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PETITIONER: P.   L. LAKHANPAL

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 19/04/1966

BENCH: SARKAR, A.K. (CJ) BENCH: SARKAR, A.K. (CJ) HIDAYATULLAH, M. BACHAWAT, R.S. SHELAT, J.M. DAYAL, RAGHUBAR

CITATION:  1967 AIR  243            1966 SCR  209  CITATOR INFO :  F          1967 SC 908  (1,5)  OPN        1967 SC1507  (5)  RF         1980 SC1789  (107)

ACT: Defence of India Rules, 1962 r. 30(1) (b)-If ultra vires  s. 3(2)(15) (i) of Defence of India Act-Constitution of  India, Art.   352-Proclamation-If   to   state,   satisfaction   of Emergency.

HEADNOTE: The  petitioner,  the editor of a  newspaper,  was  detained under  r. 30(1)(b) of the Defence of India Rules, 1962.   He filed  a  petition under Art. 32 of the Constitution  for  a writ  of  habeas  corpus challenging  the  legality  of  the detention   order  on  various  grounds.    Dismissing   the petition, HELD:Rule 30 (1) (b) cannot be said to be ultra vires of  s. 3 (2) (15)(i)  of  the Defence of India Act for  the  reason that  it  does  not  state  that  the  satisfaction  of  the authority making the order of detention has to be on grounds appearing  to it to be reasonable.  The rule  requires  only that  the  detaining authority must be  satisfied  that  the detention  is necessary for the purposes mentioned and  that is  what the latter part of the section under which  it  was made also says.  This part does not contain any  requirement as  to  satisfaction on reasonable grounds.   The  rule  has clearly  been made in terms of the section  authorising  it. [211 F] Article  352  of  the  Constitution  does  not  require  the proclamation  to  state the satisfaction  of  the  President about   the   Emergency.   The  Article  requires   only   a declaration  of emergency threatening the security of  India by one of the causes mentioned.  The words "to that  effect" can  have no other meaning.  A proclamation ceases  to  have effect only by one of the events mentioned in cl. 2 of  Art. 352 of the Constitution.[212 C] Section 3(2)(15)(iv) of the Defence of India Act and r. 30-A of the Defence of India Rules, does not give a right to make

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a  representation.  Their effect is to provide a  review  of the  detention  order by the authorities and in  the  manner mentioned.  Rule 23 of the Defence of India (Delhi  Detenus) Rules,  1964,  states  that a detente  will  be  allowed  to interview  a legal practitioner for the Purpose of  drafting his representation against his detention. [213 C-D]. The fact that newspapers and men connected with them may  be dealt with under other provisions of the Art and Rules  does not  prevent detention of such persons under r. 30(1)(b)  of the Defence of India Rules. [213 H] The order need not mention the part of India which was to be Prejudicially affected by the acts of the detenue.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 47 of 1966. Petition.under Art. 32 of the Constitution of India for  the enforcemont of fundamental rights. The petitioner appeared in person. 210 Niren De, Additional Solicitor-General, N. S. Bindra, R.  H. Dhebar and B.R.G.K. Achar, for the respondent. R. V. S. Matti, for the intervener. The Judgment of the Court was delivered by Sarkar,  CJ.   The  petitioner,  Puran  Lal  Lakhanpal,  was arrested  and detained under cl. (b) of sub-r. (1)  of  Rule 301  of the Defence of India Rules. 1962 by an order  passed on December 10, 1965 and directed to be detained in  Central Jail, Tehar, New Delhi.  The order stated that:               "WHEREAS  the Central Government is  satisfied               that  with  a  view to  preventing  Shri  P.L.               Lakhanpal.  son  of  late  Shri  Diwan   Chand               Sharma........from   acting   in   a    manner               prejudicial to the Defence of India and  Civil               Defence, public safety and the maintenance  of               public  order, it is necessary that he  should               be detained; NOW,  THEREFORE..............the Central  Government  hereby directs that the said Shri P. L. Lakhanpal be detained." He has moved this Court under Art. 32 of the Constitution by a  petition  presented on December 24, 1965 for  a  writ  of habeas  corpus  directing his release.   He  challenges  the legality of the detention order on various grounds which  we now proceed to consider. The  first  ground  is that r. 30(1)(b) is  ultra  vires  s. 3(2)(15)(1) of the  Defence  of  India Act under  which  the Rules were made.  Sub-s.(1)   of  s. 3 contains the  general power  to make rules for certain purposes.  Sub-section  (2) states that the rules made may provide for and many  empower any authority to make orders providing for all or any of the following matters, namely:               "(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.........suspects,     on     grounds               appearing    to   that   authority    to    be               reasonable .................... 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........or with respect  to  whom

