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PETITIONER: PURANLAL LAKHANPAL

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 24/05/1957

BENCH:

ACT:        Preventive Detention-Order continuing such detention  beyond        three  months-Validity-Opinion of Advisory Board, if a  pre-        requisite  -’Such  detention’,  meaning  of-Constitution  of        India, Art. 22(4)(a) -Preventive Detention Act, 1950 (Act IV        of 1950) as amended by the amending Act of 195I (No.  IV  of        1951), s. II(I).

HEADNOTE:        The  appellant  was arrested under s. 3  Of  the  Preventive        Detention Act, 1950 (lV Of 1950) as amended by the  amending        Act Of 1951.  The grounds of his detention were communicated        to  him  as  required by s. 7 Of the Act and  his  case  was        thereafter  put  up before the  Advisory  Board  constituted        under  s. 8 of the Act.  The Board reported that  there  was        sufficient  reason for his detention and thereupon the  Cen-        tral  Government acting under s.11 (1) of the Act  confirmed        the  order  of detention and directed  that  such  detention        should continue for a period of twelve months from the  date        of detention.  The appellant challenged the validity of this        order by an application to the Punjab High Court under  Art.        226  of  the Constitution for a writ of  habeas  corpus  and        contended that sub-s. (1) of s. 11 of the Act was  constitu-        tionally  invalid  as it contravened the provision  of  Art.        22(4)(a) of the Constitution.  The High Court found  against        him.   The same point was canvassed in appeal to this  Court        and  it was contended that the expression  ’such  detention’        occurring  in sub-cl. (a) of cl. (4) of Art. 22 referred  to        detention for a period longer than three months mentioned in        cl. (4) Of the Article and s. 11(1) of the Act, in so far as        it permitted detention for more than three months without  a        specific  report  from  the Advisory Board  that  there  was        sufficient  cause for detention for more than three  months,        was ultra vires.  It was contended on behalf of the Union of        India  that  the  expression ,such  detention’  referred  to        ’preventive  detention’ occurring in the first line  of  cl.        (4)  of Art. 22 and what an Advisory Board  contemplated  by        sub-cl.  (a) of that clause was intended to do was  only  to        give  its opinion as to whether there was  sufficient  cause        for the detention itself and not as to the period of  deten-        tion.        Held  (per Bhagwati, jafer Imam, S. K. Das and J.  L.  Kapur        Jj.   Sarkar  J. dissenting).  The  contention  advanced  on        behalf  of  the respondent was correct and the  appeal  must        fail.   The expression ’such detention’ in Art. 22(4)(a)  of        the  Constitution refers to preventive detention and not  to        any  period for which such detention should continue and  s.        11(1)  of the Preventive Detention Act does  not  contravene        the provision of Art. 22(4)(a) of the Constitution,

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                                  461        The  true  scope and effect of cl. (4) of Art.  22  must  be        judged  in the light of the entire scheme envisaged by  Art.        22 and so understood, it becomes clear that the Constitution        could not have intended that while the determination of  the        necessity  of  preventive detention should be  left  to  the        Executive,  the determination of the period for  which  such        detention  should  continue should be left to  the  Advisory        Board.  In the very nature of things any decision as to  the        period of such detention can be taken only by the  detaining        authority upon which has been placed the responsibility  for        the  detention.   The  reference to the  Advisory  Board  is        intended  to be a safeguard against any possible  misuse  of        its  power by the Executive and affords a machinery for  the        review  of its decision on the basis of  the  representation        made  by the detenu, the grounds of detention or the  report        of  any Officer who may have passed the order.  It is not  a        limitation on the Executive’s discretion as to the discharge        of its duties connected with preventive detention.        A.   K. Gopalan v. The State of Madyas, (1950) S.C.R. 88,        referred to.        An   examination of the scheme of the Act shows that its        provisions are in conformity with the relevant provisions of        the  Constitution.  While the Act authorises  detention  for        more  than three months, it does provide for a reference  of        the order of detention to the Advisory Board and it is  only        after  the Advisory Board has made its report that the  Gov-        ernment  can fix the period of detention under s.  11(1)  of        the Act.        Makhan Singh Tarsikka v. State of Punjab, (1952) S.C.R.  368        and  Dattatreya  Moreshway  Pangaykar v.  State  of  Bombay,        (1952) S.C.R. 612, referred to.        Held  further, that where the appropriate authority  refuses        to  disclose any facts or particulars as to  dates,  persons        and  place,  on  the ground that such  disclosure  would  be        against  public  interest,  under cl. (6) of  Art.  22,  the        person  in detention cannot be heard to say, apart from  the        question  of mala fides, that the grounds did  not  disclose        the necessary facts or particulars or that in the absence of        such  facts or particulars he was not in a position to  make        an  effective  representation.   In  the  present  case  the        grounds gave him a sufficient opportunity to make an  effec-        tive representation.        Lawrence  Joachim  Joseph D’Souza v. The  State  of  Bombay,        (1956)  S.C.R. 382 and State of Bombay v. Atma  Ram  Sridhay        Vaidya, (1951) S.C.R. 167, relied on.        The  test of the mala fides of the Executive in  passing  an        order  of preventive detention is whether the  Executive  in        making  such  order was actuated by  any  ulterior  purposes        other than those mentioned In the order of detention.        462        Per  Sarkar,  J.-The  expression ’such  detention   in  Art.        22(4)(a)  of the Constitution means detention for  a  period        longer than three months and cannot mean detention  simplic-        iter.  The object of Art. 22(4) is to impose a limitation on        the  power which the Parliament and the  State  Legislatures        have, under Art. 246 of the Constitution, to enact laws  for        preventive  detention by making such detention, where it  is        to be extended beyond three months, dependent on the opinion        of an Advisory Board.        There is nothing in the language of Art. 22(4) to show  that        the  safeguard the Constitution intended to provide  by  the        opinion of the Advisory Board is available in other cases of        detention.        A.   K.  Gopalan v. The State of Madras, (1950)  S.C.R.  88.

