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PETITIONER: P.L. LAKHANPAL

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT: 21/09/1966

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAO, K. SUBBA (CJ) HIDAYATULLAH, M. SIKRI, S.M. MITTER, G.K.

CITATION:  1967 AIR  908            1967 SCR  (1) 434  CITATOR INFO :  C          1967 SC1507  (3)  RF         1973 SC1425  (18)  D          1988 SC1459  (15)  R          1990 SC 176  (32)

ACT: Defence  of India Rules 1962, rr. 30(1)(b) and  3OA(9)-Scope of.

HEADNOTE: The  petitioner  who  was  the editor  of  a  newspaper  was detained  by  and order of the Central Government  under  r. 30(1)(b)  of  the  Defence of India  Rules,  1962,  and  the detention  was  continued by another order  of  the  Central Government  passed six months later, under r.  3OA(9).   The first order directed the petitioner’s detention with a  view to  preventing him from acting in any manner prejudicial  to the  defence of India, civil defence, public safety and  the maintenance-of  public order, but the order  continuing  the detention  set  out  only the defence  of  India  and  civil defence. The   petitioner challenged the second order of the following  grounds:-(i)the  detention was punitive  and  not preventive, because his writings in is  paper    were    the grounds  of  his original detention but that the  paper  had since become defunct; (ii) the two additional grounds  given in  the original order and omitted in the latter order  must be  held  to  have  been non-existent at  the  time  of  the original  order, and therefore, the original order based  on such  non-existent  grounds was illegal, and  could  not  be validly  continued  under  r.  3OA(9);  (iii)  even  if  the Government  was  competent to continue  the  detention,  the validity  of the decision of the Government to continue  the detention   depended   upon  the   existence   of   relevant circumstances which would necessitate the- continuation  and such circumstances were demonstrable; and (iv) the  Minister who  passed  the second order should have  filed  a  counter affidavit  showing that he applied his mind to the  material before he passed the order continuing the detention. HELD  :  (i) Assuming that the petitioners writings  in  his

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paper were relied on for the purpose of passing the original order,  they  were  not  the only  materials  on  which  the original  order and the order continuing the detention  were based.   The  authorities had taken into  consideration  the over-all  picture of all his anti-Indian  and  pro-Pakistani activities.   Therefore, the fact that his paper  had  since become   defunct  would  make  no  difference  because   the jurisdiction  to  detain  is not in respect  of  a  mischief already  committed  but  in anticipation.  that  the  person concerned may in future act prejudicially. [436 H; 437  A-B; 439 C-D] (ii) The decision to continue the detention order was within the scope of r. 30A and was therefore sustainable. [446 A-B] Rule  30-A provides for a review of the order of  detention, the    procedure   therefor,,   the   different    reviewing authorities,  the period within which such review has to  be made  and  the obligation to decide  whether  the  detention should  be continued or cancelled after taking into  account all  the circumstances of the case.  Sub-rule  (9)  provides that where a detention order is passed, by the Central or  a State  Government such order shall be reviewed at  intervals of  not  more than six months by the Government  which  made the-order and upon such review decide whether to continue or cancel  the  order.  The object of the review is  to  decide whether there is a necessity to continue the detention order or not in 434 the  fight  of  the facts and  circumstances  including  any development  that has taken place in the meantime.   If  the reviewing authority finds that such a development has  taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do not subsist that is not to say that those reasons did not exist at the time of passing the original order and that the satisfaction was on grounds which did not then exist.  There is  no  analogy  between the provisions  of  review  in  the Defence of India Rules and in the Preventive Detention  Act, 1950  and  therefore, the decisions on that  Act  cannot  be availed of by the petitioner. [438 H; 439 B; 445 F-H; 446 A- B] (iii)  The  words  used  in r. 30(1)  (b)  and  r.  30A  are satisfaction  in  one case, and decision after  taking  into account  all  the circumstances of the case  in  the  other. Unlike  r.  30(1)(b), the power to  continue  the  detention after  review  is  not  dependent on  the  solution  of  the Government.  Under r. 30A the Government is enjoined upon to decide   whether  the  detention  should  be  continued   or cancelled.    The  substitution  of  decision   instead   of satisfaction  is  an  indication  that  the  criterion   for continuing the detent on is the existence of those facts and circumstances  which necessitate it. The existence  of  such facts which is the determinant for the exercise of the power is  demonstrable,  and if they are shown not  to  exist  the decision  would not be a decision within the meaning  of  r. 30A and would be amenable on that ground to challenge.   The counter  affidavit  of  the  Deputy  Secretary,  on  record, disclosed the anti-national activities of the petitioner and that the decision under r. 30A that the petitioner had acted and was likely to act in a manner prejudicial to the defence of  India and civil defence was arrived at by  the  Minister after  an examination of all the materials before  him.   So long as the decision was arrived at on such materials, since this  Court does not sit in appeal against such a  decision, it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with the decision on

