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PETITIONER: JAGAN NATH SATHU

       Vs.

RESPONDENT: THE UNION OF INDIA

DATE OF JUDGMENT: 20/01/1960

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. WANCHOO, K.N. SHAH, J.C.

CITATION:  1960 AIR  625            1960 SCR  (2) 784

ACT: Preventive  detention--Status  of Pakistan  in  relation  to India if a foreign power-Grounds of detention-Principles  of natural justice-Preventive Detention Act. 1950 (4 of 1950),- Constitution of India, Item 9, List 1, Seventh Schedule.

HEADNOTE: The  petitioner  was  detained by an order  of  the  Central Government  under  s. 3, of the  Preventive  Detention  Act, 1950.  The Advisory Board which considered the  petitioner’s case  in accordance with the provisions of the Act  did  not recommend  that the order of detention should be  withdrawn. The  allegations  against the petitioner were  that  he  was carrying  on propaganda of hatred and contempt  against  the Government  of India and the State of Jammu and  Kashmir  by sending  for  publication  in  a  widely  published  foreign Newspaper, false, one-sided and misleading information about the  administration of the State and the condition of  India in   general  and  the  said  State  in   particular.    The petitioner’s  contentions,  inter alia, were  that  being  a member  of the Commonwealth, Pakistan, where  the  newspaper was  published,  was  not  a Foreign  State  and  could  not therfore be regarded as a Foreign power, that the principles of  natural justice where violated by the Advisory Board  in considering  the respondent’s case in his absence  and  that materials placed before the Advisory Board were not supplied to him. Held,  that  on a correct interpretation of  the  expression foreign  affairs  "  appearing in Item 9,  List  1,  Seventh Schedule of the Constitution and the words "the relations of India with foreign powers" in S. 3 Of the Act, Pakistan must be  regarded as a foreign power although that country  might be a member of the Commonwealth like India.  Under Art.  367 (3)  a country might not be regarded as a Foreign State  for the purposes of the Constitution but that country might be a foreign  power for other purposes.  The Commonwealth  is  an Association  of  Nations  each  having  a  sovereign  status independent  of  the  other  in  its  internal  and  foreign affairs.

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The  provisions of s. 10 of the Act did not  offend  against the principles of natural justice and the procedure  adopted by  the  Advisory  Board  in the present  case  was  not  in Contravention thereof.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 170 of 1959. Petition  under Article 32 of the Constitution of India  for enforcement of Fundamental rights.                        785 R. V. S. Mani. for the petitioner. C.   K.  Dephtary,  Solicitor-General  of India,  B.  R.  L. lyengar and R. H. Dhebar, for the respondent. 1960, January 20.  The Judgment of the Court   was delivered by IMAM  J.-This petition was heard on January 4, 1960, and  we intimated  that it was being dismissed and reasons  for  the same will follow later.  We proceed to give our reasons now. The  petitioner was detained by an order dated May 4,  1959, of  the Central Government under the provisions of s.  3  of the Preventive Detention Act, 1950 (hereinafter referred  to as  the Act).  The grounds of detention dated May  7,  1959, were  served on the petitioner.  His case was considered  by the  Advisory  Board constituted by the  Central  Government under s. 8 of the Act.  On the report of the Advisory  Board the  Central  Government by its order dated June  23,  1959, directed that the petitioner be detained until May, 4  1960. It  is  against  this order of detention  that  the  present petition under Art. 32 of the Constitution has been filed by the petitioner. The grounds of detention contained 5 grounds upon which  the Central  Government was satisfied that it was  necessary  to detain  the petitioner as he was likely to act further in  a manner  prejudicial  to  the  security  of  India  and   the relations  of  India with foreign powers.   It  was  further stated  in  the  grounds  of  detention  that  the   Central Government  considered  it against the  public  interest  to disclose  to the petitioner any facts or particulars  as  to dates,  persons,  places,  nature  of  activities  and   the assistance  given  by him other than those  which  had  been mentioned  in  the  grounds of detention.   The  grounds  of detention  further  mentioned  that  some  of  the  specimen despatches  sent by the petitioner and some of  the  reports appearing in a newspaper published in Pakistan were  annexed thereto. From  the  grounds  of detention it would  appear  that  the allegation  against  the  petitioner was that  he  had  been engaged in carrying on propaganda against the Government  of India and the Government of the 786 State of Jammu and Kashmir established  by law and   against the administration of that State Government  in   a   manner calculated   to  bring  into  hatred  and       contempt the Government  of tile State and the Government of India;  that in  furtherance of his  propaganda the petitioner  had  been inter  alia sending for publication in a  foreign  newspaper despatches of news and views relating to the State of  Jammu and  Kashmir  containing false,  incomplete,  one-sided  and misleading information about the administration of the State by  the  Government of that State, about the policy  of  the Government of India in relation to that State and about  the conditions in India in general and in the State of Jammu and Kashmir  in  particular;  that  the  said  despatches   were

