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PETITIONER: P.L. LAKHANPAL

       Vs.

RESPONDENT: THE UNION OF INDIA AND ANOTHER

DATE OF JUDGMENT: 07/03/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. HIDAYATULLAH, M. MITTER, G.K.

CITATION:  1967 AIR 1507            1967 SCR  (3) 114  CITATOR INFO :  R          1967 SC1797  (1,3,6,7,8)  APL        1968 SC 327  (1,2,3,4,7,8)  RF         1968 SC 765  (1,17)  E          1972 SC 689  (14)  R          1974 SC  87  (11)

ACT: Defence  of India Rules, 1962, Rules 30(1) (b)  and  30A(9)- Review    of    detention    order--if    quasi     judicial function--opportunity to detenu to make representation.

HEADNOTE: The  petitioner was arrested and detained by an order  dated December  10,  1965 under Rule 30(1)(b) of  the  Defence  of India Rules, 1962.  On June 11, 1966, he was served with  an order  of  the Central Government under Rule 30A(9)  to  the effect  that after a review of the detention order,  it  had been  decided  to continue his  detention.   Writ  petitions filed  by  the petitioner challenging these  two  orders  on various grounds were dismissed.  On December 2, 1966, he was served with another order under Rule 30A(9) stating that the detention  order  had been further reviewed  and  upon  such review the Government had decided that the detention  should continue.   The  petitioner  challenged this  order  by  the present writ petition on the ground, inter alia, that it was passed  in  disregard of the duty of the Government  to  act judicially, implicit in the power conferred on it under Rule 30A(9)  to continue detention, both the function  to  review and the decision thereon being judicial or quasi judicial. It  was contended on behalf of the respondent (i)  that  the order of detention being a purely executive order, an  order of  review  under Rule 30A(9) of the very  circumstances  on which   the   detention  order  was  made   and   subsequent circumstances  would  also be an executive order;  and  (ii) that the impugned order was passed after considering various materials against the petitioner. HELD, allowing the petition : (i) The function entrusted  to the  authority under Rule 30A(9), as distinguished from  the power  under  Rule  30(1)(b),  is  quasi-judicial  and   the decision  which  it  has to arrive at  is  a  quasi-judicial decision.