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      referred to.        It  cannot be said that since the Act provides for  the  ob-        taining  of  the  opinion of the Advisory Board  as  to  the        sufficiency  of  the cause for detention, that  opinion,  in        view of Art. 22(4)(a), necessarily is as to the  sufficiency        of  the  cause  for detention for more  than  three  months.        Where  the statute does not contain the provision  that  the        Advisory  Board must report that in its opinion there  is  a        sufficient  cause for detention for more than three  months,        as required by Art. 22(4)(a) of the Constitution, the lacuna        cannot  be  deemed to be cured by  implication.   A  statute        which  authorises detention for a period longer  than  three        months  without making a provision that the opinion  of  the        Advisory  Board  must be obtained that there  is  sufficient        cause for detention for a period longer than three months is        to that extent invalid.        Makhan Singh Tarsikka v. The State of Punjab, (1952)  S.C.R.        368  and Dattalreya Moreshwar Pangarkay v.The State of  Bom-        bay, (1952) S.C.R. 612, considered.

JUDGMENT:        CRIMINAL APPELLATE  JURISDICTION: Criminal Appeal No. 96  of        1957.        Appeal by special leave from the judgments and orders  dated        September 24, 1956, of the Circuit Bench of the Punjab  High        Court  at Delhi and dated September 26, 1956, of the  Punjab        High Court at Chandigarh in Criminal Writ No. 128-D of 1956.        Appellant in person.        C. K.     Daphtary, Solicitor-General of India, and R. H.        Dhebar,   for the respondent.        1957.     May 24.  BY THE COURT.-We dismiss the appeal by  a        majority of 4 to 1 (A.  K. Sarkar J. dissenting) for reasons        to be recorded later.        463        1957.  September 17.  The Judgment of Bhagwati, Jafer  Imam,        S. K. Das and J. L. Kapur JJ. was delivered by S. K. Das  J.        Sarkar J. delivered a separate judgment.        S.   K.  DAS J.-This is an appeal by special leave, and  the        appellant  is  Puran Lal Lakhanpal.’6n July  21,  1956,  the        Government  of India in the Ministry of Rome Affairs  passed        an  order of preventive detention against the  appellant  in        which  it was stated, inter alia, that with a view  to  pre-        venting the appellant from acting in a manner prejudicial to        the  security of India and the relations of India with  for-        eign  powers, it was necessary to make an order against  the        appellant.   The order then concluded-" Now,  therefore,  in        exercise  of the powers vested in the Central Government  by        cl.  (a) (i) of sub-s. (1) of s. 3 of the Preventive  Deten-        tion Act, 1950 (Act No. IV of 1950), as amended, the Central        Government  hereby orders that the said Shri Puran Lal  Lak-        hanpal, son of Shri Diwan Chand Sharma, be detained."        The appellant was arrested and taken in custody on the  same        date On July 24, 1956, the grounds of detention were  commu-        nicated to the appellant under s. 7 of the Preventive Deten-        tion  Act,  No. IV of 1950, hereinafter referred to  as  the        Act.  The case of the appellant was then sent to an Advisory        Board  constituted under s. 8 of the Act, and  the  Advisory        Board having reported that there was, in its opinion, suffi-        cient  Gause  for detention of the  appellant,  the  Central        Government  confirmed the order of detention on  August  20,        1956, and stated further that the appellant ",shall continue        in detention for a period of twelve months from the date  of        his  detention".  This order was passed under sub-s. (1)  of

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      s. 11 of the Act.        Before  that date, however, the appellant moved  the  Punjab        High  Court as also this Court challenging the  legality  of        his  detention  and asked for the :issue of a  writ  in  the        nature  of  a writ of habeas corpus.  The petition  to  this        Court was dismissed and as nothing turns upon that petition,        no further reference need be        464        made to it.  In the petition to the Punjab High Court  under        Art. 226 of the Constitution, the appellant was permitted to        urge  an additional ground to the effect that sub-s. (1)  of        s. 11 of the Act was unconstitutional inasmuch as it offend-        ed against Art. 22(4)(a) of the Constitution.  This  consti-        tutional  point  was referred to and decided by  a  Division        Bench  of the Punjab High Court by an order dated  September        24,  1956.  The High Court held that sub-s. (1) of s. 11  of        the  Act was neither repugnant to nor inconsistent with  the        provisions  of  Art. 22(4) of the  Constitution.   A  single        Judge of the High Court then dealt with the petition of  the        appellant  on  merits  and dismissed it by  an  order  dated        September  26,  1956.  The appellant then moved  the  Punjab        High Court unsuccessfully for leave to appeal to this Court.        He  then  moved this Court, and obtained  special  leave  to        appeal  from the aforesaid orders of the Punjab  High  Court        dated September 24, and September 26, 1956, respectively.        We  heard the appellant, who argued his case ill person,  on        May 22, 23 and 24, 1957.  At the conclusion of the arguments        on  the last day of the term before the commencement of  the        vacation,  we intimated to the appellant the majority  deci-        sion of the Court that his appeal was dismissed, but  stated        that  reasons for the decision would be given later.   These        reasons  we now propose to give in the paragraphs that  fol-        low.        The  first and foremost point which the appellant has  urged        in  support of his appeal is the constitutional point,  that        is,  the  validity of sub-s. (1) of s. 11 of the  Act.   The        argument of the appellant is that sub-s. (1) of s. 11 of the        Act does not conform to the constitutional mandate given  by        sub-  cl.  (a) of cl. (4) of Art. 22  of  the  Constitution.        Therefore,  our primary duty is " to lay the Article of  the        Constitution  which is invoked beside the statute  which  is        challenged and to decide whether the latter squares with the        former ". Article 22 of the Constitution, in so far as it is        relevant for our purposes, is in these terms:        "22.        (1)..................................................        (2)...................................................        465        (3)  Nothing in clauses (1) and (2) shall apply-        (a)  to any person who for the time being is an enemy  alien        ; or        (b) to any person who is arrested or detained under    any        law providing for preventive detention.        (4)  No law providing for preventive detention shall  autho-        rise  the  detention of a person for a  longer  period  than        three months unless-        (a)  an  Advisory  Board consisting of persons who  are,  or        have been, or are qualified to be appointed as, Judges of  a        High  Court has reported before the expiration of  the  said        period  of three months that there is in its opinion  suffi-        cient cause for such detention:        Provided that nothing in this sub-clause shall authorise the        detention of any person beyond the maximum period prescribed        by any law made by Parliament under sub-clause (b) of clause        (7); or