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published prominently by the said newspaper, having a  large circulation  in Pakistan and other foreign countries,  in  a manner prejudicial to India and her cause in relation to the State  of  Jammu  and Kashmir and also  prejudicial  to  the relations of India with foreign powers ; that the petitioner was  in  regular touch and closely associated  with  several persons who are hostile to the cause of India in relation to the  State  of  Jammu  and  Kashmir  and  were  engaged   in activities prejudicial to the security of India and that the cumulative  effect of the petitioner’s aforesaid  activities was  prejudicial  to  the relations of  India  with  foreign powers in general and particularly in regard to the cause of India  in respect of the State of Jammu and Kashmir and  the maintenance of public order therein. We  have examined the various extracts from  the  despatches sent  by the petitioner annexed to the grounds of  detention served  upon him.  They disclose sufficient  particulars  to enable  the  petitioner  to make  a  representation  to  the Advisory  Board.   Having regard to what  appears  in  these extracts   from  the  despatches  sent  to   the   newspaper concerned,  they disclose sufficient grounds for the  action taken by the Central Government in detaining the petitioner. On  behalf of the petitioner it was urged that the order  of detention was confined only to two matters (1)    that    it was made with a view to preventing the                            787 petitioner  from  acting  in a  manner  prejudicial  to  the relations  of  India  with foreign powers  and  (2)  to  the security  of India. As to the first matter, it  was   argued that Pakistan not being a Foreign State, there  could  be no question  of any act of the petitioner being prejudicial  to the relations of India with foreign  powers.  It was pointed out  that  under Art. 367(3) of the  Constitution,  for  the purposes of the Constitution, Foreign State meant any  State other  than  India.   The  proviso,  however,  enabled   the President,  subject  to the provisions of any  law  made  by Parliament, by order to declare any State not to be  Foreign State  for such purposes as may be specified in  the  order. Reference  was made to the Constitution (Declaration  as  to Foreign  State) Order, 1950 (hereinafter referred to as  the Order)  made  by the Governor General of  India  under  Art. 392(3) of the Constitution read with Art. 367(3).  The Order directed  that it shall come into force at once, that is  to say,  on January 23, 1950.  Clause (2) of the Order  states: "Subject  to the provisions of any law made  by  Parliament, every country within the Commonwealth is hereby declared not to be a Foreign State for the purposes of the Constitution". On behalf of the petitioner it was urged that by the Order,, Pakistan  being a member of the Commonwealth,  was  declared not  to be a Foreign State.  Although the Order was  subject to  the provisions of any law made by Parliament no law  had yet  been enacted by Parliament contrary to the  declaration made by the Order.  Pakistan not being a Foreign State could not therefore be regarded as a foreign power and none of the acts  of  the  petitioner  referred to  in  the  grounds  of detention could therefore be regarded as acts prejudicial to the  relations of India with foreign powers.  The ground  in this respect being an invalid ground the order of  detention must be set aside because even if one ground was an  invalid ground  the  entire  order of detention must  be  set  aside though  other grounds appeared to be valid  grounds,  having regard to certain decisions of this Court. It  was also urged on behalf of the petitioner that none  of the extracts of the, despatches and the grounds 788