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the ground that if the Court had examined them it would have come to a different conclusion. [440 C, 441 F-H; 446 F-G] Sadhu  Singh  v. Delhi Administration, [1966] 1  S.C.R.  243 referred to. (iv) It was not a case of a mala fide exercise of power or a case of non-application of mind by the authority  concerned. Since  no  allegation,-, of malice or dishonesty  have  been made  in the petition personally against the Minister.,  his omission  to file a counter-affidavit, by itself, could  not be a ground to sustain the allegation of mala fides or  non- application of mind. [446 D-E]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 137 of 1966. Petition  under Art. 32 of the Constitution of India  for  a writ in the nature of habeas corpus. The petitioner appeared in person. S.  V. Gupte, Solicitor-General.  R. H. Dhebar and  B.R.G.K. Achar, for the respondents. The Judgment of the Court was delivered by Shelat,  J.  The petitioner was detained by an  order  dated December  10,  1965 under Rule 30(i)(b) of  the  Defence  of India Rules, 1962.  The order inter alia stated:               "Whereas  the Central Government is  satisfied               that  with  a view to preventing  Shri  P.  L.               Lakhanpal .... from acting 435               in  any manner prejudicial to tile defence  of               India,  and civil defence, public  safety  and               the   maintenance  of  public  order,  it   is               necessary that he should be detained." On December 24, 1965 he filed a writ petition under Art.  32 of  the  Constitution  in this Court for a  writ  of  habeas corpus  challenging his detention inter alia on the  grounds that  Rule  30(i)(b) was ultra vires s. 3(2)(15)(i)  of  the Defence  of India Act, 1962, that Rule 23 of the Defence  of India (Delhi Detenues) Rules, 1964 gave him a right to  make a representation by providing a review of the said detention order and also by providing that a detenu will be allowed to interview  a legal practitioner for the purpose of  drafting his  representation and that his said right was violated  by his being prevented from making such a representation,  that the  said order violated s. 44 inasmuch as though he was  an editor  of a newspaper action against him was not  taken  as such  editor as provided by that section and  certain  other provisions  in  the Act resulting in the invalidity  of  the said  order  and that the said order was mala  fide  as  the Union Home Minister had failed to file an affidavit swearing as  to  his  satisfaction although  the  petition  contained specific   allegations  denying  such  satisfaction.    That petition(1)  was heard and was dismissed on April  19,  1966 rejecting  the aforesaid contentions.  On June 11, 1966  the Central  Government  passed  an order  continuing  the  said detention  order under r. 3OA(9).  But whereas the order  of December 10, 1965 directed the petitioner’s detention with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, public safety and the  maintenance of public order the said  order  continuing his  detention set out only the defence of India  and  civil defence.  Likewise, though the original order described  the petitioner  as the son of the late Shri Diwan Chand  Sharma, editor  of the Evening View residing at etc., the  order  of June  11, 1966 simply described him as the son of  the  late