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      (b)  such  person is detained in accordance with the  provi-        sions  of any law made by Parliament under  sub-clauses  (a)        and (b) of clause (7).        (5)  When  any person is detained in pursuance of  an  order        made  under any law providing for preventive detention,  the        authority making the order shall, as soon as may be,  commu-        nicate  to  such person the grounds on which the  order  has        been  made and shall afford him the earliest opportunity  of        making a representation against the order.        (6)  Nothing  in  clause  (5) shall  require  the  authority        making  any such order as is referred to in that  clause  to        disclose facts which such authority considers to be  against        the public interest to disclose.        (7)  Parliament may by law prescribe-        (a)  the circumstances under which, and the class or classes        of  cases  in which, a person may be detained for  a  period        longer than three months under any law providing for preven-        tive detention without obtaining the opinion of an  Advisory        Board in accordance with the provisions of sub-clause (a) of        clause (4);        (b)  the  maximum  period for which any person  may  in  any        class or classes of cases be detained under any law  provid-        ing for preventive detention; and        466        (c)  the procedure to be followed by an Advisory Board in an        inquiry under sub-clause (a) of clause (4)."        Section  11 of the Act, which is challenged  as  unconstitu-        tional states :        " 11. (1) In any case where the Advisory Board has  reported        that there is in its opinion sufficient cause for the deten-        tion of a person, the appropriate Government may confirm the        detention  order  and continue the detention of  the  person        concerned for such period as it thinks fit.        (2)  In any case where the Advisory Board has reported  that        there  is in its opinion no sufficient cause for the  deten-        tion  of  the person concerned, the  appropriate  Government        shall revoke the detention order and cause the person to  be        released forthwith."        Now, the point taken by the appellant is this.  According to        him, the expression such detention’ occurring in sub-cl. (a)        of  cl.  (4) of Art. 22 refers not merely  to  the  original        order  of  preventive detention but to the  detention  of  a        person for a period longer than three months; therefore, the        Advisory Board when it makes . its report is required  under        the  Sub-clause to record its opinion that there  is  suffi-        cient  cause not merely for the original order of  detention        but  also for detention of that person for a  period  longer        then three months.  It is contended that such an opinion was        not recorded by the Advisory Board in the present case,  and        Sub-s. (2) of s. 10 of the Act merely required the report of        the  Advisory Board to specify its opinion as to whether  or        not  there  was sufficient cause for the  detention  of  the        appellant.  The appellant’s contention is that sub-s. (1) of        s.  11 of the Act, in so far as it permits  the  appropriate        Government to continue the detention of the person concerned        beyond  a period of three months without a  specific  report        from  the Advisory Board that there is sufficient cause  for        his  detention for more than three months, is  ultra  vires;        because  it  does not conform to sub-cl. (a) of cl.  (4)  of        Art. 22, nor does it give effect to the true meaning of  the        expression  ’such  detention’  occurring in  the  ;aid  sub-        clause.                                    467        On  behalf of the respondent, the argument is that  the  ex-        pression  ’such detention’ occurring in sub-cl. (a,) of  cl.

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      (4) of Art. 22 refers back to ’preventive detention’  occur-        ring  in the first line of el. (4), and under the said  sub-        clause  the  Advisory  Board is to give its  opinion  as  to        whether  there is sufficient cause for the detention of  the        person  concerned;  there is no duty cast  on  the  Advisory        Board to determine the period of detention, and the  failure        of  the Advisory Board to state in its report that there  is        sufficient  cause for the detention of the person  concerned        for more than three months is no violation of the  constitu-        tional mandate contained in the said sub-clause.        We  have to determine the correctness or otherwise of  these        rival contentions.  No decision directly deciding the  point        at issue has been brought to our notice.  There are,  howev-        er, certain observations made in A. K. Gopalan v. The  State        of Madras (1), with regard to the meaning and effect of sub-        cl. (a) of cl. (4) of Art. 22, to which a reference must now        be made.  At page 117 of the report, Kania C. J. said:        "  Article  22(4) opens with a double negative.   Put  in  a        positive  form  it will mean that a law which  provides  for        preventive  detention for a period longer than three  months        shall  contain a provision establishing an  advisory  board,        (consisting of persons with the qualifications mentioned  in        sub-clause (a)), and which has to report before the  expira-        tion of three months if in its opinion there was  sufficient        cause for such detention.  This clause if it stood by itself        and  without  the remaining provisions of Article  22,  will        apply  both  to the Parliament and the  State  Legislatures.        The proviso to this clause further enjoins that even  though        the  advisory  board may be of the opinion  that  there  was        sufficient cause for such detention, i.e., detention  beyond        the period of three months, still the detention is not to be        permitted  beyond the maximum period, if any, prescribed  by        Parliament under Article 22(7)(b).  Again the whole of  this        sub-clause  is made inoperative by Art. 22(4)(b) in  respect        of an Act of preventive detention passed by Parliament under        clauses (7)(a) and        (b)  Inasmuch as the impugned Act is an Act of the        (1)  [1950] S.C.R. 88, 117.        60        468        Parliament  purported  to be so made, clause  22(4)  has  no        operation and may for the present discussion be kept aside."        His Lordship was considering the Act of 1950 previous to the        amendments  subsequently made therein from 1951 onward,  and        the  observations  appear to establish the  following  three        points:  first,  clause (4) of Art. 22, put  in  affirmative        form,  has reference to a law which provides for  preventive        detention and authorises detention for a period longer  than        three  months; second, the expression ’such  detention’  has        again reference to such a law providing for detention beyond        a period of three months; and lastly, el. (4) of Art. 22 had        no  application  to the Act of 1950 as it  then  stood.   We        shall presently show that the first and the second points do        not really support the appellant’s contention, and the  last        had particular reference to ss. 9 and 12 of the Act of 1950,        as  it then stood.  The appellant has, however, pointed  out        that  under the Act as it now stands, every order of  deten-        tion has to be placed before the Advisory Board (a. 9 of the        Act) and the Advisory Board has to report about every  order        of  detention (s. 10 of the Act).  Though under s. II  A  of        the  Act  the  maximum period for which any  person  may  be        detained  in pursuance of a detention order which  has  been        confirmed  under  s. 11, is twelve months from the  date  of        detention,  the  Act now contains no provisions  as  to  the        circumstances under which, or the class or classes of  cases