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of   detention  disclose  any  word  or  phrase   suggesting incitement  to  violence  or subversion  of  the  Government of  the State of Jammu and Kashmir or of the  Government  of India.  Accordingly, there could be no question   of any act of  the  petitioner  being prejudicial to  the  security  of India. Some  other  submissions were also urged on  behalf  of  the petitioner  with respect to the grounds of  detention  which will be dealt with in due course. It  was  also urged that in violation of the  principles  of natural  justice  the  respondent’s case was  heard  by  the Advisory  Board prior to the case of the petitioner  and  in his absence and that copies of the further materials,  which were  placed  before the Advisory Board by  the  respondent, were not supplied to the petitioner. As already stated the contention on behalf of the petitioner has been that Pakistan is not a Foreign State and  therefore cannot be regarded as a foreign power.  It is true, that  in view  of the Order, for the purposes of the Constitution  of India, Pakistan is nota Foreign State.  There is, however, a distinction  between  a  country not  being  regarded  as  a Foreign State for the purposes of the Constitution and  that country  being  a  foreign power  for  other  purposes.  The Commonwealth is an Association of Nations each of which  has a sovereign status independent of each other in its internal and  foreign  affairs.   They have  a  sovereign  status  as complete as that of any nation which is not a member of  the Commonwealth.  Each  member  of the  Commonwealth  can  have diplomatic  relations  with  each  other  and  with  nations outside   the  Commonwealth.   Indeed,  in  the  matter   of sovereign  status  they  are as independent  as  any  nation outside  the Commonwealth.  It follows, therefore,  that  in their  relations between each other and nations outside  the Commonwealth  they  must be regarded as foreign  powers  and their  affairs as between them are foreign affairs.  In  our opinion,  that  which  is not concerned  with  the  internal affairs  of  a member of the Commonwealth, is  its  external affair, that is to say, a foreign affair.                             789 Under  item  9  of List 1 of the  Seventh  Schedule  of  the Constitution,  Parliament  is empowered to enact  laws  with respect  to preventive detention for reasons connected  with defence,  foreign  affairs  or the security    of  India and persons subjected to such detention.  Under s. 3 of the  Act the  Central  Government or the   State  Government  may, if satisfied  with  respect  to  any person,  with  a  view  to preventing him from acting in any manner prejudicial to  the defence of India, the relations of India with foreign powers or the security of India, make an order directing that  such person be detained, if it thinks it necessary so to do.  The expression  "  Foreign Affairs " includes the  relations  of India  with  foreign powers.  The question for  decision  is whether   Pakistan  is  a  foreign  power.   On  a   correct interpretation  of the meaning of the words " the  relations of  India  with  foreign  powers " we  have  no  doubt  that Pakistan must be regarded as a foreign power, although  that country  may be a part of the Commonwealth as India is.   It has  sovereignty in matters of internal  administration  and external  relations quite independent and disconnected  with the  sovereignty  of  India  or  any  other  member  of  the Commonwealth  in  these  respects.   Pakistan  has  its  own diplomatic relations with various countries including India. Apart   from  its  membership  of  the   Commonwealth,   the independent sovereign status of Pakistan is the same as  the sovereign  status of any country outside  the  Commonwealth.

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It  was,  however,  suggested that the  Order  made  by  the Governor  General  took Pakistan outside the category  of  a foreign  power.   In  our  opinion,  this  is  a  fallacious argument  because  Art. 367(3) itself states  that  for  the purposes of the Indian Constitution Foreign State means  any State  other  than India but the President, and  before  the commencement  of  the Constitution the Governor  General  of India under Art. 392(3), may by order declare any State  not to be a Foreign State for such purposes as may be  specified in  the Order.  In the Order the Governor  General  declared that every country within the Commonwealth was not a Foreign State  for  the  purposes  of  the  Constitution.   In   the Constitution  of India there are various Articles  in  which the expression 790 Foreign  State  appears, e.g., Art. 18(2),  (3),  (4),  Art. 19(2),   Art.   102(1)(d.)  and  Art.  191(1)(d).    It   is clear,therefore.. that under the Order, for the purposes  of these  Articles  or any other Article where  the  expression "Foreign  State" appears, that expression would not cover  a country  within the Commonwealth unless  Parliament  enacted otherwise.   The  Order cannot be brought into aid  for  the purposes  of  construing the  expression  "foreign  affairs" appearing  in item 9 of List 1 of the Seventh  Schedule  and the  expression "foreign powers" in s. 3 of the Act.   These expressions must be construed in the ordinary way giving the words  their  ordinary  meaning.   We  have  no  doubt  that Pakistan  is a foreign power.  Under the provisions  of  the Act  the Central Government and the State Governments  could detain  a person who was acting in a manner  prejudicial  to the  relations  of  India with foreign  powers  which  would include  Pakistan.   It  is to be  further  remembered  that neither  in  the order of detention nor in  the  grounds  of detention there is any mention of Pakistan specifically.  On the  contrary,  in the grounds of detention, it  is  clearly stated  that  the  cumulative  effect  of  the  petitioner’s activities  was prejudicial to the relations of  India  with foreign  powers  in  general (vide grounds 3  and  4).   The grounds  of detention refer to the publication in a  foreign newspaper  of despatches of news and views relating  to  the State of Jammu and Kashmir containing false, incomplete, one sided and misleading information and about the policy of the Government of India in relation to that State.  The extracts of  the  despatches, sent by the petitioner to  the  foreign newspaper,  annexed  to the grounds of detention  show  that they  are  not only prejudicial to the Government  of  India vis-a-vis Pakistan but they are prejudicial to the relations of India with foreign powers in general, the subject of  the affairs of the State of Jammu and Kashmir not being a matter of interest solely to Pakistan but also of interest to other foreign powers. Coming now to objections made as to the grounds of detention : regarding ground No. 1, it was urged that this ground  was outside the scope of the order of                          791 detention.   This ground mentions that the  petitioner    is engaged  in carrying on propaganda against the    Government of  India  and  the Government of the  State  of  Jammu  and Kashmir in such a manner as to bring  these  two Governments into hatred and contempt.  In our opinion, it cannot be said that  this  ground  is  beyond the scope  of  the  order  of detention  because the bringing of the Government  of  India and  the Government of the State of Jammu and  Kashmir  into hatred and contempt does involve the security of India. Regarding  ground  No.  2  it was urged  that  it  does  not