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To say that because a function is in its inception executive in character,, it retains the executive character throughout would  not  be correct.  Besides, the  function  under  Rule 30(1)(b) and that under Rule 30A(9) is not one and the same. The former is completed -,is soon -as an order of  detention is  made; the latter is independent of the former and is  to be exercised after detention has gone on for a period of six months.   Whereas  the  function  under  Rule  30(1)(b)   is executive,  the one under Rule 30A(9) is quasi-judicial  and therefore in exercising it the rules of natural justice have to be complied with. [123 D-F] (ii) It was a admitted that the petitioner was not given any opportunity  of  representing  his case  or  to  correct  or contradict  the evidence on which the Government  admittedly relied before passing the order of December 2. 1966.   There was therefore a breach of principles of natural justice  and the order of continuation of detention was illegal -and must be quashed. [123 F-G; 124 C-D] Sadhu  Singh v. Delhi Administration, [1966] 1  S.C.R.  243, dissented from. 115 P.L.  Lakhanpal  v. The Union of India and  Anr.,  [1967]  1 S.C.R. 433,P.  L.  Lakhanpal  v.  The  Union  of  India  and another,  [1966]  Supp.  S.C.R. 209, Board of  Education  v. Rice,  [1911] A.C. 182; Local Government Board  v.  Arlidge, [1915] A.C. 120 at p. 132; Province of Bombay v. Kusaldas S. Advani,  [1950] S.C.R. 621, 725; Nagendra Nath Bora, v.  The Commissioner   of  Hills  Division,  [1958]   S.C.R.   1240; Radheshyam  Khare  v.  The State of Madhya  Pradesh,  [1959] S.C.R.  1440;  Gullapalli Nageswara Rao  v.  Andhra  Pradesh State  Road  Transport Corporation, [1959] Supp.   1  S.C.R. 319; Shivji Nathubhai v. The Union of India, (1960] 2 S.C.R. 775;  Board of High School and Intermediate Education,  U.P. v. Ghanshyam, [1962] Supp. 3 S.C.R. 36; and R. Johnson & Co. (Builders)  Ltd.  v. Minister of Health, [1947] 2  All  E.R. 395, referred to.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 258 of 1966. Petition under Art. 32 of the Constitution of India for  the enforcement of the Fundamental Rights. The petitioner appeared in person. R.   H.  Dhebar, R. N. Sachthey, and S. S. Javali,  for  the respondent. The Judgment of the Court was delivered by Shelat,  J.  The petitioner was arrested by an  order  dated December  10,  1965 under Rule 30(1) (b) of the  Defence  of India  Rules, 1962 and was detained in Central Jail,  Tehar, New  Delhi.   On  the 24th December,  1965,  he  filed  writ petition  No.  47  of 1966 in  this  Court  challenging  his detention, inter alia, on the grounds that ( 1 ) Rule 30 ( 1 )  (b) was ultra vires s. 3 (2) (15) (i) of the  Defence  of India  Act, (2) that rule 23 of the Defence of India  (Delhi Detenues)   Rules,  1964  gave  him  a  right  to   make   a representation  by  providing review of the  said  detention order and that his said right was disregarded by his  having been prevented from making such representation, (3) that the said  order was in breach of s. 44 of the Act, and (4)  that it  was made in mala fide exercise of power.  That  petition was  dismissed  on  April  19,  1966.   The  petitioner  was thereafter  served with an order dated June 11, 1966  passed by  the  Central Government under Rule 30A(9)  of  the  said Rules.   The said order, inter alia, stated that  "the  said

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detention order has been reviewed by the Central Government- and  upon such review the Central Government hereby  decides that  Shri  P. L. Lakhanpal-should continue to  be  detained with a view to preventing him from acting in any manner pre- judicial  to the Defence of India and Civil  Defence".   The petitioner  filed Writ Petition No. 137 of 1966  challenging the validity of the said original order of detention and the order  dated  June  11,  1966.   Rule  30A(9)  provides   as follows:-               "Every  detention  order made by  the  Central               Government  or the State Government  shall  be               reviewed at               116               intervals  of not more than six months by  the               Government  who made the order and  upon  such               review  that Government shall  decide  whether               the order should be continued or cancelled". That   petition  also  was  dismissed  by  judgement   dated September   21,  1966.   It  appears  that  the   petitioner thereafter    addressed    certain    letters    and    sent representations to the Home Ministry stating therein that he was  now  clearly  of  the  opinion  that  the  demand   for plebiscite in Kashmir by Pakistan had become untenable as  a result  of  certain  events having  taken  place,  that  the Tashkent declaration had altered relations between  Pakistan and  India that the said declaration and other events  which had since taken place had completely changed the  complexion of  Pakistan’s stand on Kashmir and that he was also now  of the  opinion that the application of some of the  provisions of the Indian Constitution to Kashmir was correct.  He  also represented  that there were more pressing problems  in  the country requiring his attention than the question of Kashmir and  the  relations  between  the  two  countries  on   that question.   By  an order dated the 2nd December,  1966,  the Government  of India directed the further detention  of  the petitioner  stating therein that "the said  detention  order has been further reviewed by the Central Government and upon such  review the Central Government hereby decides that  the order  for  the detention of the said Shri P.  L.  Lakhanpal should  be continued".  The present petition challenges  the validity of this order.               The petitioner contended               (i)   that the said order is a mechanical  and               casual   order  passed  without  taking   into               consideration all the facts and  circumstances               relevant under Rule 30(1) (b) and Rule 30A(9).               (ii)  That it is passed in utter disregard  of               the duty of the Government to act  judicially,               implicit  in the power conferred on  it  under               Rule  30A(9) to continue detention,  both  the               function  to review and the  decision  thereon               being judicial or quasi-judicial.               (iii) That the said order is ultra vires S. 44               of  the  Act  where under  the  Government  is               required  to decide whether detention  is  the               minimum  action  necessary on  the  facts  and               circumstances of the case.               (iv)  That  the  said order is mala  fide  and               illegal   being   contrary   to   the   policy               ’statements  made on behalf of the  Government               in  Parliament from time to time  to  restrict               the operation of the Act and the Rules :               117               (a) for purposes of defence only, and               (b)   in border States; and