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      in which, a person may be detained for a period longer  than        three  months without obtaining the opinion of the  Advisory        Board; therefore, the argument of the appellant is that  the        last  point  made by the observations of Kania  C.J.  is  no        longer  valid in view of the amendments made in the  Act  of        1950.   We have proceeded in this case on the  footing  that        sub-cl.  (a) of el. (4) of Art. 22 applies to the Act as  it        stands after the amendments, and even on that footing  there        is, in our opinion, no inconsistency between that sub-clause        and the impugned provisions of the Act, as we shall present-        ly explain.        In his dissentient judgment in Gopalan’s case (supra),  Fazl        Ali J., made the following observations with                                    469        regard  to cl. (4) of Art. 22.  Said his Lordship  at  pages        170 and 171 of the report :        " In connection with the first point, the question arises as        to  the exact meaning of the words I such detention’  occur-        ring in the end of clause (4)(a).  Two alternative interpre-        tations were put forward: (1) ’such detention’ means preven-        tive  detention; (2) ’such detention’ means detention for  a        period  longer than three months.  If the first  interpreta-        tion  is  correct, then the function of the  advisory  board        would  be to go into the merits of the case of  each  person        and simply report whether there was sufficient cause for his        detention.   According  to  the  other  interpretation,  the        function  of  the advisory board will be to  report  to  the        Government whether there is sufficient cause for the  person        being detained for more than three months.  On the whole,  I        am inclined to agree with the second interpretation.   Prima        facie, it is a serious matter to detain a person for a  long        period  (  more than three months) without  any  enquiry  or        trial.   But article 22(4) (a) provides that such  detention        may  be ordered on the report of the advisory board.   Since        the  report must be directly connected with the  object  for        which it is required, the safeguard provided by the article,        viz.,  calling for a report from the advisory  board,  loses        its value, if the advisory board is not to apply its mind to        the  vital question before the Government,  namely,  whether        prolonged  detention (detention for more than three  months)        is justified or not.  Under article 22 (4) (a), the advisory        board  has to submit its report before the expiry  of  three        months and may therefore do so on the eighty-ninth day.   It        would be somewhat farcical to provide, that after a man  has        been detained for eighty-nine days, an advisory board is  to        say  whether  his initial detention was justified.   On  the        other  hand’.  the  determination of  the  question  whether        prolonged detention (detention for -more than three  months)        is  justified must necessarily involve the determination  of        the question whether the detention was justified at all, and        such an interpretation only can give real meaning and effec-        tiveness  to  the  provision.  The provision  being  in  the        nature of a        470        protection  or safeguard, I must naturally lean towards  the        interpretation which is favourable to the subject and  which        is  also in accord with the object in view." These  observa-        tions, it is urged, support the appellant’s contention.        Patanjali  Sastri J. (as he then was) took a view  different        from that of Fazl Ali J. in Gopalan’s case (supra), and made        the  following  observations  at pages 209 and  210  of  the        report:        "  It was argued that the words I sufficient cause for  such        detention’ in sub-clause (a) of clause (4) had reference  to        the  detention beyond three months mentioned in  clause  (4)

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      and  that  this view was supported by the language  of  sub-        clause (a) of clause (7) whereby Parliament is authorised to        prescribe  the  circumstances under which and the  class  or        classes  of  cases in which a person may be detained  for  a        period  longer than three months without the opinion  of  an        advisory board.  In other words, learned counsel  submitted,        the  combined  effect  of clauses (4) and (7)  was  that  no        person  could  be detained for a period  over  three  months        without  obtaining  the opinion of an  advisory  board  that        there  was  sufficient cause for detention  for  the  longer        period, except in cases where Parliament passed a law autho-        rising detention for such period even without the opinion of        an  advisory board.  Thus, these two clauses were  concerned        solely with the duration of the preventive detention, and so        was the advisory board which those clauses provided for that        purpose.  I am unable to accept this view.  I am inclined to        think  that  the words ’such detention’  in  sub-clause  (a)        refer  back to the preventive detention mentioned in  clause        (4)  and  not to detention for a longer  period  than  three        months.   An  advisory board, composed as it has  to  be  of        Judges  or lawyers, would hardly be in a position  to  judge        how  long  a  person under preventive  detention,  say,  for        reasons  connected with defence, should be  detained.   That        must be a matter for the executive authorities, the  Depart-        ment of Defence, to determine, as they alone are responsible        for  the defence of the country and have the necessary  data        for taking a decision on the point.  All that an        471        advisory board can reasonably be asked to do, as a safeguard        against  the  misuse of the power, is to judge  whether  the        detention is justified and not arbitrary or mala fide.   The        fact that the advisory board is required to make its  report        before  the  expiry of three months and so could  submit  it        only  a day or - two earlier cannot legitimately lead to  an        inference that the board was solely concerned with the issue        whether  or  not the detention should continue  beyond  that        period.  Before any such tribunal could send in its report a        reasonable  time  must  elapse, as the grounds  have  to  be        communicated  to  the person detained, he has  to  make  his        representation  to the detaining authority which has got  to        be  placed before the board through the appropriate  depart-        mental  channel.  Each of these steps may, in the course  of        official  routine, take sometime, and three  months’  period        might  well have been thought a reasonable period  to  allow        before the board could be required to submit its report."        These observations are undoubtedly against the contention of        the appellant.        It  is necessary to consider the whole scheme of Art. 22  in        order  to appreciate the true scope. and effect of cl.  (4).        Article 22 provides for protection against arrest and deten-        tion in certain cases.  Clauses (1) and (2) refer to  arrest        and  detention  in  certain circumstances  and  provide  for        certain  safeguards.   Clause (3) then states,  inter  alia,        that  nothing in cls. (1) and (2) shall apply to any  person        who  is arrested or detained under any law providing  for  "        preventive  detention"; in other words, a law relating to  "        preventive  detention" is put in a special category  and  is        dealt  with in clauses (4) to (7).  The power  to  legislate        laws of preventive detention is given to Parliament and  the        State Legislatures by the Constitution.  This power,  howev-        er, is not absolute, but is controlled by the provisions  of        cls.  (4), (5), (6) and (7) of Art. 22.  The maximum  period        of  detention  is not prescribed by  the  Constitution,  but        Parliament may by law prescribe such a period.  The  Consti-        tution contemplates that any law which authorises  detention

