 11,  1964.   This  was necessary  because of a mistake in the  first  notification. The new notification reads :               "No.  11155-C.-In exercise of the powers  con-               ferred by sub-section (2) of section (40)  the               Defence  of India Act, 1962 (Act 51 of  1962),               the  Governor  of Bihar is pleased  to  direct               that  the  powers  exercisable  by  the  State               Government under clause (b) of sub-rule (1) of               rule  30 of the Defence of India Rules,  1962,               shall be exercised by all District Magistrates               within their respective jurisdictions.               By  order  of  the Governor of  Biharc  M.  K.               Mukharji Secretary to Government". Dr.  Lohia  contends  that the District  Magistrate  in  his affidavit  says that he apprehended danger not only  in  his district  but in the whole of Bihar State and  even  outside and  hence  he has not acted within his  jurisdiction.   His argument attempts to make out, what we may call, an exercise of extraterrestrial jurisdiction on the part of the District Magistrate.  He contends also that the notifications are bad because  although the Defence of India Act contemplates  the imposition   of  conditions,  none  were  imposed   and   no circumstances for the exercise of power were specified.   In our judgment, none of these arguments can be accepted. Section 40(2) of the Act does not require the imposition  of any  conditions but only permits it.  This is apparent  from the  words "if any" in the sub-section.  The only  condition that  the  State Government thought necessary to  impose  is that   the  District  Magistrates  must  act  within   their respective  jurisdictions.   It  cannot be  said  that  this condition was not complied with.  Dr. Lohia was in the Patna District  at  the  time.  There was  nothing  wrong  if  the District  Magistrate took a broad view of his activities  so as to weigh the possible harm if he was not detained.   Such a viewing of the activities of _a person before passing  the order   against   him  does  not   necessarily   spell   out extraterrestrial  in  the  sense  suggested  but  is  really designed to assess properly the potentiality of danger which is the main object of the rule to prevent.  We find  nothing wrong  with  the  order on the  score  of  jurisdiction  and argument No. (i) stated above must fail.  Argument No.  (ii) is ,up.  C. & I./65-4 7 38 not  of  any  substance.   There was  a  clerical  error  in mentioning  the notification and the error did  not  vitiate the order of detention. This brings us to the last contention of Dr. Lohia and  that is the most serious of all.  He points out that the District Magistrate purports to detain him with a view to  preventing

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him  from  acting in any manner prejudicial  to  the  public safety and the maintenance of law and order and argues  that the  District  Magistrate had misunderstood his  own  powers which were to prevent acts prejudicial to public order  and, therefore, the detention is illegal.  On the other side, Mr. Verma  contends that the Act and the Rules speak  of  public order which is a concept much wider in content than the con- cept of law and order and includes the latter, and  whatever is done in furtherance of law and order must necessarily  be in  furtherance of public order.  Much debate took place  on the  meaning  of the two  expressions.   Alternatively,  the State  of  Bihar  contends  that the  order  passed  by  the District  Magistrate prior to the issue of the actual  order of  detention made use of the phrase "maintenance of  public order" and the affidavit which the District Magistrate swore in  support  of  the  return  also  uses  that  phrase  and, therefore,  the  District Magistrate was aware of  what  his powers   were  and  did  exercise  them  correctly  and   in accordance with the Defence of India Act and the Rules.   We shall now consider the rival contentions. The  Defence  of  India  Act and  the  Rules  speak  of  the conditions  under which preventive detention under  the  Act can  be  ordered.  In its long title and  the  preamble  the Defence of India Act speaks of the necessity to provide  for special measures to ensure public. safety and interest,  the defence of India and civil defence.  The expressions  public safety  and  interest  between them indicate  the  range  of action  for maintaining security, peace and  tranquility  of India  whereas  the expressions defence of India  and  civil defence  connote  defence of India and  its  people  against aggression  from  outside and action of persons  within  the country.   These  generic terms were used  because  the  Act seeks  to  provide  for  a  congress  of  action  of   which preventive  detention is just a small part.   In  conferring power  to  make  rules, s. 3 of the  Defence  of  India  Act enlarges upon the terms of the preamble by specification  of details.   It speaks of defence of India and  civil  defence and public safety without change but it expands the idea  of public  interest  into  "maintenance of  public  order,  the efficient conduct of military operations and maintaining  of supplies   and  services  essential  to  the  life  of   the community".  Then it mentions by way of illustration in 739 cl.  (15) of the same section the power of apprehension  and detention  in  custody  of any  person  whom  the  authority empowered by the rules to apprehend or detain (the authority empowered  to detain not being lower in rank than that of  a District Magistrate), suspects, on grounds appearing to that authority to be reasonable               (a)   of being of hostile origin; or               (b)   of  having acted, acting or being  about               to  act  or being likely to act  in  a  manner               prejudicial to-               (i)   the defence of India and civil defence;               (ii)  the security of the State;               (iii) the public safety or interest;               (iv)  the maintenance of public order;               (v)   India’s relations with foreign states;               (vi)  the  maintenance of peaceful  conditions               in any part or area of India; or               (vii) the   efficient  conduct   of   military               operations It  will  thus  appear that security of  the  state,  public safety  or  interest, maintenance of public  order  and  the maintenance  of peaceful conditions in any part or  area  of