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Shri  Diwan Chand Sharma.  This difference probably was  and had  to  be  made as by reason of his detention  he  was  no longer editing the said newspaper and was no longer residing at the address set out in the original order. In  the present petition the petitioner challenges both  the orders on the following grounds:- (i)  that there is no valid order of detention under any  of the provisions of the Act or the Rules made thereunder; (ii) that his continued detention under the order of June  1 1,  1966 was in contravention of Rule 23 of the  Defence  of India (Delhi Detenues) Rules, 1964 inasmuch as he was denied the  right  of  representation by a  letter  of  the  Deputy Secretary  in the Ministry of’ Home Affairs  dated  December 27, 1965; (1) W.P. 47 of 1966 decided on April 19, 1966. 436 (iii) that the detention was punitive and not preventive  as the principal ground of his detention viz., his writings  in his  said paper had ceased to be the ground since  the  said paper  had  become  defunct, the  requisite  declaration  in respect thereof having lapsed; (iv) that the said detention order contravened section 44 of the Act;  and (v)  that  the  orders of detention  and  continuation  were illegal  as  they  were  mala, fide  and  made  without  any application of mind by the Home Minister; consequently there was no satisfaction as required by s. 3 and r. 30(i)(b). Contentions 2, 4 and part of Contention 5 in so far as  they concern the original order of detention no longer survive as they  were disposed of by the decision in W.P. 47  of  1966. The  petitioner therefore cannot be permitted  to  reagitate the  same  questions,  it not being his case  that  any  new circumstances  have  arisen  justifying  their  reagitation. Contention  No.  3  also cannot  be  sustained  because  the affidavit  clearly shows that the detention was ordered  not only because of his writings in the said newspaper but  that the   said   two  orders  were  made   after   taking   into consideration  the  over-all  picture  of  his   activities. Annexure  D  to  the  petition is the  affidavit  of  B.  S. Raghavan, Deputy Secretary in the Ministry of Home  Affairs, filed  in the previous petition.  In that affidavit  it  was clearly  stated  that the activities of the  petitioner  "do conclusively  prove that the petitioner is  a  pro-Pakistani and anti-Indian"; that "there was material before the  Union Home  Minister  about  the  prejudicial  activities  of  the petitioner  and  he was satisfied that it was  necessary  to detail  the petitioner" and that "it was  the  anti-national activities  of the petitioner that was responsible  for  his detention."   That   affidavit   also   stated   that   "the petitioner’s  activities  were sufficient in  themselves  to enable the Central Government to come to the conclusion that if the petitioner was not detained he was likely to act in a manner  prejudicial to the defence of India, civil  defence, public  safety and the maintenance of public order." In  the return  filed in the present petition also the same  officer has  once again stated that "he (the petitioner) is  a  pro- Pakistani  agitator  acting against the  integrity  and  the solidarity  of India.  The history of the activities of  the petitioner shows that he is a pro-Pakistani propagandist and seeks to undermine the unity and integrity of India and  has close contacts and associations with elements which seek  to encourage  force and violence in relation to  Kashmir.   The petitioner   has   been   in   constant   touch   with   the representatives of foreign powers in India, inimical towards India." Para 4 of the return also states that he "is a  paid

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pro-Pakistani  and  anti-Indian".   It  is  true  that   the deponent  in his counter-affidavit in the previous  petition had   relied  on  certain  extracts  culled  out  from   the petitioner’s  writings but those extracts as stated  by  the deponent were in answer 437 to  the petitioner’s claim that he was a journalist  and  an editor.   But assuming that the petitioner’s  writings  were relied on for the purpose of passing the original order,  it is  manifest that they were not the only materials on  which the  order  was  based and the authorities  had  taken  into consideration  the over-all picture of all  his  activities. If that be so the fact that his paper has now become defunct would make no difference and it cannot consequently be  held that the order is punitive and not preventive.  This  leaves the   first   and   part  of  his   fifth   contention   for consideration. The  petitioners argument on the first contention  was  that the order dated June 11, 1966 being based only on the ground of  defence  of India and civil defence  the  other  grounds given in the original order- must be held to be non-existent and that the validity of the original order being  dependent upon  the  satisfaction.  of the Central  Government  it  is impossible to predicate whether the said order was not  made on  the  basis of the non-existent  grounds.   Therefore  he argued there was no valid satisfaction and the order founded on such invalid satisfaction could not be continued under r. 3OA(9);  (2)  that  even  if  the  Central  Government   was competent   to  continue  the  petitioner’s  detention   the validity  of  the  order of the 11th June,  1966  not  being determinative  on  the subjective satisfaction  but  upon  a decision of the Government the grounds and the materials  on which  such decision was made must exist and the  Government was  therefore bound to establish that there were  materials before it upon which its said decision was based. In  order  to  appreciate  these  contentions  it  will   be necessary  to  ascertain the true scope of r.  30A  and  the scheme of the said Rules.  Section 3(1) of the Act  empowers in  generality the Central Government to make such Rules  as appear to be necessary or expedient for securing the defence of India and civil defence etc.  Sub-section 2 provides that such Rules may provide for all or any of the matters therein set out.  Clause (15)(i) empowers the Central Government  to make  rules providing for detention of any person  (a)  whom the  authority empowered by the Rule to detain  suspects  on grounds  appearing  to that authority to  be  reasonable  of having  acted, acting or being about to act or being  likely to act in any manner prejudicial to the defence of India and civil  defence  etc.,  or  lb) with  respect  to  whom  that authority  is satisfied that his detention is necessary  for the  purpose  of  preventing him from  acting  in  any  such prejudicial  manner.   Clause  15(i)  and  the  other  Rules contemplate  and  empower, besides the  Central  Government, other  authority to detain, such authority being  not  below the rank of a District Magistrate.  The jurisdiction of such authority  is  conditioned  under  the  first  part  on  his suspicion and under the second part on his satisfaction that detention  is necessary for purposes therein set  out.   The suspicion, of course has to be on grounds appearing to  that authority to be 438 reasonable and the satisfaction under the second part is the satisfaction  of that authority that detention is  necessary to prevent the person in question from acting in any  manner prejudicial  to the matters set out therein.  Rule  30(1)(b)