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      for  more  than three months should be  subject  to  certain        safeguards,        472        as  provided  in cl. (4) of Art. 22 which directs  that  the        case  of a detained person under any law authorising  deten-        tion  for  more than three months must be the subject  of  a        report  by  an  Advisory Board.  The Advisory  Board  is  to        report whether there is sufficient cause for such detention.        If  the Advisory Board reports that the detention is  justi-        fied,  then  only  the detaining  authority  determines  the        period  of  detention.  On the other hand, if  the  Advisory        Board  reports  that  the detention is  not  justified,  the        detained  person  must be released.  Clause (4) of  Art.  22        does  not  state that the Advisory Board  has  to  determine        whether the person detained should be detained for more than        three  months.   What  it has to determine  is  whether  the        detention is at all justified.  The setting up of an Adviso-        ry Board to determine whether such detention is justified is        considered  as  a  sufficient  safeguard  against  arbitrary        detention under any law of preventive detention which autho-        rises  detention  for more than three  months.   The  matter        before the Advisory Board is the subject of detention of the        person concerned and not for how long he should be detained.        Clause  (7)  of Art. 22 is an exception to cl. (4)  of  that        Article.   It authorises Parliament alone to pass a  law  of        preventive  detention authorising detention of a person  for        more  than three months without obtaining the opinion of  an        Advisory Board so long as the circumstances under which  and        the  class  or  classes of cases in which a  person  may  be        detained  for a longer period than for three months are  set        out in the enacted law.  The Constitution evidently does not        contemplate  detention of the person for a period  of  three        months or less as sufficiently serious to have the safeguard        of a report by an Advisory Board to the effect that there is        sufficient  cause for detention.  Under the Constitution  an        Advisory  Board is to be set up for all cases  of  detention        under  a  law  authorising detention  for  more  than  three        months.   When  the  -case of a detained  person  is  placed        before the Advisory Board under such law it must be  assumed        that  the Advisory Board knows that if it reports  that  the        detention is justified, the detenu may be detained for  more        than three        473        months  and  up to the maximum period provided by  the  law.        The  expression " such detention" in Art. 22 (4) (a)  refers        to preventive detention and not to how long the person is to        be detained.        Moreover, it is clear that clause (4) lays down  prohibition        against any law providing for detention for more than  three        months  without a provision foran Advisory Board,  and  cl.’        (5)  provides  for furnishing the grounds of  detention  and        affording an opportunity of making a representation  against        the order of detention.  But these safeguards are subject to        cls.  (6) and (7).  Under the former, facts, the  disclosure        of  which  the  detaining authority  considers  against  the        public  interest, are not required to be  furnished.   Under        the latter, Parliament may prescribe the circumstances under        and  the class or classes of cases in which a person may  be        detained  for  a  period longer than  three  months  without        obtaining  the opinion of an Advisory Board.  The  Constitu-        tion  has  therefore  in one case given  discretion  to  the        Executive not to furnish facts in certain circumstances  and        in  the other case left it to Parliament to prescribe  cases        or classes of cases in which reference to the Board need not        be made.  Therefore, both the furnishing of grounds and  the

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      report  of  the Board are, in a sense,  limited  safeguards.        Considering  the  circumstance that the detention  is  of  a        preventive nature, the Executive has necessarily to consider        whether a person should be detained and the period for which        he should be detained.  It could not have been the intention        to give the power of determining the necessity of  detention        of a particular person to the Executive, and leave to anoth-        er  authority-the  Board  in this case-to  say  whether  the        detention  should be for three months or more.  In the  very        nature of things the decision as to the period of  detention        must  be of the detaining authority, because it is  the  au-        thority  upon  which responsibility for detention  has  been        placed.   The  reference to the Board is  only  a  safeguard        against  Executive vagaries and high-handed action and is  a        machinery devised by the Constitution to review the decision        of the Executive        474        on  the  basis of a representation made by the  detenu,  the        grounds of detention, and where the order is by an  officer,        the  report of such officer.  It is not a limitation on  the        Executive’s  discretion  as to the discharge of  its  duties        connected  with  preventive detention.; it  is  a  safeguard        against misuse of power.        What then is the scheme of the Act under our consideration ?        An order of detention is made under s. 3 of the Act.  If the        order  is  made by any officer under sub-s. (2) of s.  3,  a        report has to be submitted to the State Government to  which        the officer is subordinate and the order does not remain  in        force  for more than twelve days unless in the  meantime  it        has  been approved by the State Government.  Under s.  7  of        the Act, the grounds of detention have to be communicated to        the  detenu, as soon as may be but not later than five  days        from  the date of detention.  Section 8 relates to the  con-        stitution  of an Advisory Board.  Under s. 9 in  every  case        where  a  detention order has been made under the  Act,  the        appropriate  Government shall, within thirty days  from  the        date of detention under the order, place before the Advisory        Board  the grounds on which the order has been made and  the        representation,  if  any, made by the  detenu.   Section  10        prescribes the procedure of the Advisory Board and lays down        that the Advisory Board must submit its report to the appro-        priate  Government within ten weeks from the date of  deten-        tion.   Sub-s.  (2) of s. 10 states that the report  of  the        Advisory Board shall specify in a separate part thereof  the        opinion of the Advisory Board as to whether or not there  is        sufficient cause for the detention of the person  concerned.        Then  comes s. I I which we have already quoted in  extensor        The  scheme of the Act has been explained in  several  deci-        sions  of this Court.  In Makhan Singh Tarsikka v. State  of        Punjab  (1), it was stated that whatever might be the  posi-        tion  under the Preventive Detention Act of 1950, before  it        was  amended in 1951, under the Act as amended in 1951,  the        Government  must  determine  what the  period  of  detention        should be only after the Advisory Board to which the case        (1)) [1932] S.C.R. 368, 370.                                    475        is referred reports that the detention is justified.  Patan-        jali Sastri C. J. observed:        " It is, therefore, plain that it is only after the Advisory        Board, to which the case has been referred, reports that the        detention is justified, the Government should determine what        the  period  of  detention should be and  not  before.   The        fixing  of  the  period of detention in  the  initial  order        itself  in the present case was, therefore, contrary to  the        scheme of the Act and cannot be supported."