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             (v)   That  the said order is mala fide as  it               is   motivated   by   punitive   rather   than               preventive considerations. In reply to these contentions the counter-affidavit filed by the Deputy Secretary in the Ministry of Home Affairs  states that  between  the  10th of December, 1965 and  the  2nd  of December,  1966,  the petitioner  had  made  representations either directly or through certain persons and had addressed letters explaining his position, that on the basis of  those representations  and letters and the report about  his  past activities called for from the police and after  considering those  materials the Central Government felt satisfied  that it  the  petitioner were to be released, he  was  likely  to resume  his  prejudicial  activities  and,  therefore,   his detention  should  be  continued.   The  affidavit   further alleged  that  at  the time of the review  of  his  case  on December 2, 1.966 "the said letters, papers, representations and  the  report  from the police  were  placed  before  the Minister  who had considered the same and he  was  satisfied that  it  was  necessary to continue the  detention  of  the petitioner".   It also stated that it was not  possible  to- disclose  to the detenu the material on the basis  of  which the Central Government came to the said conclusion, that the order  of  detention  was to  prevent  the  petitioner  from indulging  in  prejudicial  activities  mentioned  in   Rule 30(1)(b) and that the apprehension of   his   indulging   in such activities would have to be judged and was judged  from representations  made  by him.  It is thus  clear  from  the counter-affidavit  that the detaining  authority  considered (1) the representations and letters made and written by  the petitioner,  (2)  the report of the  police  authorities  in regard to the past activities of the petitioner (there being no  question  of any present activities as he  was  in  jail since  the 2nd of December, 1965) and (3) the  events  which had  since  his  detention taken place.   According  to  the Central   Government,   it  came  to   the   decision   that continuation  of  his  detention was  necessary  as  it  was satisfied  that if he were to be released he would  continue the -same anti-national activities for which he was detained and that his professions that there was a change in his view was only a ruse to get himself released from detention. Now, there is no doubt that under the Act as also under  the said  Rules  the Government is the special  forum  on  whose subjective  satisfaction  an  order  of  detention  for  the considerations set out in Rule 30 (1) (b) can be made and on whose decision arrived ,it on the considerations and in  the manner  -prescribed  by Rule 30A(9) such  detention  can  be continued.  However, as held in P. L.    Lakhanpal  v.   The Union of India and Anr., (1) there is a (1) [1967] 1 S.C.R.433. 118 difference in the power to detain and the power to  continue such detention beyond a period of six months in that whereas the  former depends upon the subjective satisfaction of  the detaining  authority, the latter has in express  terms  been made  dependent on the existence of facts and  circumstances necessitating  such  continuance.  This Court held  in  that petition :               "It  follows that where the exercise of  power               is  not  conditioned  on  a  mere  opinion  or               satisfaction but on the existence of a set  of               facts  or  circumstances  that  power  can  be               exercised where they exist.  The authority  in               such a case is required to exercise the  power               in the manner and within the limits authorised