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disclose a single suggestion about the subversive activities of the petitioner, nor does it disclose what portions of the despatches were false, incomplete, misleading or  one-sided. It  was further pointed out that this ground speaks  of  the conditions  in  India  in  general and  the  policy  of  the Government  of India in relation to the State of  Jammu  and Kashmir.   What  the policy of the Government  of  India  is concerning that State is not stated.  All these  allegations were  so  vague that they gave no real  opportunity  to  the petitioner to make a representation.  Similarly,  concerning grounds  3  and  4 it was urged that  the  grounds  did  not disclose  what  was the cause of India in  relation  to  the State   of  Jammu  and  Kashmir.   Here  again,   sufficient particulars were not given to enable the petitioner to  make an  effective representation to the Advisory Board.  In  our opinion, none of these contentions has any substance because with the grounds of detention were annexed extracts from the despatches sent by the petitioner to the newspaper " ]Dawn " published  in  Pakistan.   These  extracts  gave  sufficient particulars  to  enable the petitioner to make  a  represen- tation with respect to all matters stated in the grounds  of detention. Coming now to the submission that the respondent’s case  was heard  before the petitioner’s case and in his  absence  and that copies of further materials placed before the  Advisory Board by the respondent were not supplied to the petitioner, it  is necessary to refer to the procedure to be adopted  by the Advisory Board under 101 792 the  provisions  of  the Act.  Under s.  9,  in  every  case where  a  detention  order has  been  made  the  appropriate Government   must   within  30  days  from   the   date   of detention place before the Advisory Board the grounds,   on which  the order has been made, and the  representation,  if any,  made by the detenus and, in a case where an order  has been  made  by an officer, also the report by  such  officer under sub-s. (3) of s. 3. Section 10 sets out the  procedure which the Advisory Board must follow when reference has been made to it under s. 9. Section 10(1) states : " The Advisory Board shall, after considering the  materials placed  before  it  and,  after  calling  for  such  further information  as it may deem necessary from  the  appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do or  if  the  person concerned desires  to  be  heard,  after hearing him in person, submit its report to the  appropriate Government within ten weeks from the date of detention.  " It  is clear from these provisions that the  Advisory  Board after considering the materials placed before it under s.  9 can  call  for  further  information  from  the  appropriate Government, and that thereafter if in any particular case it considers it essential so to do or if the detenue desires to be  heard,  after  hearing him, submit  its  report  to  the appropriate  Government.  In such a situation  the  Advisory Board must of necessity obtain further information from  the appropriate Government before it hears the detenue.  In  our opinion, there is nothing in s. 10 which offends against the principles  of natural justice.  Furthermore,  the  petition does  not assert as a matter of fact that  the  respondent’s case  was heard in the absence of the  petitioner.   Indeed, the  respondent’s  affidavit does not admit  that  any  such thing happened.

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As  for  the copies of the further materials placed  by  the respondent  before the Advisory Board not being supplied  to the petitioner, it has to be observed that in paragraph 3 of the grounds of detention it was                             793 clearly  stated  that the Central Government  considered  it against  public interest to disclose to the  petitioner  any facts or particulars as to dates, persons, places, nature of activities and the assistance given by him other than  those which   had  already  been  mentioned  in  the  grounds   of detention.   Under  Art.  22(6) of the  Constitution  it  is clearly stated that nothing in cl. (5) of that Article shall require  the  authority  making an  order  of  detention  to disclose facts which such authority considers to be  against public  interest to be disclosed.  In the present  case  the authority  concerned had declined to disclose in the  public interest  any  facts or particulars as  to  dates,  persons, places, nature of activities and the assistance given by the petitioner other than those which had already been mentioned in  the  grounds of detention.  In  such  circumstances,  it would have been entirely inappropriate for the respondent to supply  copies  of the further materials placed  before  the Advisory Board although the Advisory Board may have required further information in order to satisfy itself The petition is accordingly dismissed. Petition dismissed.