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provides that the Central .or the State Government if it  is satisfied  with respect to any particular person that it  is necessary  so to do, may make an order directing that he  be detained.   In  Writ  Petition  47  of  1966  filed  by  the petitioner earlier this Court made a distinction between the first  and the second part of section 3(2)(15)(i)  and  held that  Rule 30(1)(b) was made under the second part  of  that sub-clause and that consequently the only thing required was that  the  authority must be satisfied  that  detention  was necessary  for purposes mentioned therein. It  is  therefore clear that the only condition precedent for the exercise  of power  thereunder is the satisfaction of the Central or  the State  Government that it is necessary to detain the  person ,concerned   to  prevent  him  from  acting  in   a   manner prejudicial  to  the several matters or any one or  more  of them therein set out.  Rule 30A was introduced in the  Rules by  notification  G.S.R. 183 dated December  28,  1962.   It defines  a  detention order as meaning one passed  under  r. 30(1)(b)  and provides for a review in accordance  with  the provisions  therein  contained.  Sub-rule  3  provides  that where  a detention order is made by the Central or  a  State Government or an Administrator a review is to be made by the same  authority.  Under sub-rule 4, if a detention order  is passed  by an officer authorised by a State  Government  the reviewing authority would consist of two officers  specified by  that  Government.  If all order is made  by  an  officer authorised  by the Administrator the reviewing authority  is the Administrator.  Under sub-rule 5, if ,a detention  order is made by an authorised officer he has to forthwith  report the  fact to the reviewing authority.  Under sub-rule  6  on such  report  the  reviewing  authority  after  taking  into account all ’the circumstances of the case has to  recommend to  the  State Government either to confirm  or  cancel  the order  and thereupon that Government may confirm  or  cancel the order as it may deem fit.  Where the reviewing authority is  the  Administrator he may either confirm or  cancel  the order after taking into account all the circumstances of the case.  Sub-rule 7 provides that every detention order passed by  an  authorised  officer  and  confirmed  by  the   State Government  would be reviewed by the reviewing authority  at intervals  of not more than six months and in the  light  of the  recommendation of that authority the  State  Government shall  decide  whether  the  order  shall  be  continued  or cancelled.   A  similar  provision in respect  of  an  order passed  by  an  officer authorised by  an  Administrator  is contained  in  sub-rule  8. Sub-rule 9  with  which  we  are immediately concerned provides that where a detention  order is  passed by the Central or a State Government  such  order shall be reviewed at the aforesaid intervals by the  Govern- ment which made it and upon such review the Government shall 439 decide   whether   the   order  should   be   continued   or cancelled.Thus  where the detention is continued  after  the first  six months, a review by the prescribed  authority  is obligatory  and  a  decision of the  Central  or  the  State Government  or the Administrator as the case may be  is  the condition precedent for continued detention.  Rule 30A  thus provides for a review, the procedure therefor, the different reviewing  authorities, the period within which such  review has  to  be made and the obligation to  decide  whether  the detention should be continued or cancelled after taking into account all the circumstances of the case. In  the present case we are concerned not with  a  detention order  passed  by an authorised officer but by  the  Central Government.   In the case of such an order made  under  rule