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             by  the Legislature.  The existence,  of  such               facts   which  is  the  determinant  for   the               exercise of the power is demonstrable".               The Court further observed :-               "Unlike  Rule 30(1) (b) the power to  continue               the detention after review is not dependent on               the satisfaction of the Government.  Rule  30A               postulates  that ordinarily  detention  should               not  be for more than six months unless  found               necessary.   It is for that reason that  under               the  Rules  when  the  period  of  six  months               expires  the  Government is enjoined  upon  to               decide  whether  it  should  be  continued  or               cancelled.   Though the legislature  has  made               the Government the exclusive forum for such  a               decision,  its decision has to be  founded  on               facts   and  circumstances  which   make   the               continuation necessary in order to prevent the               detenu  acting in a manner prejudicial to  the               matters set out therein.  The substitution  of               decision  instead of satisfaction is  a  clear               indication  that the criterion for  continuing               the detention is the existence of those  facts               and circumstances which necessitate it.  It is               not unreasonable to think that the legislature               decided to confer power the exercise of  which               was   made  dependent  upon   the   subjective               satisfaction  at the initial stage  but  where               continuation  of detention was  concerned,  it               thought  that there should be  different  con-               siderations.   At  that stage there  would  be               ample time and opportunity for the  Government               to  scrutinise the ,case fully  and  ascertain               whether   facts   and   circumstances    exist               demanding    continuation    and     therefore               deliberately used the word ’decide’ instead of               the  words ’is satisfied’.   Therefore,  where               such circumstances do not exist there would be               no  necessity for continuation and yet if  the               Government decides to continue the  detention,               such  a decision would be beyond the scope  of               Rule  30A and would not be a  decision  within               the meaning of or under               119               that    Rule.    Cases   may    arise    where               circumstances exist leading to the authority’s               satisfaction  that a particular person  should               be  detained but those circumstances  may  not               exist at the time when the review is made.  In               the  latter case it is impossible to say  that               the  Government can still decide  to  continue               the  detention nor is it possible to say  that               it is the Government’s opinion or satisfaction               that such facts and circumstances exist  which               is  the criterion.  The decision on  a  review               has  to  be  arrived at  from  the  facts  and               circumstances which actually subsisted at  the               time  when the original order was made in  the               light  of  subsequent  developments  and   not               merely  those  existing at the time  when  the               order  was made.  In such a case the  decision               can be challenged as one not within the  scope               of  or  under  the  Rule  and  therefore   un-               authorised  or as one based on  considerations               irrelevant to the power".