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India  may  be viewed separately even  though  strictly  one clause  may  have  an effect or bearing  on  another.   Then follows rule 30, which repeats the above conditions and per- mits  detention of any person with a view to preventing  him from  acting in any of the above ways.  The argument of  Dr. Lohia that the conditions are to be cumulatively applied  is clearly  untenable.  It is not necessary to analyse rule  30 which  we  quoted earlier and which follows  the  scheme  of section  3(15).  The question is whether by taking power  to prevent  Dr. Lohia from acting to the prejudice of "law  and order"  as  against "public order" the  District  Magistrate went outside his powers. The  subject  of  preventive detention  has  been  discussed almost  threadbare  and  one  can  hardly  venture  in   any direction  without  coming  face to  face  with  rulings  of courts.   These  cases are now legion.  It may be  taken  as settled  that  the satisfaction of the  detaining  authority cannot be subjected to objective tests, that the courts  are not  to exercise appellate powers over such authorities  and that  an  order proper on its face, passed  by  a  competent authority  in good faith is a complete answer to a  petition such as this. 740 The  rulings  in our country adopt this approach as  do  the English  Courts.   In  England  one  reason  given  for  the adoption  of this approach was that the power was  entrusted to  the Home Secretary and to the Home Secretary alone.   In India courts are ordinarily satisfied on the production of a proper order of detention made in good faith by an authority duly  authorised and have not enquired further  even  though the power is exercised by thousands of officers  subordinate to  the  Central and State Governments as  their  delegates. When from the order itself circumstances appear which  raise a  doubt whether the officer concerned had not  misconceived his own powers, there is need to pause and enquire.  This is more  so when the exercise of power is at the  lowest  level permissible  under  the Defence of India Act.   The  enquiry then  is not with a view to investigate the  sufficiency  of the  materials but into the officer’s notions of his  power, for  it  cannot be conceived for a moment that even  if  the court  did  not  concern itself  about  the  sufficiency  or otherwise  of  the materials on which action  is  taken,  it would,  on proof from the order itself that the officer  did not  realise the extent of his own powers, not question  the action.   The  order  of  detention  is  the  authority  for detention.   That is all which the detenu or the  court  can see.   It discloses how the District Magistrate  viewed  the activity  of  the detenu and what  the  District  Magistrate intended  to prevent happening.  If the order passed by  him shows  that he thought that his powers were  more  extensive than  they actually were, the order might fail to be a  good order. The District Magistrate here acted to maintain law and order and  not public order.  There are only two  possibilities  : (i)  that there was a slip in preparing the order,  or  (ii) that  maintenance  of law and order was in the mind  of  the District  Magistrate and he thought it meant the same  thing as  maintenance of public order.  As to the first it may  be stated at once that the District Magistrate did not  specify it  as such in his affidavit.  He filed an earlier order  by him in which he had used the words "public order" and  which we have quoted earlier.  That order did not refer to his own state  of  the  mind  but  to  the  report  of  the   Senior Superintendent  of  Police.  In his affidavit  he  mentioned "public order" again but did not say that the words "law and

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order"  in  his order detaining Dr. Lohia were a  slip.   He corrected  the error about the notification but naively  let pass the other, and more material error, without any remark. Before  us  every  effort possible  was  made  to  reconcile "public order" with "law and order" as, indeed, by a process of  paraphrasing,  it  is  possible  to  raise  an  air   of similitude  between  them.  Such similitude is  possible  to raise even between phrases as dissimilar as "for  preventing breach of the peace", "in the 741      interest of the public", "for protecting the  interests of  a  class of persons", "for administrative  reasons"  and "for   maintaining  law  and  order".   We  cannot   go   by similitude.   If public order connotes  something  different from  law  and order even though there may  be  some  common territory   between   them  then  obviously   the   District Magistrate  might have traversed ground not  within  "public order".   It  would  then not do to say that the  action  is deferrable  to  one  power rather than the  other,  just  as easily  as one reconciles diverse phrases by a gloss.   When the  liberty  of  the citizen is put  within  the  reach  of authority and the scrutiny from courts is barred, the action must  comply not only with the substantive  requirements  of the  law but also with those forms which alone can  indicate that the   substance  has  been  complied  with.    It   is, therefore, necessary to examine critically, the order  which mentioned  "law  and  order" with  a  view  to  ascertaining whether  the  District Magistrate did not  act  outside  his powers. Before  we  do  so  we find it necessary  to  deal  with  an argument of Mr. Shastri who followed Mr. Verma.  He contends that  there is no magic in using the formula of the Act  and Rules  for  the  language of the Act and the  Rules  can  be quoted  mechanically.   We  regret such  an  attitude.   The President  in  his Order takes away the  fundamental  rights under  Arts.  21 and 22 from a person provided he  has  been detained under the Defence of India Act or the    rules made thereunder.  The Order is strict against the citizen but  it is  also  strict  against the authority.  There  can  be  no toleration of a pretence of using the Defence of India  Act. The  President’s  Order itself  creates  protection  against things such as arbitrariness, misunderstood powers,  mistake of  identity by making his order apply only to  cases  where the detention is under the Act or the rules thereunder.   No doubt, what matters is the substance but the form  discloses the  approach  of  the detaining authority  to  the  serious question and the error in the form raises the enquiry  about the  substance.   It is not every error in the  order  which will  start such an enquiry.  We have paid no  attention  to the error in the reference to the notification because  that may well be a slip, and power and jurisdiction is referrable to  the notification under which they would  have  validity. The other is not such a veneal fault.  It opens the door  to enquiry what did the District Magistrate conceive to be  his powers ? In  proceeding  to discuss this question we may  consider  a decision of the Court of Appeal in England in Carltona  Ltd. v.  Commissioners of Works and Others(1).  Curiously  enough it was 1.   [1943] 2 All.  E.R. 560. 742 brought  to  our notice by Dr. Lohia and not  by  the  other side.  That case arose under Regulation 51(1) of the Defence (General) Regulations in England during the last World  War. The Regulation read :