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30(1)(b)  the  determinative factor is the  satisfaction  in regard to a particular person that it is necessary to detain him with a view to prevent him from acting prejudicially  to the matters or any one or more of them therein set out.  The jurisdiction  to  detain  is not in respect  of  a  mischief already  committed  but  in  anticipation  that  the  person concerned   may   in   future   act   prejudicially.    Such satisfaction is exclusively that of the detaining  authority and it is inherent in the power that it is and has to be the subjective  satisfaction.   Presumably an  emergency  having been declared by the President the legislature granted  such a  drastic and unique power enabling the Government  to  act quickly to prevent the person concerned from doing  anything deterimental  to the said matters.  In such a case  it  must have  been  presumed  by the  legislature  that  a  judicial process   under   normal  laws  may  be  either   inept   or inappropriate.  Thus the condition precedent to the exercise of  jurisdiction  to detain under r. 30(1)(b)  is  only  the subjective  satisfaction that it is necessary to detain  the person  concerned.  (cf.  Rammanohar Lohia v. The  State  of Bihar).(1) Considering,   however,  the  fact  that  the   notification inducting  in the Rules rule 30A providing for a review  was issued  in December 1962 it would appear that the  necessity for ensuring that a person is not improperly detained or  is not  unnecessarily continued in detention was felt and  that must  have  been the reason why a review  was  provided  for immediately  after  the  detention  in  the  case  where  an authorised  officer has passed the order and in the case  of an  order passed by the Government, Central or State as  the case  may  be, by that Government at every interval  of  not more  than six months.  It may be recalled that in the  case of  an  order  by an officer it is  incumbent  upon  him  to forthwith  report to the reviewing authority  whereupon  the reviewing authority has to recommend to the State Government whether to confirm or cancel the order.  Thus a check on the exercise  of power by an authorised officer  was  considered necessary.  Though there is no such immediate review in (1) [1966] 1 S.C.R. 709. 440 the  case  of  an order passed by the  Central  or  a  State Government, ,sub-rules 7, 8 and 9 of Rule 30A provide for  a review  at intervals of not more than six months (a) by  the reviewing  authority  in the case of an order passed  by  an officer  and (b) by the Government in the case of  an  order passed by the Government.  The provision for review is again a  check preventing a person being unnecessarily,  continued in  detention,  and whether the reviewing authority  is  the Government or the officers it is the Government which has to decide   whether  the  detention  should  be  continued   or cancelled. ,and such decision is the condition precedent for an  order of continuation of detention.  The  difference  in the  words  used  in  Rule  .30(1)(b)  and  Rule  30A  viz., satisfaction  in  one case and decision  after  taking  into account  all  the  circumstances of the case  in  the  other cannot be accidental but must be deliberate and  purposeful. The phraseology used in Rule 30A is not "in its opinion"  or is satisfied" or "has reason to believe" etc., as often used in modern statutes and rules. The question then is: what precisely does the word  "decide" in  Rule  30A  mean ? It is no doubt a  popular  and  not  a technical  word  .According to its dictionary  -meaning  "to decide"  means "settle (question, issue, dispute) by  giving victory to one side; give judgment (between, for, in  favour of,  against); bring, come, to a resolution" and  "decision"