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      In  Dattatreya  Moreshwar Pangarkar v.  State  of  Bombay(1)        Mukherjea J. (as he then was) said:        "  It is now settled by a pronouncement of this  Court  that        not only it is not necessary for the detaining authority  to        mention  the period of detention when passing  the  original        order  under  s. 3(1) of the Preventive Detention  Act,  but        that  the  order would be bad and illegal if any  period  is        specified, as it might prejudice the case of the detenu when        it goes up for consideration before the Advisory Board.  The        Advisory Board again has got to express its opinion only  on        the point as to whether there is sufficient cause for deten-        tion of the person concerned.  It is neither called upon nor        is  it  competent to say anything regarding the  period  for        which  such  person should be detained.  Once  the  Advisory        Board expresses its view that there is sufficient cause  for        detention at the date when it makes its report, what  action        is  to be taken subsequently is left entirely to the  appro-        priate  Government and it can under s. 11 (1) of the  Act  i        confirm  the detention order and continue the  detention  of        the person concerned for such period as it thinks fit’.   In        my  opinion,  the words ’for such period as it  thinks  fit’        presuppose and imply that after receipt of the report of the        Advisory  Board the detaining authority has to make  up  its        mind as to whether the original order of detention should be        confirmed  and if so, for what further period the  detention        is  to  continue.  Obviously, that is the proper  stage  for        making an order or decision of this description as the        (1)  [I952] S.C.R. 612, 626,        61        476        investigation with regard to a particular detenu such as  is        contemplated  by the Preventive Detention Act is then at  an        end and the appropriate Government is in full possession  of        all the materials regarding him."        At page 637 of the report, the learned Judge further said:        "  Under the Constitution, the detention of a ,person  under        any  law providing for preventive detention cannot be for  a        period  of more than three months unless the Advisory  Board        is  of  the opinion that there is sufficient cause  for  the        detention of the person concerned.  The Constitution  itself        has specified the maximum limit of the initial detention and        detention for a period longer than three months can only  be        made on the basis of the report of the Advisory Board."        In  view of these observations, it is quite clear  what  the        scheme of the Act is.  The Act authorises a possible  deten-        tion  of more than three months; the order of  detention  is        therefore  referred  to the Advisory Board, and it  is  only        when the Advisory Board makes its report that the  appropri-        ate  Government fixes the period of detention  under  sub-s.        (1) of s. 11 of the Act.        For  all these reasons, we hold that Sub-s. (1) of s. 11  of        the Act does not contravene any of the provisions of Art. 22        and is accordingly valid.        We  now  proceed to give our reasons with  regard  to  those        points  on  merits which have been urged before  us  by  the        appellant.  The appellant has contended that the grounds  of        detention  communicated to him are all vague, except  ground        No. 2, and that the grounds so communicated did not give him        an  opportunity  of making an  effective  representation,  a        right  guaranteed  to  him under el. (5) of  Art.  22.   The        grounds except ground No. 2 were these:        "1.  That since the last two yars you are in constant  touch        with foreign correspondents in India and representatives  of        foreign  countries to whom you have been  spreading  reports        and  information about conditions in the State of Jammu  and

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      Kashmir  which  are false and calculated  to  prejudice  the        relations of                                    477        India with foreign powers and also to prejudice the security        of the State.        3.    That you are in constant touch with certain persons in        Pakistan  and Pakistani occupied part of Jammu  and  Kashmir        who are hostile to India and you are assisting these persons        in their activities which are prejudicial to the security of        India.        4.That  you are receiving financial assistance from  persons        in Pakistan and Pakistani occupied part of Jammu and Kashmir        for  supporting  and furthering your  aforesaid  prejudicial        activities.        5.That  you are in regular connection with persons in  India        who are engaged in promoting false propaganda against  India        in relation to Kashmir and have been attending their  secret        meetings  for planning action and propaganda in relation  to        Kashmir prejudicial to the security of India.        6.   The Central Government is satisfied that you are likely        to act in a manner prejudicial to the security of India  and        in  a  manner  prejudicial to the relations  of  India  with        foreign powers and with a view to prevent you from so acting        has passed the order for your detention."        The  same document which communicated the grounds of  deten-        tion to the appellant also contained the following statement        in paragraph 7:        " The Central Government is satisfied that it is against the        public interest to disclose to you any facts or  particulars        as  to  dates,  persons and places and the  nature  of  your        activities  and  the assistance received or  otherwise  than        those which have been already mentioned."        The  argument of the appellant is that by refusing  to  dis-        close  any  facts or particulars as to  dates,  persons  and        places,  the  detaining authority has  really  deprived  the        appellant of the valuable right guaranteed to him under  cl.        (5).   This contention of the appellant is concluded by  the        recent  decision  of this Court in Lawrence  Joachim  Joseph        D’Souza v. The State of Bombay (1).  It        (1)  [1956] S.C.R. 382.        478        was  held  therein that the right of the detenu to  be  fur-        nished with facts or particulars was subject to the  limita-        tion  mentioned in cl. (6) and even if the grounds  communi-        cated  were not as precise and specific as might  have  been        desired, the appropriate authority had the right to withhold        such  facts or particulars, the disclosure of which it  con-        sidered to be against the public interest.  Such a privilege        having  been  exercised in the present case,  the  appellant        cannot  be  heard to say, apart from the question  of  mala-        fides, that the grounds did not disclose the necessary facts        or  particulars,  or that in the absence of  such  facts  or        particulars,  he was not in a position to make an  effective        representation.  In The State of Bombay v. Atma Ram  Sridhar        Vaidya(1) this Court has unanimously held that under s. 3 of        the Act, it is the satisfaction of the appropriate authority        which  is  necessary for an order of detention, and  if  the        grounds, on which the appropriate authority has said that it        is so satisfied, have a rational connection with the objects        which are to be prevented from being attained, the  question        of  satisfaction  cannot  be challenged in a  court  of  law        except on the ground of malafides.  It has been further held        by  the majority that cl. (5) of Art. 22 confers two  rights        on the detenu, namely, first, a right to be informed of  the        grounds  on which the order of detention has been made,  and