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             that   authority   is   satisfied   that   his               apprehension  and detention are necessary  for               the  purpose of preventing him from acting  in               any such prejudicial manner."               211               Rule 30(1)(b) is in these terms:               "The  Central 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............... may make an order-               (b) directing that  he be detained." It  will  be  noticed that the rule does not  say  that  the satisfaction  mentioned in it shall be on grounds  appearing to  the  authority concerned to be reasonable.  It  is  said that  by omitting these words the rule has gone outside  the section which mentions them, and is, therefore, ultra vires. This  contention is untenable.  It overlooks the  fact  that the  latter part of the section states that the  rules  made under it may also provide for the apprehension and detention of  a  person  "with  respect  to  whom  that  authority  is satisfied that his apprehension and detention are necessary" for  certain  purposes;  this  part  does  not  contain  any requirement as to satisfaction on reasonable grounds.   This part of the section is independent of the earlier part under which  the apprehension and detention can be  directed  only when the authority suspects on certain grounds appearing  to it  to  be  reasonable that a person is about to  act  in  a certain  manner.   It is of some significance to  point  out that the second part of the section is preceded by the  word ’or’.   That puts it beyond doubt that the rules made  under it  may provide for detention in two alternative cases,  for the  first of which only it is necessary that the  authority should  entertain a suspicion on grounds appearing to it  to be reasonable.  That requirement is absent in the case of  a rule  made  under  the second part  of  the  section.   Rule 30(1)(b)  cannot be said to be ultra vires the  section  for the  reason that it does not state that the satisfaction  of the  authority  making the order of detention has to  be  on grounds appearing to it to be reasonable.  The rule requires only that the detaining authority must be satisfied that the detention  is necessary for the purposes mentioned and  that is  what the latter part of the section under which  it  was made also says.  The rule has clearly been made in terms  of the section authorising it. It was next said that the Proclamation of Emergency made  by the  President  under  Art. 352 of  the  Constitution  which prevented  the Act from being illegal, was not in  terms  of the  article  as  it did not state that  the  President  was satisfied  that a grave emergency existed.  It is true  that the Proclamation did not do that.  It stated:               "  In  exercise  of the  powers  conferred  by               clause (1) of article 352 of the Constitution,               I   Sarvapalli  Radhakrishnan,  President   of               India,  by  this Proclamation declare  that  a               grave emergency exists whereby the security of               India is threatened by external aggression."               212 We, however, find nothing in the Article which requires  the Proclamation  to  state the satisfaction  of  the  President about the emergency.  Article 352(1) reads,               "If  the President is satisfied that  a  grave               emergency exists whereby the security of India

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             or  of  any part of the territory  thereof  is               threatened,   whether  by  war   or   external               aggression or internal disturbance, he may, by               Proclamation,  make  a  declaration  to   that               effect." The  Article  requires  only  a  declaration  of   emergency threatening  the  security  of India by one  of  the  causes mentioned.   The  words "to that effect" can have  no  other meaning.  The power to make the declaration can no doubt  be exercised  only  when the President is satisfied  about  the emergency,  but we do not see that the Article requires  the condition precedent for the exercise of the power, that  is, the   President’s   satisfaction,  to  be  stated   in   the declaration.  The declaration shows that the President  must have satisfied himself about the existence of the  emergency for  in  these  matters  the rule  that  official  acts  are presumed  to have been properly performed applies and  there is  nothing  proved  by  the  petitioner  to  displace  that presumption.  We were referred to certain other  provisions, viz., Art. 311(2)(c) of the Constitution and r. 30(1)(b)  of the Rules and it was contended that these provisions require the satisfaction to be stated.  It is unnecessary to  decide whether they so require.  Even if they did, the  requirement of  the  statement of the President’s  satisfaction  in  the present  case  has to be decided on the terms  of  Art.  352 alone.  We have said that this Article does not contain  any such requirement.  It is of interest to point out here  that the  petitioner stated in his petition that he extended  his full  support  to  the Government  on  the  Proclamation  of Emergency.   Obviously he could not have done so if  he  had any  doubt about the legality of the Proclamation.  Then  it was  said  that  the Proclamation  should  have  stated  the direction  from  which  the  external  aggression  which  it mentioned  was apprehended.  We find nothing in the  Article to require the Proclamation to state this.  The Proclamation was  issued  on  October 26, 1962 when, it  is  well  known, India’s integrity was threatened by China. It  was also stated that the continuance of Emergency  which was  declared  over  three  years ago  is  a  fraud  on  the Constitution.   We  were  told that  the  President  in  his address  to  the Parliament in February this  year  did  not state   that   the  Emergency  continued  to   exist.    The President’s  address  has not been produced, and we  do  not know  what  it  contained.  However that may  be,  Art.  352 itself by cl. (2) provides that a Proclamation issued  under cl.  (1)  may be revoked by a  subsequent  Proclamation  and shall  cease  to  operate at the expiration  of  two  months unless  before  the expiration of that period  it  has  been approved by resolutions of both Houses of Parliament.   This clause  also  states  that the Proclamation  shall  be  laid before each House of Parliament.  It has not 213 been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months.  It  would appear,  therefore, that the only way a Proclamation  ceases to  have  effect is by one of the events mentioned  in  this clause.  None of them has happened.  Nothing contained in an address  by  the President to the Houses of  Parliament  can operate  to terminate the Proclamation.  In this  connection it  was  also said that ’external  aggression’  means  armed aggression  and  as for some time past there was  no  armed, aggression  against the territory of India, the  continuance of  the Proclamation was unjustified.  This contention  must also fail, on the ground which we have just mentioned. Another challenge to the legality of the detention was  that