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means  "settlement, (of question etc).,  conclusion,  formal judgment,  making  up  one’s  mind,  resolve,  resoluteness, decided character." As Fazl Ali J. in Province of Bombay  v. Advani(1) observed:               "The word’decision’ in common parlance is more               or  less  a neutral expression and it  can  be               used  with reference to purely executive  acts               as  well  as judicial orders.  The  mere  fact                             that an executive authority has to dec ide some-               thing does not make the decision judicial.  It               is the manner in which the decision has to  be               arrived at which makes the difference and  the               real  test  is: Is there any  duty  to  decide               judicially?" In  that case the question was whether the decision  of  the Bombay Government under s. 3 of the Bombay Land  Requisition Ordinance,  5  of 1947 that a property was  required  for  a public  purpose  was  a quasi judicial act  and  a  writ  of certiorari would lie against such a decision.  The  majority held that it was an administrative act but it is  noteworthy that Mukherjea J. who differed along with Mahajan J. (as  he then was) was of the view that the question whether a public purpose  exists  or  not had to  be  determined  under  that section by the Government of Bombay as there was a lis or  a controversy  between the interest of the public on  the  one hand  and that of the individual who owned the  property  on the other, and the deter- (1) [1950] S.C.R. 621 at 642. 441 initiation  of  the  Government  was  a  judicial  act  such determination  being  a  collateral  matter  on  which   the jurisdiction  to requisition was founded and not a  part  of the  executive  act of requisitioning.  We are  however  not called  upon  in  the present case  to  decide  whether  the function of review and the decision which may be made by the Government  is  a judicial or a quasi judicial  function  or not.Indeed,the  petitioner has not raised any such  question whether the order of the 11th June 1966 was a judicial or  a quasi-judicial one.  We do not therefore propose to  examine the  relevant  provisions of the Rules from  that  point  of view.   The question raised by the petitioner before  us  is whether  the  validity  of the  decision  depends  upon  the existence of relevant circumstances which would  necessitate the continuation of detention and whether such circumstances on which it is founded are demonstrable.  As tersely put  by Lord  Atkin in his famous dissent in Liversidge v.  Anderson (1) is the decision one of a case of thinking that a  person has  a  broken ankle and not a case of his really  having  a broken  ankle or- as Mahajan J. (as he then was) put  it  in Advani’s case(2 ) at p. 659 of the Report:-               "Similarly   can   it  be  said  that   s.   4               contemplates  merely a vacancy in the mind  of               the  Government,  not a vacancy in fact  as  a               real thing." If  the  decision  is to be founded  on  a  mere  subjective satisfaction  or opinion it would be in the former  category but  if it is to be founded on a fact it has to fall in  the latter  category  and  in that event it  would  have  to  be regarded as one based on an objective test.  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

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authorised by the legislature.  The existence of such  facts which  is the determinant for the exercise of the  power  is demonstrable. 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 (1) [1942] A.C. 206. (2) [1950] S.C.R. 621. 442 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 detent ion was concerned, it  thought  that there  should  be different considerations.  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 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  cir- cumstances  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 unauthorised or as one based on considerations irrelevant to the power. Our  attention  was however drawn to the decision  in  Sadhu Singh  v.  Delhi  Administration(1) where  Shah  J.  sitting singly during vacation has held that the order of  detention passed  by the District Magistrate and its  confirmation  by the Delhi Administration were acts pre-eminently  executive, subject to subjective satisfaction and therefore not subject to a judicial review.  He, however, added that even then the court’s power is not excluded to investigate into compliance with  the  procedural safeguards imposed by the  statute  or into the existence of prescribed conditions precedent to the exercise  of  power or into a plea that the order  was  made mala  fide or for a collateral purpose.  The  learned  Judge then proceeded to consider the plea that the review under r.

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30A(8) was a quasi judicial proceeding and that a review  of the facts in the light of subsequent developments, including the  change  of views, if any, of the detenu  since  he  was detained  cannot effectively be made unless he was  afforded an  opportunity to make his representation and convince  the reviewing  authority that the facts and circumstances  which may have justified the original (1) [1966] 1 S.C.R. 243. 443 order did not continue to exist or in the context of changed circumstances  did  not  justify  the  continuation  of  the detention.   In  ,repelling  this plea,  the  learned  Judge observed:               "Making of an order of detention proceeds upon               the subjective satisfaction of the  prescribed               authority in the light of circumstances placed               before him or coming to his knowledge, that it               is  necessary to detain the  person  concerned               with   a   view   to   preventing   him   from               acting...... If that order is purely executive               and not open to review by the Court, a  review               of those very circumstances on which the order               was  made in the light of circumstances  since               the date of that order cannot but be  regarded               as  an executive order.  Satisfaction  of  the               authority under r. 30(1) proceeding upon facts               and  circumstances  which  justifies  him   in               making   an   order  of  detention   and   the               satisfaction  upon review of those very  facts               and    circumstances   in   the    light    of               circumstances which came into existence  since               the  order of detention are the result  of  an               executive determination and are not subject to               judicial review." On  this  view he held that the review was  not  a  judicial function  nor  did the statute require the  safeguard  of  a judicial  approach  or the right of being  heard.   He  also negatived the plea that the word "decide" in r. 3OA(8) meant that there was a lis observing as follows               "That  only  imports that  the  Administration               after reviewing the material circumstances has               to decide whether the detention of the  detenu               should    be    continued    or     cancelled.               Undoubtedly,   in  reviewing  the   order   of               detention,  the Administrator would be  taking               into  account all the  relevant  circumstances               existing at the time when the order was  made,               the  subsequent  developments  which  have   a               bearing on the detention of the detenu and the               representation,  if any, made by  the  detenu.               But  the  rule  contemplates  review  of   the               detention order and in the exercise of a power               to  review a condition of a judicial  approach               is not implied." Shah  J.  in this decision was primarily  dealing  with  the question  whether  the  function of review  and  a  decision following  it is a judicial function and whether there is  a lis  between  the  power  of  the  Government  to   continue detention on the one hand and the right of the detenu to  be released on the other  As already stated that question  does not arise before us and we refrain from deciding, it. Though he  rejected  that plea the learned Judge has  yet  said  in explicit terms that the reviewing authority has to  consider "the material circumstances " and then has to decide whether the  detention  should  be continued or not.   He  has  also