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      secondly, to be afforded the earliest opportunity to make  a        representation  against the order.  If grounds which have  a        rational  connection with the objects mentioned in s. 3  are        supplied,  the  first condition is complied with.   But  the        right  to  make  a representation implies  that  the  detenu        should  have such information as will enable him to  make  a        representation  and if the grounds supplied are  not  suffi-        cient to enable the detenu to make a representation, he  can        rely  on  the second right.  The second right,  however,  is        again subject to the right of privilege given by cl. (6) and        as has been pointed out in Lawrence D’Souza’s case, (supra),        the  obligation to furnish grounds and the duty to  consider        whether  the  disclosure of any facts  involved  therein  is        against public interest, are both        (i)  [1951] S.C.R. 167.        479        vested in the detaining authority and not in any other.        As in Lawrence D’Souza’s case (supra), it is unnecessary  in        the  present case to consider the theoretical contention  as        to  whether or not Art. 22(6) of the Constitution  overrides        the constitutional right to be furnished grounds under  Art.        22(5)  to  the  extent of denying all  the  particulars  and        leaving the grounds absolutely vague.  We are of the opinion        that in the present case the grounds furnished to the appel-        lant,  though  not as precise and definite as might  be  de-        sired,  gave him a sufficient opportunity of exercising  his        right under cl. (5) of Art. 22 of the Constitution.        With  regard to ground No. 2, the appellant, has  urged  the        following  points.  Ground No. 2 communicated to the  appel-        lant is in these terms:        "  2. That you addressed a Press Conference at New Delhi  on        the  18th  day of February, 1956, which was  attended  by  a        large body of Press Correspondents of foreign countries  and        that you made a speech (copy of contents of which is  hereto        annexed)  containing  various  false  statements  about  the        conditions of the people of Kashmir.  The combined effect of        these statements is prejudicial to the security of India and        to the relations of India with foreign powers.  Extracts  of        such   statements   are  given  below:  (then   follow   the        extracts)."        It  is  argued  (1) that detention on this  ground  is  more        punitive than preventive; (2) that it is not relevant to the        objects  for which the appellant has been detained,  namely,        the security of India and her relations with foreign powers;        and  (3) that there are verbal inaccuracies in reciting  the        ground,  with particular reference to what happened  at  the        Press  Conference on February 18, 1956.  We have  considered        each one of these arguments and are of the view that not one        of  them  has any substance.  Firstly, the ground  no  doubt        relates  to  what happened on February 18, 1956;  that  does        not,  however, mean that the detention of the  appellant  is        punitive  in character.  What the appellant is likely to  do        in future must, to a large extent,        480        be inferred from his past conduct.  Secondly, we think  that        the ground has a rational connection with the objects  which        the  appellant  has  to be prevented  from  attaining.   The        objects of the appellant’s detention are to prevent him from        acting in a manner prejudicial to (1) the security of  India        and  (2)  her  relations with foreign  powers.   Both  these        object,%,  we  think, come within the  ground  in  question.        Thirdly, the verbal inaccuracies relied on by the  appellant        are all so inconsequential in nature that we do not think it        necessary to state them in detail.  By way of an example, it        may be stated that in the extract enclosed with the  ground,

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      there  is a statement to this effect: "it would be no  exag-        geration  to state that were a plebiscite to be  held  there        today, over 90% of Kashmiris would vote against -India etc."        In  his actual statement, however, the appellant  said:  "It        would not be an exaggeration to state that were a plebiscite        to  be  held there today, over 90% of  Kashmirs  would  vote        against  India etc." The only difference between the two  is        that instead of the word ’not’, the word ’no’ has been  used        in  the extract; otherwise, there is no  difference  between        the two statements.  Such verbal differences are not inaccu-        racies at all, and we are unable to accept the contention of        the appellant that the detaining authority did not apply its        mind to the grounds communicated to him.        Lastly, the appellant has raised the question of mala fides.        This  question  has been considered at great length  by  the        learned  Judge of the Punjab High Court who dealt  with  the        petition of appellant.  The appellant referred in his  affi-        davit  to  some of his activities from 1954 onwards  and  to        certain  events  which happened between 1954 and  1956.   He        also  referred  to certain statements alleged to  have  been        made  by  the Prime Minister and the Home Minister,  and  he        averred  that  both of them were annoyed with  him  for  his        activities and therefore the order of detention was not bona        fide.   We are unable to accept this contention.   We  agree        with the learned Judge of the High Court that the activities        of the appellant and the events of 1954 to 1956 referred  to        by the appellant, do not in any way        481        show that the order of detention made against the  appellant        was made for any ulterior purpose or for purposes other than        those mentioned in the detention order.  On the question  of        mala  fldes, it is not a relevant consideration whether  the        activities  of the appellant were liked or disliked  by  the        authorities  concerned.  The only relevant consideration  is        if the order of detention was made for ulterior purposes  or        purposes other than those mentioned in the detention  order.        On  the materials placed before us, we  unhesitatingly  hold        that no mala fides have been established.        These  are our reasons for the order which we passed on  May        24, 1957, dismissing the appeal.        SARKAR  J.-This appeal arises out of an application for  the        issue of a writ of habeas corpus.  In my view the appeal can        be disposed of on one ground, and in this judgment I propose        to deal with that ground alone.        On July 21, 1956, the appellant was taken into custody under        an  order of detention passed against him by the  Government        of  India under the Preventive Detention Act, 1950 (Act,  IV        of  1950).  On July 24, 1956, the appellant was served  with        the grounds on which the order of detention had been  passed        as  required  by the Act.  The appellant thereafter  made  a        representation  against the order which was con  sidered  by        the  Advisory Board, constituted under the Act.   On  August        22, the appellant was served with another order made by  the        Government of India wherein it was stated that the  Advisory        Board bad reported that there was in its opinion, sufficient        cause  for the detention of the appellant.  This order  fur-        ther stated that in view of the report of the Advisory Board        the Government of India confirmed the detention order earli-        er made against the appellant and that the appellant  should        continue  in  detention for a period of 12 months  from  the        date of his detention.  The appellant challenged the legali-        ty of these orders of detention and moved the High Court  of        Punjab for the issue        482        of  an appropriate writ for his release.  The  petition  was