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             "A competent authority, if it appears to  that               authority  to be necessary or expedient so  to               do in the interests of the public safety,  the               defence   of  the  realm  or   the   efficient               prosecution  of  the war, or  for  maintaining               supplies and services essential to the life of               the  community,  may take  possession  of  any               land,  and may give such directions as  appear               to the competent authority to be necessary  or               expedient  in  connection with the  taking  of               possession of that land."               There  was an order against Carltona  Ltd.  by               the  Commissioner of Works requisitioning  the               factory.  The order read:               "I have to inform you that the department have               come  to the conclusion that it is  essential,               in  the national interest, to take  possession               of the above premises occupied by you." It  was objected on behalf of the Company that the mind  was not  directed to any one of the various heads  mentioned  in the  Regulation  which were put in  the  alternative.   Lord Greene,  M.R. speaking on behalf of Lord Goddard (then  Lord Justice) and Lord du Parcq (then Lord Justice) observed :               "It  was  said  that it was the  duty  of  the               person acting in the capacity of ’a  competent               authority’  to examine the facts of  the  case               and  consider  under which, if any,  of  those               various heads the matter came, and it is  said               that  the assistant secretary did  nothing  of               the  kind.   It is to be observed  that  those               heads are not mutually exclusive heads at all.               They  overlap at every point and many  matters               will fall under two or more of them, or  under               all four.  I read the evidence as meaning that               the assistant secretary, seeing quite  clearly               that  the case with which he was  dealing  and               the  need  that he wished to satisfy  was  one               which  came  under  the  regulation,  did  not               solemnly  sit down and ask himself whether  it               was  for the efficient prosecution of the  war               that this storage was required for maintaining               supplies and services essential to the life of               the  community.  He took the view that it  was               required either for all those purposes, or, at               any               743               rate, for some of them, and I must confess  it               seems to me that it would have been a waste of               time  on  the facts of this  case  for  anyone               seriously  to sit down and ask  himself  under               which  particular  head  the  case  fell.   He               regarded  it, as I interpret his evidence,  as               falling under all the heads, and that may very               well be having regard to the facts that  these               heads   overlap  in  the  way  that   I   have               mentioned.   It seems to me,  therefore,  that               there  is no substance in that point, and  his               evidence  makes  it quite clear  that  he  did               bring his mind to bear on the question whether               it   appeared  to  him  to  be  necessary   or               expedient to requisition this property for the               purposes named, or some of them."               The  case is distinguishable on more than  one               ground.   To  begin  with, it  dealt  with  an               entirely  different  situation  and  different

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             provision   of  law.   No  order  in   writing               specifying  satisfaction on any or all of  the               grounds  was required.  Detention under  Regu-               lation   18-B  required  an  order   just   as               detention under the Defence of India Act.  The               distinction between action under Regulation 51               and that under Regulation 18-B was noticed  by               the Court of Appeal in Point of Ayr Collieries               Ltd. v. Lloyd-George(").  It is manifest  that               when property was requisitioned it would  have               been  a futile exercise to  determine  whether               the act promoted the efficient prosecution  of               the  war, or the maintaining of  supplies  and               services.   But when a person  is  apprehended               and  detained it may be necessary to  set  out               with  some accuracy what he did or was  likely               to  do  within the provisions of Rule  30,  to               merit  the detention.  The use of  one  phrase               meaning  a  different thing in place  of  that               required  by the Act would not do, unless  the               phrase  imported means the same thing  as  the               phrase  in the Act.  Here the phrase  used  is               maintenance  of law and order and we must  see               how  that  phrase  fits into  the  Rule  which               speaks of maintenance of "public order".   The               words  "public order" were considered on  some               previous  occasions  in  this  Court  and  the               observations made them are used to prove  that               maintenance of public order is the same  thing               as  maintenance  of law and order.   We  shall               refer to some of these observations before  we               discuss the two phrases in the context of  the               Defence of India Rules.               Reliance  is first placed upon a  decision  of               the  Federal  Court in Lakhi  Narayan  Das  v.               Province  of Bihar(2) where the Court  dealing               with  item 1 of Provincial List, 7th  Schedule               in  the  Government of India Act,  1935  which               read-               1. [1943] 2 All.  E.R. 546 at 548.               2. [1949] F.C.R. 693 at 704.               744               .lm15               Public order (but not including the use of His               Majesty’s  naval, military or air  -forces  in               aid of the civil power) " observed that "public Order" with which that item began  was "a  most  comprehensive term".  Reference is  also  made  to Ramesh Thapar v. State of Madras(1) where this Court  dealing with the same subject matter also observed :               ". . . .’Public order is an expression of wide               connotation   and  signifies  that  state   of               tranquillity which prevails among the  members               of a political society as a result of internal               regulations  enforced by the Government  which               they  have established it must be  taken  that               ’public safety’ is used as a part of the wider               concept of public order               and   referring  to  Entry  3  in   List   III               (Concurrent  List) of the 7th Schedule of  the               Constitution which includes the "security of a               State"  and "maintenance of public  order"  as               distinct topics of legislation, observed-               in the field of public order or  tranquillity,               marking  off,  may be, roughly,  the  boundary