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emphasised that M 15 sup.  CI/66-15 444 the  Administrator while reviewing has to take into  account the  relevant circumstances" existing at the time  when  the Original  order  was made and  the  subsequent  developments having  "a  bearing on the detention".   The  decision  thus presupposes that the Government or the Administrator, as the case may be, cannot decide to continue the detention without considering all the relevant circumstances which existed  at the time of the original order and those which exist at  the time  when the authority decides to continue the  detention. While  making the plea that the use of the word ’decide"  in r. 30A meant that there is a lis, it does not appear to have been  argued  that assuming that the power to  continue  the detention  was  ministerial the condition precedent  to  the exercise  of that power is not the  subjective  satisfaction but  the decision from the facts and circumstances and  that the  validity of the exercise of that power is dependent  on the  existence  of facts and circumstances relevant  to  the purpose  set out in r. 30(1) and r. 30A.  If they are  shown not  to  exist surely the decision would not be  a  decision within  the meaning of r. 30A and would be amenable on  that ground to a challenge. The question then is, is the decision to continue the  order of detention one within the scope of r. 30A ? Relying on the omission in the order of June 11, 1966 of the words  "public safety  and the maintenance of public order" the  petitioner contended that it must be held that those two grounds  never existed  and  that  since the exercise of  power  to  detain depended on the satisfaction of the Government it cannot  be predicated  that  the  omitted grounds did  not  affect  the Government  during  the  process of  its  satisfaction.   He relied on two decisions of this Court, (1) Baradwaj v. State of Delhi(1) and (2) Shibban Lal v. State of U.P.(2) Both the cases  were under the Preventive Detention Act, IV of  1950. In  Baradwaj’s case(2) the question was not of a ground  not existing but of a ground being found to be vague and it  was held  that  even  though the rest of the  grounds  were  not vague,  the  detention  was  not  in  accordance  with   the procedure established by law and was therefore illegal.  The decision therefore turned on the question whether under Art. 22(5) of the Constitution the detenu had an opportunity  ,of effectively   making  a  representation.   In   Shibbanlal’s case(2)  the  Court held that where  the  Government  itself while  confirming  the detention in exercise  of  its  power under s. II admits that one of the two grounds mentioned  in the original order was unsubstantial or non-existent, to say that  the  other  ground  which  still  remained  was  quite sufficient  to sustain the order would be to  substitute  an objective  judicial test for the subjective decision of  the ,executive  authority  which  was  against  the  legislative policy underlying the statute.  In such cases, the  position would  be  the  same  .,as if one of  the  two  grounds  was irrelevant for the purpose of the (1) [1953] S.C.R.708       (2) A.I.R. 1964 S.C.179 445 Act  or  was  wholly illusory and  this  would  vitiate  the detention order as a whole. These decisions cannot help  the petitioner.In  the first place the scheme of the  Preventive Detention  Act  is entirely different from the Act  and  the Rules before us.  Section 3 of that Act confers the power of detention.   Section 7 requires the detaining  authority  to furnish  grounds  of  detention  to the  detenu  to  make  a representation.   Section  8  requires  the  setting  up  of Advisory Boards.  Section 9 requires reference of the  order