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The  position  resulting  from this  decision  is  that  the decision  to  continue detention has to be  arrived  at  not subjectively  but  on  an  objective  standard,  i.e.  on  a decision  on materials relevant to the purposes  under  Rule 30(1)  (b) and Rule 30A(9) gathered by or placed before  the detaining  authority  which, according  to  that  authority, necessitates  continuation.   Though  it  is  the  detaining authority  which has to decide and its order is not  subject to  appeal  or revision by a court of law such an  order  is liable   to  a  challenge  where  either  such   facts   and circumstances do not exist or where it is made on the  basis of facts or circumstances not relevant or extraneous to  the said purposes. On  the contentions raised by the petitioner,  the  question that  falls  for  determination  is  whether  the   function entrusted by Rule 30A(9) to the Government and its  decision thereunder  are judicial or quasi-judicial.   This  question was left open in the earlier judgment in P. L. Lakhanpal  v. The Union of India and Another(1) as the petitioner had then not raised it. As to what is a quasi-judicial as against an  administrative or ministerial function, it is no longer necessary to go  in any  detailed  search  for  the  principles  governing   the distinction between the two.  Lord Loreburn, L. C. in  Board of  Education  v. Rice (2 )  stated,  "Comparatively  recent statutes  have  extended, if they have not  originated,  the practice  of imposing upon departments or officers of  State the duty of deciding or determining the questions of various kinds.   In  the present instance, as in many  others,  what comes for determination is sometimes a matter to be  settled by  discretion,  involving  no law.   It  will,  I  suppose, usually be of an administrative kind; but sometimes it  will involve a matter of law (1) [1966] Supp S.C.R. 209.     (2) [1911] A.C. 182. 120 as well as a matter of fact, or even depend upon a matter of law  alone.  In such cases the Board of Education will  have to ascertain the law and also to ascertain the facts.  I  do not add that in doing either they must act in good faith and fairly  listen to both sides, for that is a duty lying  upon every  one  who decides anything.  But I do not  think  that they are bound to treat such a question as though it were  a trial .... They can obtain information in any way they think best,  always  giving a fair opportunity to  those  who  are parties  in the controversy for correcting or  contradicting any relevant statement prejudicial to their view".   Similar sentiments  were  also expressed by Lord  Haldane  in  Local Government  Board v. Arlidge(1).  The Lord Chancellor  there stated,  "When  the duty of deciding an appeal  is  imposed, those  whose  duty it is to decide it must  act  judicially. They  must deal with the question referred to  them  without bias,  and  they  must  give to  each  of  the  parties  the opportunity  of  adequately presenting the case  made.   The decision must be come to in the spirit and with the sense of responsibility  of a tribunal whose duty it is to  mete  out justice".   The principles distinguishing  a  quasi-judicial function  from one which is ministerial were more  precisely set  out  by  Das, J. (as he then was) in  the  Province  of Bombay v. Kusaldas S. Advani(2).  He observed (1) where is a lis, there is prima facie in the absence of anything in  the statute  to  the contrary the duty of the authority  to  act judicially  and  the decision of the authority is  a  quasi- judicial act; and (2) even if there is no lis  inter-parties and  the contest between the party proposing to do  the  act and the subject opposing it, the final determination of  the

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authority  will  yet be a quasi-judicial  act  provided  the authority is required by the statute to act judicially.  "In other  words, while the presence of two parties besides  the deciding  authority will prima facie and in the  absence  of any  other factor impose upon the authority the duty to  act judicially, the absence of two such parties is not  decisive in  taking the act of the authority out of the  category  of quasi-judicial act if the authority is nevertheless required by  the statute to act judicially".  These  principles  have since been acted upon by this Court in subsequent  decisions such  as  Nagendra Nath Bora, v. The Commissioner  of  Hills Division  (  3)  Radheshyam Khare v.  The  State  of  Madhya Pradesh  (4),  Gullapalli Nageswara Rao  v.  Andhra  Pradesh State  Road Transport CorPoration(5) and Shivji Nathubhi  v. The  Union  of  India  (6).  In Board  of  High  School  and Intermediate  Education, U.P. v. Ghanshvam (7) the  question again  was  whether the power entrusted to  the  Examination Committee under s. 15 of U.P. (1) [1915] A.C.120 at p.132.  (2) [1950] S.C.R. 621, 725. (3) (1958] S.C.R. 1240.       (4) [1959] S.C.R. 1440. (5) [1959] Supp. 1 S.C.R. 319.(6) (1960] 2 S.C.R. 775. (7) [1962] Supp. 3 S.C.R. 36. 121 Intermediate  Education Act, 1921 and Chapter VI, r. (1)  of the Regulations made thereunder was a quasi-judicial  power. Wanchoo,  J.,  who spoke for the court said at  page  43  as follows :-               "Now  it may be mentioned that the statute  is               not  likely to provide in so many  words  that               the authority passing the order is required to               act judicially; that can only be inferred from               the  express provisions of the statute in  the               first  instance  in  each  case  and  no   one               circumstance  alone will be  determinative  of               the  question whether the authority set up  by               the statute has the duty to act judicially  or               not.   The  inference  whether  the  authority               acting under a statute where it is silent  has               the duty to act judicially will depend on  the               express  provisions of the statute read  along               with  the nature of the rights  affected,  the               manner of the disposal provided, the objective               criterion if any to be adopted, the effect  of               the decision on the person affected and  other               indicate afforded by the statute". The Court there held that it was obvious that the  Committee when it proceeded to decide matters covered by r. 1(1)  will have to depend upon materials placed before it and before it decided to award any penalty it had to come to an  objective determination on certain facts and this was the only  manner in which it could carry out the duties imposed on it.   Even though  there  was no lis in the present case in  the  sense that  there  were not two contending parties before  it  the Committee  should  hear  the examine whose  lives  might  be seriously  affected by its decision even subjecting them  in some   cases   to  criminal  prosecution   on   charges   of impersonation, fraud and perjury.  Though, therefore,  there was  nothing  express  one way or other in the  act  or  the Regulation   casting  a  duty  on  the  Committee   to   act judicially,  the  manner  of the disposal  and  the  serious effects  of the decision of the Committee would lead to  the conclusion  that  a duty to act judicially was cast  on  the Committee and the Committee when it acted under r. 1(1)  was acting  quasi-judicially  and  the  principles  of   natural justice would apply to its proceedings.