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             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." Fazl  Ali  J. took a different view which he  had  expressed more, fully in Brijbhushan and Another v. the State of Delhi (  2 ) but he also observed that "public safety" had,  as  a result of a long course of legislative practice, acquired  a well  rccognised meaning and was taken to denote  safety  or security of the State and that the expression "public order" was  wide  enough to cover small disturbances of  the  peace which  do  not  jeopardise the security  of  the  State  and paraphrased  the  words  "public  order’  as  public   tran- quillity." Both the aspects of the matter were again before this  Court in  The  Superintendent  Central Prison,  Fatehgarh  v.  Ram Manohar Lohia(3) when dealing with the wording of clause (2) of Art. 19 as amended by the Constitution (First  Amendment) Act, 1951, it 1.  [1950] S.C.R. 593 at 598. 2. [1950] S.C.R. 605. 3.   [1960] 2 S.C.R. 821. 745 fell to be decided what "public order" meant.  Subba Rao  J. speaking  for the Court referred to all earlier rulings  and quoting from them came to the conclusion that "public order" was equated with public peace and safety and said :                "........  Presumably  in an attempt  to  get               over  the effect of these two  decisions,  the               expression "public order" was inserted in Art.               19(2) of the Constitution by the  Constitution               (First  Amendment) Act, 1951, with a  view  to               bring  in offences involving breach of  purely               local  significance within the scope  of  Art.               19.........."               Summing  up the position as he  gathered  from               the earlier cases, the learned Judge observed:               ". . . . . . "Public ordee, is synonymous with               public  safety  and tranquillity:  it  is  the               absence  of  disorder  involving  breaches  of               local  significance  in  contradistinction  to               national upheavals, such as revolution,  civil               strife,  war,  affecting the security  of  the               State;. . . . . . ". These  observations  determine  the  meaning  of  the  words ’public  order" in contradistinction to expressions such  as "public safety", "security of the State".  They were made in different  contexts.  The first three cases dealt  with  the meaning  in  the  legislalative Lists as  to  which,  it  is settled,  we must give as large a meaning as  possible.   In the  last  case the meaning of "public order" was  given  in relation to the necessity for amending the Constitution as a result of the pronouncements oil this Court.  The context in which  the words were used was different, the  occasion  was different and the object in sight was different. We  have  here  a case of detention under  Rule  30  of  the Defence  of  India  Rules  which  permits  apprehension  and detention of a person likely to act in a manner  prejudicial to the maintenance of public order.  It follows that if such a person is not detained public disorder is the  apprehended result.   Disorder is no doubt prevented by the  maintenance of law and order also but disorder is a broad spectrum which

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includes at one end small disturbances and at the other  the most   serious   and  cataclysmic  happenings.    Does   the expression "public ordee’ take in every kind of disorder  or only some ? The answer to this serves to distinguish "public order"  from "law and order" because the latter  undoubtedly takes in all of them.  Public order if disturbed, must  lead to public disorder.  Every breach of the peace does not lead to  public disorder.  When two drunkards quarrel  and  fight there  is  disorder but not public disorder.   They  can  be dealt with under the powers 746 to  maintain  law and order but cannot be  detained  on  the ground that they were disturbing public order.  Suppose that the  two fighters were of rival communities and one of  them tried to raise communal passions.  The problem is still  one of  law and order but it raises the apprehension  of  public disorder.    Other   examples   can   be   imagined.     The contravention of law always affects order but before it  can be said to affect public order, it must affect the community or the public at large.  A mere disturbance of law and order leading  to disorder is thus not necessarily sufficient  for action under the Defence of India Act but disturbances which subvert  the  public order are.  A  District  Magistrate  is entitled  to  take  action under Rule  30(1)(b)  to  prevent subversion of public order but not in aid of maintenance  of law and order under ordinary circumstances. It  will  thus  appear that just as "public  order"  in  the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security  of State",  "law and order" also comprehends disorders of  less gravity  than  those affecting public order".   One  has  to imagine three concentric circles.  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 the State.  By using the  expression "maintenance of law and order" the  District Magistrate  was  widening his own field of  action  and  was adding a clause to the Defence of India Rules. We do not know the material on which the District Magistrate acted.   If we could examine the reasons we may be  able  to say whether the action can still be said to fall within  the other topic public safety.  That enquiry is not open to  us. If  we  looked into the matter from that angle we  would  be acting outside our powers.  The order on its face shows  two reasons.   There  is nothing to show that  one  purpose  was considered to be more essential than the other.  We are not, therefore,   certain  that  the  District   Magistrate   was influenced by one consideration and not both.  The order -of detention is a warrant which authorises action.   Affidavits hardly  improve the order as it is.  If there is  allegation of  bad faith they can be seen to determine the question  of good faith.  If mistaken identity is alleged we can  satisfy ourselves  about  the identity.  But if action is  taken  to maintain law and order instead of maintaining public  order, there is room to think that the powers were misconceived and if there is such a fundamental error then the 7 47 action  remains vulnerable.  It will not be possible to  say that  although maintenance of law and order were  specified, what was considered was the problem of maintenance of public order.  The error is an error of a fundamental character and unlike  quoting a wrong notification.  It is  thus  apparent why one error in the order of detention is admitted but  not