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passed  by  the- authority to such Advisory  Board  together with the representation, if any, made by the detenu.   Under section 10, the Board has to make a report to the Government and  the report would be whether there is  sufficient  cause for  detention  or  not.  Under s. 11,  the  Government  may confirm the detention order and continue the detention where the report is that there is sufficient cause.  But where the Board  reports that there is no such sufficient  cause,  the Government  has to revoke the detention order.  It is  clear from s. 9 and the sections following it that the  Government has  to make the reference to the Board within 30 days  from the  order  and  the  Board has to  find  whether  there  is sufficient  cause for detention or not.  The review  by  the Board  is  thus almost contemporaneous.   If  therefore  the Board finds that certain grounds furnished to the detenu did not  in fact exist, it means that they did not exist at  the time when the authority made up its mind to pass the  order. It  is for that reason that the courts have held that  since the  order  is based on subjective satisfaction, it  is  not possible to say whether or not the grounds found not to have existed  affected the process of satisfaction of the  autho- rity  or  not and to say that those only which  existed  had made up the satisfaction would be to substitute the  court’s objective  test in place of the subjective  satisfaction  of the detaining authority.  The scheme of rules 30(1) and  30A is  totally different from that of the Preventive  Detention Act.   Where an order is made under r. 30(1)(b), its  review is at intervals of periods of not more than six months.  The object  of  the  review  is to decide  whether  there  is  a necessity  to  continue the detention order or  not  in  the light   of  the  facts  and  circumstances   including   any development  that has taken place in the meantime.   If  the reviewing authority finds that such a development has  taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do  not subsist, that is not to say that those  reasons  did not  exist  at the time of passing the  original  order  and therefore the satisfaction was on grounds which did not then exist.   It is easy to visualise a case where the  authority is  satisfied  that an order of detention  is  necessary  to prevent a detenu from acting in a manner prejudicial to  all the objects set out in r. 30 (1).  At the end of six  months the reviewing authority on the materials before it may  come to  a decision that the detention is still necessary as  the detenu is likely to act in a manner prejudicial 446 to some but not all the matters.  Provided such decision  is arrived  at within the scope of r. 30A the decision to  con- tinue  the detention order would be sustainable.   There  is thus no analogy between the provisions of review in the  two Acts and therefore decisions on the Preventive Detention Act cannot be availed of by the petitioner. As  regards  the  contention as to mala  fides  it  will  be observed  that  the original order was passed by  the  Union Home Minister while the order under r. 30A was passed by the Minister  of State of Home Affairs.  The first part  of  the contention  has already been rejected by this Court  in  the petitioner’s  earlier Writ Petition and therefore cannot  be reagitated.  The contention in regard to the second part was that  since  the  State Minister himself has  not  filed  an affidavit swearing to his decision and the affidavit on  re- cord  is  that of the Deputy Secretary there is  nothing  to show that the Minister had arrived at a decision that  there were facts and circumstances necessitating the  continuation of  the  petitioner’s detention.  The reasons given  by  the

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petitioner for this contention are in substance the same  as those urged in the earlier petition and which were  rejected by  this  Court  then.  Since no  allegation  of  malice  or dishonesty have been made in the petition personally against the Minister it is not possible to say that his omission  to file an affidavit in reply by itself would be any ground  to sustain  the allegation of mala fides or non-application  of mind.  The affidavit by the Deputy Secretary discloses  that the  decision  under r. 30A was arrived at by  the  Minister after  an examination of all the materials before him.   The affidavit  also discloses the activities of  the  petitioner and  the  conclusion  arrived at by the  Minister  that  the petitioner  had  acted  and was likely to act  in  a  manner prejudicial  to the defence of India and civil defence.   So long  as  that decision was arrived at on  materials,  since this Court does not sit in appeal against such a decision it would  not ordinarily examine the adequacy or the  truth  of those  materials and would not interfere with that  decision on  the ground that if the Court had examined them it  would have  come to a different conclusion.  It is  therefore  not possible to agree with the contention that this is a case of a  mala fide exercise of power or a case of  non-application of mind by the authority concerned. For  the  reasons  aforesaid  the  petition  fails  and   is dismissed. V.P.S.                             Petition dismissed. 447