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Let us now proceed to consider the nature of the function of review  and  the  decision  thereon  in  the  light  of  the principles  laid down in these decisions.  There can  hardly be  any doubt that in a case of the kind we have  before  us there must always occur a dilemma or a conflict between  the claims on the one hand of personal liberty of an  individual and these of national interests on the other.  Nevertheless, it  must be remembered that in such cases, the  only  remedy that a person detained has lies in the procedural safeguards that  the  legislature deliberately lays down.   Where  such procedural safeguards have been fully and properly  complied with, the Court would have no power or would in any L4SupCI/67-9 122 event  be reluctant, even if it has, to interfere.  That  is because  of  the consideration that  national  interest  and security  should have a prior claim than even  the  personal liberty  of an individual who has acted or is likely to  act in  a manner prejudicial to them.  In such  cases,  however, utmost  care  has  to  be taken  to  comply  with  such  few safeguards  which  the law justifying the  loss  of  liberty provides.  That the impugned decision involves the right  of personal  liberty,  a  more cherished right  than  that  one cannot  conceive in our democratic State is obvious.  It  is equally  obvious  that the manner in which the  question  of continuation  of detention enjoined upon by Rule 30A(9)  has to  be determined is by applying the objective  standard  as against  the  subjective  opinion  or  the  belief  of   the detaining authority i.e. by weighing evidence brought before or  collected  by such authority relevant  to  the  purposes under  Rule 30(1) (b) and Rule 30A(9) and then coming  to  a decision  whether the order of detention needs  continuation or  not.   How can such an authority come  to  its  decision honestly  and  properly  unless  it  is  certain  that   the materials  before it are true and dependable.  How  is  that certainty to be derived unless the person concerned is given an opportunity to correct or contradict such evidence either by explanation or through other materials which he can place before the authority.  Keeping in mind the five factors laid down   in  the  case  of  The  Board  of  High  School   and Intermediate Education U.P. (1), the conclusion that we must come  to  is that the function entrusted  to  the  authority under Rule 30A(9) as distinguished from the power under Rule 30(1) (b) is quasi-judicial and the- -decision which it  has to arrive at cannot be anything other than. a quasi-judicial decision. Mr.  Dhebar, however, relied on the judgment of Shah, J.  in Sadhu Singh v. Delhi Administration ( 2 ) and especially the observations  therein  that "if the order  of  detention  is purely  executive  and not open to review by  the  court,  a review  of those very pircumstances on which the  order  was made  in  the light of circumstances since the date  of  the order  cannot but be regarded as an executive  order".   The question is: Does it follow that because the first order  is purely  executive, the subsequent order is necessarily  also executive?  While making the subsequent order, the authority is  called  upon  to decide  whether  further  detention  is necessary  for  the  purposes set out in  the  Rules.   That decision has to be arrived at, firstly, on the assessment of the  evidence  placed before the authority and  not  on  its subjective  satisfaction and secondly, in the light  of  the facts  which existed at the date of the original  order  and the facts and circumstances which have occurred or developed since then.  It is well-recognised that a function or  power which in its inception is purely ministerial may some-