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the other, and why with elaborate arguments it is  attempted to  establish  that "public order"  involves  elements  more numerous  than "law and order" where, in fact, the truth  is the other way. It  may  be  mentioned  that  Dr.  Lohia  claimed  that  the satisfaction  of  the President under Art. 359  is  open  to scrutiny  of  the court.  We have not allowed him  to  argue this point which is now concluded by rulings of this Court. In  our  judgment  the  order  of  the  District  Magistrate exceeded his powers.  He proposed to act to maintain law and order  and the order cannot now be read differently even  if there  is  an  affidavit the other way.   We  have  pondered deeply   over  this  case.   The  action  of  the   District Magistrate was entirely his own.  He was, no doubt, facing a law and order problem but he could deal with such a  problem through the ordinary law of the land and not by means of the Defence of India Act and the Rules.  His powers were limited to taking action to maintain public order.  He could not run the  law  and  order  problems in  his  District  by  taking recourse  to the provisions for detention under the  Defence of  India Act.  If he thought in terms of "public ordee’  he should have said so in the order or explained how the  error arose.   He  does  neither.  If the needs  of  public  order demand  action  a  proper  order  should  be  passed.    The detention  must,  therefore, be declared to be  outside  the Defence  of India Act, 1962 and the Rules  made  thereunder. Dr.  Lohia  is entitled to be released from custody  and  we order accordingly. Raghubar   Dayal,  J.  In  this  writ  petition  Dr.   Lohia challenges  the validity of the order made by  the  District Magistrate,  Patna, dated August 9, 1965, under cl.  (b)  of sub-r.  (1)  of r. 30 of the Defence of India  Rules,  1962, hereinafter called the Rules.  This order is as follows :               "Whereas  1, J. N. Sahu, District  Magistrate,               Patna, am satisfied with respect to the person               known as Dr. Ram Manohar Lohia, Circuit House,               Patna that with a view to preventing him  from               acting in any manner prejudicial to the public               safety and the maintenance of law and               748               order,  it is necessary to make an order  that               he be detained.               Now, therefore, in the exercise of the  powers               conferred  by  clause (b) of sub-rule  (1)  of               rule  30 of the Defence of India  Rules,  1962               read  with Notification No. 180/CW  dated  the               20th  March  1964  of  the  Govt.  of   Bihar,               Political   (Special)  Department,  1   hereby               direct that the said Dr. Ram Manohar Lohia  be               arrested  by  the police  wherever  found  and               detained in the Central Jail Hazaribagh, until               further orders." If this order is valid, Dr. Lohia cannot move this Court for enforcement  of his rights conferred by arts. 21 and  22  of the  Constitution,  in view of the Order  of  the  President dated November 3, 1962, in the exercise of powers  conferred on him by cl. (1) of art. 359 of the Constitution. Dr.  Lohia  has  challenged the validity of  this  order  on several  grounds.   I  agree with  the  views  expressed  by Hidayatullah J., about all the contentions except one.  That contention   is  that  the  appropriate  authority  is   not empowered to order detention with a view to prevent a person from acting in any way prejudicial to the maintenance of law and order.  It is urged that though the District  Magistrate could  order the detention of the petitioner with a view  to

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prevent him from acting in any way prejudical to the  public safety  and  the maintenance of public order, he  could  not order  detention with a view to prevent the petitioner  from acting prejudicially to the public safety and maintenance of law  and order, as the latter object, being  not  synonymous with the object of preventing him from acting prejudicial to public order, is outside the purview of the provisions of r. 30(1) of the rules and that, therefore, the entire order  is bad.  I do not agree with this contention. Under  r. 30(1)(b), the District Magistrate could have  made the  order of detention with respect to Dr. Lohia if he  was satisfied  that  he be detained with a view to  prevent  him from  acting in any manner prejudicial to public  safety  or maintenance   of   public  order.   Such   satisfaction   is subjective and not objective.  The Court cannot  investigate about  the  adequacy  of  the  reasons  which  led  to   his satisfaction.   The Court can, however, investigate  whether he exercised the power under r. 30 honestly and bona fide or not i.e., whether he ordered detention on being satisfied as required  by r. 30. What is crucial for the validity of  the detention  order  is such satisfaction and not the  form  in which the detention order is framed.  A detenu can  question the validity of the detention order-valid 749 on its face-on various grounds including that of mala fides. The  onus  will  be  on him to prove  mala  fides.   He  can question  the  validity of the detention order on  the  same ground when, on its face, it appears to be invalid.  In such a  case  the  onus will be on  the  detaining  authority  to establish that it was made bona fide. An  order  is  made mala fide when it is not  made  for  the purpose laid down in the Act or the rules and is made for an extraneous purpose.  The contention of the petitioner to the effect  that  the  detention order cannot  be  made  on  the satisfaction of the detaining authority that it is necessary to  prevent him from acting in a manner prejudicial  to  the maintenance  of  law and order, in effect,  amounts  to  the contention that it is made mala fide. The detaining authority is free to establish that any defect in the detention order is of form only and not of substance, it being satisfied of the necessity to detain the person for a  purpose  mentioned in r. 30 though the purpose  has  been inaccurately  stated in the detention order.  The  existence of  the  satisfaction required by r. 30 does not  depend  on what is said in the detention order, and can be  established by  the  District  Magistrate by  his  affidavit.   We  have therefore  to  examine whether the District  Magistrate  was really  satisfied  about the necessity to detain  Dr.  Lohia with  a  view  to  prevent  him  from  acting  in  a  manner prejudicial  to  public  safety and  maintenance  of  public order. The  impugned  order was passed under r. 30 (1) (b)  of  the rules.   The  District  Magistrate  decided  to  detain  the appellant  with  two objects, firstly, to prevent  him  from acting  in  any  way  prejudicial  to  public  safety   and, secondly, to prevent him from acting in any way  prejudicial to   the  maintenance  of  law  and  order.   The   District Magistrate has-even in the absence of any such contention as under  discussion and which was raised after the  filing  of the District Magistrate’s affidavit-said that having  regard to,  inter alia, the circumstances which were developing  in Patna on August 9, 1965, he was fully satisfied, in view  of the  report  made by the Senior  Superintendent  of  Police, Patna, in regard to Dr. Lohia’s conduct and activities, that it  was necessary to direct that he be detained in order  to