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the   petitioner   had  not  been  allowed   to   make   any representation  against  his detention.  Our  attention  was drawn in this connection to s. 3(2) (15)(iv) of the Act  and r.  30-A of the Rules and also to r. 23, of the  Defence  of India (Delhi Detenues) Rules, 1964.  The two first mentioned provisions  do not, in our opinion, give a right to  make  a representation.  Their effect is to provide a review of  the detention  order  by  the  authorities  and  in  the  manner mentioned.   The  last  one states that a  detenue  will  be allowed to interview a legal practitioner for the purpose of drafting  his representation against his detention.  It  has not been stated in the petition that the petitioner was pre- vented   from  making  any  representation  or  denied   the opportunity  to  consult a legal practitioner.  All  hat  is said  is that he had not been furnished particulars  of  his writing  s  and materials on which the satisfaction  of  the Central Government mentioned in the order was based and that had  prevented  him  from making  a  representation  to  the Government against his detention.  This contention seems  to us unwarranted.  There is nothing to show that the detention order  had been based on petitioner’s writings, nor has  our attention  been  drawn to any provision which  requires  the detaining  authority to supply the materials on  which  they had  formed  their satisfaction about the necessity  of  the detention. Then it was said that the order of detention violated s.  44 of the Act and s. 3(2)(4)(b), (6), (7)(a)(b)(c) and (d)  and rr.  41, 42, 44, 45 and 46 of the Rules.  The  substance  of the contention is that the petitioner was the editor of  and ran  a newspaper and that action against him could  only  be taken under the sections and rules earlier mentioned and not under  r.  30(1)(b).   This contention seems  to  us  to  be entirely  groundless.  The provisions referred to  no  doubt deal with newspapers and the manner of controlling them  but they  in  no  way lead to the conclusion  that  a  newspaper editor may not, if the occasion arises, be detained under r. 30(1)(b).   The fact that newspapers and men connected  with them may be dealt with in a certain manner does not  prevent detention  of such persons under r. 30(1)(b).  It  was  also said that r. 30(1)(b) requires that the part of India  which is  to be prejudicially affected by the acts of the  detenue has  to  be  mentioned  in  the  order.   This  is  an  idle contention.  The 214 rule  no  doubt says that the detention may  be  ordered  to prevent a person from acting in a manner prejudicial to  the maintenance of peaceful conditions in any part of India, but it  also  says  that  the  detention  can  be  ordered   for preventing  a person from acting in a manner prejudicial  to the  defence of India, civil defence and public  safety  and maintenance of public order with regard to which there is no requirement  provided  that they should be confined  to  any part of India or that part should be mentioned in the  order of  detention.   The order in this case was  made  on  these grounds.  The petition furnishes no material for saying that the terms of s. 44 have been violated.  There is nothing  to show  that  the detention interfered with  the  petitioner’s avocation in life in a manner not justified by that section. The last ground taken was that the detention order was  mala fide because the Home Minister had not sworn an affidavit to say  that  he  was satisfied about  the  necessity  for  the detention.  There is a bald allegation in the petition  that the  detaining  authority had not applied its  mind  to  the matter  before making the order of detention.  This part  of the  petition  was  verified as  true  to  the  petitioner’s

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knowledge.    This  verification  was  plainly  false   and, therefore,  the  allegation  in  the  petition  required  no answer.   However,  that may be, a Deputy Secretary  to  the Home  Ministry  of  the Government of  India  has  sworn  an affidavit  stating  as  true  to  his  knowledge  that   the materials   in  connection  with  the  activities   of   the petitioner  were placed before the Union Home Minister  and, on  a  consideration of those materials,  the  Minister  was satisfied that the detention order was necessary. The result is that this petition fails and it is accordingly dismissed. Petition dismissed. 215