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(1) [1962] Supp. 3 S.C.R. 36. (2) [1966] 1 S.C.R. 243. 123 times become quasi-judicial at a latter or some intermediate stage  during the course of its exercise.  At the  stage  at which  it attains the nature of a  quasi-judicial  function, the  authority  entrusted with that function has  to  comply with the rules of natural justice and give an opportunity to the   party   concerned  of  representing  his   case.    An illustration  can  be found in R. Johnson &  Co.  (Builders) Ltd. v. Minister of Health(1), where Lord Greene, M.R. at p. 401 of the Report points out that the function entrusted  to the  Minister there was of such a composite  character.   It started  as  an administrative function but  at  the  second stage  it  was quasi-judicial where he had to  consider  the objections of parties, that is, the objectors and the  local authority and then ended as an administrative function  when the  Minister decided whether to confirm or not  to  confirm the  report  of the local authority.  Regarding  the  second stage, he characterised that as a quasi-lis and the  parties i.e. objectors and the local authority as quasi-parties  and said that while that stage was pending statements made by or obtained  through either of the quasi-parties would have  to be disclosed to the other quasi-party. To say therefore that because a function is in its inception executive  in character, it retains the executive  character throughout  would not, with respect, be  correct.   Besides, the function under Rule 30(1)(b) and that under Rule  30A(9) is not one and the same.  The former is completed as soon as an order of detention is made; the latter is independent  of the  former and is to be exercised after detention has  -one on  for  a period of six months.  In our view,  whereas  the function  under Rule 30(1) (b) is executive, the  one  under Rule 30A(9) is quasi-judicial and therefore in exercising it the rules of natural justice have to be complied with. It  is  admitted  that  the petitioner  was  not  given  any opportunity  of  representing  his case  or  to  correct  or contradict the evidence on which the Government was going to rely on and which it admittedly relied on.  But Mr. Dhebar’s contention  was  that if the power of  decision  under  Rule 30A(9) were held to be quasi judicial in character a  person detained would be entitled to disclosure of the materials in possession  of the Government and on the basis of which  the order would be made, that such disclosure would not only  be prejudicial  to the very purposes of the Act and  the  Rules but  also to national interest and, therefore, the  legisla- ture could not have intended such disclosure.  The answer to ’his Contention is simple.  In some cases, though such cases would be few, such disclosure would perhaps be  embarrassing and, we will assume, detrimental to the larger interests  of the   country.   But  the  proper  remedy  against  such   a consequence is not to deny (1)  [1947] 2 All R.395. 124 the  elemental right of representing his case to the  person whose  liberty  is being deprived but by  providing  a  rule where  under  the  authority in  suitable  cases  can  claim privilege  against such disclosure.  Such a provision is  in fact  provided for under Art. 22 of the  Constitution  under the Prevention of Detention Act. where does not appear to be any reason why such a rule cannot be made under the  Defence of India Act or the Rules made thereunder. It  may  be  that in the present  case  the  Government  had materials  before  it which might justify  the  petitioner’s detention.   We  do not know whether it had or not  for  the

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only  thing that was said in the counter-affidavit was  that there  were  materials  on the consideration  of  which  the Minister  based  his decision.  If that be  so,  the  proper thing  to  do  was to give a chance  to  the  petitioner  to explain  them.  This not having been done the order of  con- tinuation  of detention was illegal, it being in  breach  of the principles of natural justice and has, therefore, to  be quashed. In  this view, it is not necessary to deal with the rest  of the  contentions raised by the petitioner.  The petition  is allowed.   The order dated December 2, 1966 is  quashed  and the petitioner is directed to be set free forthwith. R. K. P. S.                     Petition allowed 125 125