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prevent him from acting further in any manner prejudicial to the public safety and maintenance of public order.  There is no reason to disbelieve his statement.  His original  order, set out below, bears out this statement of his in his  later affidavit :               "Perused the report of the Senior S. P.  Patna               for  detention of Dr. Ram Manohar Lohia,  M.P.               under rule               7 50               30(1)  (b) of the Defence of India  Rules,  on               the   ground  that  his  being  at  large   is               prejudicial   to   the   public   safety   and               maintenance of public order.  From the  report               of the Sr.  S. P., Patna, I am satisfied  that               Dr.  Ram  Manohar Lohia, M.P.,  aforesaid,  be               detained  under rule 30(1) (b) of the  Defence               of India Rules.  Accordingly, I order that Dr.               Ram  Manohar Lohia be detained under  rule  30               (1)  (b)  of the Defence of India  Rules  read               with Notification No. 180/CW dated 20-3-64  in               the  Hazaribagh  Central  Jail  until  further               orders." The  District Magistrate’s omission to repeat in the  second sentence where he speaks of his satisfaction that Dr.  Lohia be  detained  with  a view to  preventing  him  from  acting prejudicially to the public safety and maintenance of public order,  does not mean that he was not so satisfied when  the earlier sentence makes reference to the report of the Senior Superintendent  of  Police for detaining Dr.  Lohia  on  the ground  of  his being at large to be prejudicial  to  public safety and maintenance of public order. The   District  Magistrate  referred,  in  para  3  of   his affidavit,  to his satisfaction that the forces of  disorder which  were  sought  to  be  let  loose,  if  not   properly controlled,  would  envelop  the whole State  of  Bihar  and possibly  might spread in other parts of the  country  which would necessarily affect the problem of external defence  as well  in  more  ways than one.  The  possibilities  of  such forces  of disorder spreading to other parts of the  country satisfied him with the necessity of taking immediate  action to neutralize those forces.  It appears from his  statements in  paras  6  and  7  of  the  same  affidavit  that  actual disturbances took place at Patna that day and that he had to operate from the Control Room.  In para 9 he states that the action taken against Dr. Lohia was purely for the purpose of maintenance  of public peace in the circumstances stated  by him earlier. In  his rejoinder affidavit Dr. Lohia states with  reference to  the  alleged  forces  of disorder  referred  to  by  the District  Magistrate that even if he was promoting what  the executive  would call ‘forces of disorder’, he was doing  so not  with a view to impair the defences of the  country  but further  to  strengthen them, that the  various  allegations made against him were extraneous to the scope and purpose of the legislative provisions of the proclamations of emergency which  had  no rational relationship  to  the  circumstances which were developing in Patna on August 9, 1965. 751 Even  in his original affidavit Dr. Lohia stated in  para  6 that :               "It  is also revealing to note that after  the               events   of   the   9th   August   for   which               responsibility  should have been sought to  be               fixed  either through trial or enquiry, on  me               or  Government or anybody else, I addressed  a

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             crowd of nearly a lakh for over an hour  after               seven in the evening." The  setting of the events that appear to have  happened  at Patna  on August 9, 1965 further bear out the  statement  of the  District  Magistrate  that  he  was  satisfied  of  the necessity  to detain Dr. Lohia in order to prevent him  from acting in a manner prejudicial to public order. Further, the expression ’maintenance of law and order’is not used in cl. (1) of r. 30.  The corresponding expression used therein   is  ’maintenance  of  public  order’.    The   two expressions are not much different.  The expression  ’public order’ has been construed by this Court in a few cases,  the latest  of  them being The Superintendent,  Central  Prison, Fatehgarh v. Ram Manohar Lohia(1) wherein it was said at  p. 839 :               "’Public  order’  is  synonymous  with  public               safety and tranquillity: it is the absence  of               disorder    involving   breaches   of    local               significance in contradistinction to  national               upheavals,  such as revolution, civil  strife,               war, affecting the security of the State." The  expression ’maintenance of law and order’  would  cover ’maintenance of public safety and tranquillity’. it -may be, as  urged for the petitioner, an expression of wider  import than public order but, in the context in which it is used in the  detention  order and in view of its use  generally,  it should be construed to mean maintenance of law and order  in regard to the maintenance of public tranquillity.  It is not usually used merely with reference to enforcement of law  by the  agency of the State prose cuting offenders against  any of  the  numerous laws enacted for the purposes of  a  well- regulated society.  Simple and ostensibly minor incidents at times  lead  to  widespread  disturbances  affecting  public safety and tranquillity. Reference may be made to the case reported as Sodhi Shamsher Singh  v. State of Pepsu(2).  In that case  certain  persons were 1. [1960] 2 C.S.R.821. 2. A.I.R.1954 S.C. 276. 7 52 detained  under an order under S. 3 ( 1 ) of the  Preventive Detention  Act, 1950, on grounds which, in  substance,  were that  one  of  them had published  certain  pamphlets  whose circulation,  in  the opinion of the Government,  tended  to encourage  the  Sikhs to resort to acts of  lawlessness  and plunge  the Hindus into a feeling of utter  frustration  and discouragement  and consequently to make them take  the  law into  their  hands  for the  redress  of  their  grievances. Section 3(1) of the Preventive Detention Act, 1950, reads : "The Central Government or the State 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  defence of India, the relations  of               India with foreign powers, or the security  of               India, or               (ii)  the   security  of  the  State  or   the               maintenance of public order, or               (iii)....               (b)   .  . . ., make an order  directing  that               such person be detained." This Court used the expression ’maintenance of law and ordee in place of ’maintenance of public order’ used in s. 3 ( 1 ) (a)  (ii) at three places in paras 4 and 5 of the  judgment. I do not refer to these to show that the Court has construed

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the expression ’maintenance of public order’ as ’maintenance of  law  and  ordee’  but to  reinforce  my  view  that  the expression ’maintenance of law and order’ is generally  used for ’maintenance of public safety and tranquillity’ which is covered  by the expression ’public ordee.  When  this  Court used  this  expression in place of  ’maintenance  of  public order’  I cannot conclude, as urged by the petitioner,  that the District Magistrate’s using the expression  ’maintenance of  law and order’ in place of ’maintenance of public  ordee is  any indication of the fact that he had not  applied  his mind  to the requirements of the provisions of r.  30(1)  or had  not  actually  come  to  the  conclusion  that  it  was necessary  to  detain Dr. Lohia with a view to  prevent  him from acting in any manner prejudicial to the maintenance  of public order. If the expression ’maintenance of law and order’ in the  im- pugned  order be not construed as referring to  ’maintenance of  public  order’ the impugned order cannot be said  to  be invalid in 753 view  of it being made with a double objective,  i.e.,  with the object of preventing Dr. Lohia from acting prejudicially to  the public safety and from acting prejudicially  to  the maintenance  of law and order.  If the  District  Magistrate was  satisfied, as the impugned order and the  affidavit  of the  District Magistrate show that he was satisfied that  it was necessary to detain Dr. Lohia with a view to  preventing him from acting prejudicially to public safety, that   itself would  have justified his passing the impugned  order.   His satisfaction  with respect to any of the purposes  mentioned in r.     30  (1)  which  would  justify  his  ordering  the detention of a person is sufficient for the validity of  the order.   There is no room for considering that he might  not have  passed  the impugned order merely with one  object  in view,  the  object being to prevent Dr.  Lohia  from  acting prejudicially to public safety.  The entire circumstances in which  the order has been made and which I have referred  to earlier, point to that. The  question  before  us  is not really  at  par  with  the question’   that  arose  in  Romesh  Thappar  v.  State   of Madras(1).  In that case the provisions impugned were  those of a statute whose language authorised the passing of orders which  could be constitutional in certain circumstances  and unconstitutional in others.  In such a context, it was  said that  where  a law purports to authorize the  imposition  of restrictions on a fundamental right in language wide  enough to cover restrictions both within and without the limits  of constitutionally  permissible legislative  action  affecting such  right, it is not possible to uphold it even so far  as it may be applied within the constitutional limits, as it is not  severable;  so  long as the possibility  of  its  being applied  for  purpoes  not sanctioned  by  the  Constitution cannot  be  ruled  out,  it  must  be  held  to  be   wholly unconstitutional  and void.  It was so held  as,  otherwise, the orders passed for purposes not sanctioned by the Consti- tution  would  have  been in accordance with  the  law  held valid.  The validity of the orders passed under a valid law- the Defence of India Act and the rules have to be assumed to be  valid--depends  on their being made by  the  appropriate authority  in accordance with the law empowering it to  pass the orders. The question before us is also not at par with the  question which  often arises in construing the validity of  detention orders  passed  under the Preventive Detention Act  for  the reason that some of the grounds for the satisfaction of  the

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appropriate authority were irrelevant or non-existent.   The presence  of  such grounds raised the question  whether  the remaining good grounds would 1. [1950] S.C.R. 594. 2. C & I./65-5 7 54 have   led  the  authority  to  the   requisite   subjective satisfaction  for ordering detention.  In the present  case, however, the question is different.  The question is whether the  District  Magistrate  would  have  made  the  order  of detention  on his satisfaction merely to the effect that  it was necessary to detain Dr. Lohia with a view to prevent him from acting in a manner prejudicial to public safety.  It is not  that his satisfaction is based on two grounds,  one  of which is irrelevant or non-existent. Even in such cases, this Court has held in Dwarka Das  State of J & K(1):               "The principle underlying all these  decisions               is this.  Where power is vested in a statutory               authority to deprive the liberty of a  subject               on its subjective satisfaction with  reference               to specified matters, if that satisfaction  is               stated  to be based on a number of grounds  or               for a variety of reasons, all taken  together,               and  if some out of them are found to be  non-               existent  or irrelevant, the very exercise  of               that  power  is bad.  That is so  because  the               matter being one for subjective  satisfaction,               it  must be properly based on all the  reasons               on  which  it purports to be based.   If  some               out’  of them are found to be non-existent  or               irrelevant,  the Court cannot  predicate  what               the   subjective  satisfaction  of  the   said               authority would have been on the exclusion  of               those  grounds  or  reasons.   To  uphold  the               validity  of  such an order in  spite  of  the               invalidity  of some of the reasons or  grounds               would be to substitute the objective standards               of  the Court for the subjective  satisfaction               of the statutory authority.  In applying these               principles,   however,  the  Court   must   be               satisfied that the vague or irrelevant grounds               are  such  as, if excluded,  might  reasonably               have  affected the subjective satisfaction  of               the  appropriate authority.  It is not  merely               because  some ground or reason of  a  compara-               tively  unessential nature is  defective  that               such an order based on subjective satisfaction               can be held to be invalid." As  stated earlier, there does not appear to be  any  reason why the District Magistrate would not have passed the  order of  detention against Dr. Lohia on his satisfaction that  it was  necessary to prevent him from acting  prejudicially  to public safety.  On such 1.   A.I.R. 1957 S.C 164,168. 755 satisfaction, it was incumbent on him to pass the order  and he must have passed it. I am therefore of opinion that the District Magistrate  made the impugned detention order on his being satisfied that  it was necessary to do so with a view to prevent Dr. Lohia from acting    in  a  manner  prejudicial to  public  safety  and maintenance  of public order and that the impugned order  is valid.   Consequently, Dr. Lohia cannot move this Court  for the  enforcement of His rights under arts. 21 and 22 of  the

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Constitution  in  view of the President’s Order  under  art. 359(1) of the Constitution.  I would dismiss this petition. Mudholkar,  J I agree that the petition of Dr.  Ram  Manohar Lohia under Art. 32 of the Constitution be granted and would briefly indicate my reasons for granting it. At  the  outset I shall consider an objection of Mr.  S.  P. Varma  on  behalf of the State as to the tenability  of  the petition.   The objection is two-fold.  In the first  place, according  to him, in view of the Proclamation made  by  the President  under Art. 359 this Court has no jurisdiction  to entertain  it.  In the second place his contention  is  that the order of detention made against the petitioner being one under  the Defence of India Rules, he cannot  challenge  the validity  of  his  detention thereunder in  any  court.   In support  of  these  contentions  Mr.  Varma  relies  on  the decision   of  this  Court  in  Mohan  Choudhury  v.   Chief Commissioner,  Tripura  (1).  In that case this  Court  has, while holding that the right of a person whose detention has been  ordered under the Defence of India Rules to  move  any court for the enforcement of his rights under Art. 21 of the Constitution  is  suspended. during the continuance  of  the emeregency declared by the President by a Proclamation under Art.  352, held that the powers conferred on this  Court  by Art.  32 of the Constitution are not suspended.  It is  true that  where a person has been detained under the Defence  of India Rules he cannot move this Court under Art. 32 for  the enforcement of his right under Art. 21 and so there will  be no occasion for this Court to exercise its powers under that article in such a case.  But what would be the position in a case  where  an order for detention purporting  to  be  made under  the Defence of India Rules was itself one  which  was beyond  the scope of the Rules ? For, before an  entry  into the portals of this Court can be denied to detenu he I  must be  shown  an order under r. 30(1) of the Defence  of  India Rules  made  by  a competent authority stating  that  it  is satisfied 1.   [1964] 3 S.C.R. 442. 7 56 that  the  detenu is likely to indulge in  activities  which will  be prejudicial to one or more of the matters  referred to  in  the rule.  If the detenu contends  that  the  order, though  it purports to be under r. 30(1) of the  Rules,  was not  competently  made, this Court has the  detenu  contends that the order. though it purports to be under order if  the Court  finds  that  it  was  not  competently  made  or  was ambiguous  it must exercise its powers under Art. 32 of  the Constitution, entertain his petition thereunder and make  an appropriate order. In  this  case the District Magistrate, Patna  purported  to make  an  order under r. 3 0 ( 1 ) of the Defence  of  India Rules.  The State has placed on record copies of two  orders :  one  is  said  to have  been  recorded  by  the  District Magistrate  on his file and another which was served on  Dr. Lohia.   We  are not concerned with the former  because  the operative  order must be the one served on the detenu.   The District  Magistrate may well keep the former in the  drawer of  his table or alter it as often as he likes.  It  cannot, therefore, be regarded as anything more than a draft  order. The  order which finally emerged from him and was served  on the  detenu would thus be the only one which  matters.   The grounds for detention given in the latter order are that Dr. Lohia’s  being at large is prejudicial to public safety  and maintenance  of law and order.  Under r. 30(1) an  order  of detention of a person can be made "with a view to preventing him from acting in any manner prejudicial to the defence  of

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India  and civil defence, public safety, the maintenance  of public  order,  India’s relations with foreign  powers,  the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the  maintenance of  supplies  and  services essential to  the  life  of  the community".   I  find  it difficult to  accept  Dr.  Lohia’s argument  that the appropriate authority must  entertain  an apprehension  that  the person to be detained is  likely  to participate  in every one of the activities referred  to  in the rule.  To accept it would be, apart from making a depar- ture  from the rules of grammar, (for doing which  no  valid grounds  exist),  making not only the rule in  question  but also s. 3 of the Defence of India Act where similar language is  used  almost  ineffective.  What  has,  however,  to  be considered is his other argument.  The question posed by the argument is whether an authority competent to make an  order under the aforesaid provision can make such an order on  the ground  that the authority feels it necessary to  prevent  a person  from  acting  in  any  manner  prejudicial  to   the maintenance  of  law  and order.  The  expression  "law  and ordee’  does  not  find any place in the  rule  and  is  not synonymous  with "public order’.  It s to me that  "law  and order" is a comprehensive expression 757 in  which  would be included not merely  public  order,  but matters such as public peace, tranquillity, orderliness in a locality  or  a local area and perhaps some  other  matters. "Public   order"  is  something  distinct  from   order   or orderliness  in  a local area.  Under r. 30(1) no  power  is conferred  upon  that authority to detain a  person  on  the ground  that  it is necessary so to do in order  to  prevent that person from acting in a manner prejudicial to the main- tenance  of  order  in a local area.  What is  it  that  the District  Magistrate, Patna had in mind when he ordered  the detention   of  the  petitioner  ?  Was   the   apprehension entertained  by the District Magistrate that Dr.  Lohia,  if left  at  large,  was likely to do  some  thing  which  will imperil the maintenance of public order generally or was  it that  he apprehended that Dr. Lohia’s activities  may  cause disturbances  in  a particular locality?  There is  thus  an ambiguity on the face of the order and, therefore, the order must be held to be bad.  No doubt, the order also refers  to the  apprehension felt by the District Magistrate about  Dr. Lohia’s  acting  in a manner prejudicial to  public  safety. But  then the question arises, what is it that weighed  with the  District Magistrate, the apprehension regarding  public safety  or an apprehension regarding the maintenance of  law and  order ? Again, would the District Magistrate have  made the order solely on the ground that he felt apprehension re- garding  the  maintenance of public safety  because  of  the activities in which he thought Dr. Lohia might indulge ?  It could well be that upon the material before him the District Magistrate  would have refrained from making an order  under r. 30 solely upon the first ground.  Or on the other hand he would  have  made the order solely upon  that  ground.   His order,  however, which is the only material on the basis  of which we can properly consider the matter    gives        no indication  that  the District Magistrate  would  have  been prepared to make it only upon the ground relating to  public safety.   In  the  circumstances I agree  with  my  brethren Sarkar  and Hidayatullah that the order of detention  cannot be sustained.  I have not referred to any decisions  because they have already been dealt with fully in the judgments  of my learned brethren.  In the result,    therefore,  I  allow the petition and direct that Dr. Lohia be get at liberty.

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                          ORDER In  view of the majority opinion, we allow the Petition  and order   that the petitioner be set at liberty. 758