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      dismissed by the High Court.  Hence this appeal.        The  petitioner  challenges the validity of  the  orders  of        detention on the ground that the provision of the Preventive        Detention  Act,  1950, under which they were made  is  ultra        vires the Constitution.  I have come to the conclusion  that        this objection to the Act is sound and that is why I do  not        find it necessary to discuss the other contentions raised by        the appellant.        The    contention    of    the    petitioner    is     based        on Art. 22(4)(a) of the Constitution.  The relevant portion        of the article is set out below:        (4)  No law providing for preventive detention shall  autho-        rise  the  detention of a person for a  longer  period  than        three months unless-        (a)  an  Advisory  Board consisting of persons who  are,  or        have been, or are qualified to be appointed as, Judges of  a        High  Court has reported before the expiration of  the  said        period  of three months that there is in its opinion  suffi-        cient cause for such detention :        Provided that nothing in this sub-clause shall authorise the        detention of any person beyond the maximum period prescribed        by any law made by Parliament under sub-clause (b) of clause        (7); or              (b) such  person  is detained in accordance  with  the        provisions  of any law made by Parliament under  sub-clauses        (a) and (b) of clause (7).         .......................................................        (7)  Parliament may by law prescribe-        (a)  the circumstances under which, and the class or classes        of  cases in which, a person may. be detained for  a  period        longer than three months under any law providing for preven-        tive detention without obtaining the opinion of an’ Advisory        Board in accordance with the provisions of sub-clause (a) of        clause (4);        (b)  the  maximum  period for which any person  may  in  any        class or classes of cases be detained under any law  provid-        ing for preventive detention; ............................                                    483        The  position, therefore, is that unless Parliament  by  law        otherwise  prescribes, the provisions of cl. (4)(a) of  Art.        22 have to be complied with by any law providing for preven-        tive  detention.  Parliament -has passed no law  prescribing        otherwise.  The Preventive Detention Act, 1950, has,  there-        fore,  in  order  to  be  constitutional  to  satisfy   Art.        22(4)(a).  The appellant’s contention is that it does not do        this.   Though  the words used are somewhat obscure,  it  is        fairly clear, as was accepted at the Bar, that the  required        provision  for  the report of the Advisory Board has  to  be        made  in the law authorising preventive detention and it  is        not  by the force of Art. 22(4)(a) itself that  that  report        has to be obtained.        The present Act authorises a maximum period of detention  of        12 months from the date of detention.  It is therefore a law        providing  for  preventive detention and it  authorises  the        detention of a person for a longer period than three months.        It  must hence contain provisions satisfying sub-cl. (a)  of        el.  (4)  of Art. 22 if it is intended to  detain  a  person        under  it for a period longer than three months.  It has  to        provide that if under it detention for a period longer  than        three  months is to be ordered then an Advisory Board,  con-        stituted  as  specified, must report that there  is  in  its        opinion sufficient cause for such detention.  So much is not        in  dispute.  The difficulty is caused by the words  "  such        detention ". The appellant contends that they mean detention        for  a period longer than three months and therefore an  Act

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      authorising preventive detention for more than three  months        has  to  provide that the Advisory Board  must  report  that        there is sufficient cause for detention for a period  longer        than  three months.  The Act in this case does  make  provi-        sions  for  the constitution of the Advisory Board  and  for        submitting  all  cases of detention  irrespective  of  their        periods of detention to it for its opinion as to whether  or        not there is sufficient cause for detention, but it does not        provide  that where it is intended to detain a person for  a        period longer than three months then the Advisory Board must        report that there was sufficient        62        484        cause  for detention for a period longer than three  months.        The  provision  for  the opinion of the  Advisory  Board  is        contained  in s. 10(2) of the Act which is in the  following        terms:            S. 10(2).-The report of the Advisory Board shall specify        in a separate part thereof the opinion of the Advisory Board        as  to  whether  or not there is sufficient  cause  for  the        detention of the person concerned.        If  therefore the appellant is right in his contention  that        the  words  " such detention " mean detention for  a  longer        period  than  three months then the provisions  of  the  Act        authorising  detention  for more than three months  must  be        held  to  be ultra vires.  The question is,  what  do  these        words mean?        As  a  matter of pure construction of the language  used  in        sub-cl. (a) it seems tome that the words " such detention  "        must  mean detention for a longer period than three  months.        The  word  "such" means, of the kind or degree  already  de-        scribed.   Of the meanings of the word" such" given  in  the        Oxford Dictionary this I find to be the only one appropriate        in the present context.  Learned counsel for the  respondent        did not suggest any other meaning.  Now what is the kind  or        degree of detention that is earlier described in the  clause        ? The only kind that 1 find is detention for a longer period        than  three  months.   That being so, I  feel  compelled  to        accept the appellant’s contention.        The learned Solicitor-General opposing the appeal  contended        that  the words "such detention " were capable of two  mean-        ings,  namely,  detention simpliciter and  detention  for  a        period  longer than three months.  He advanced certain  rea-        sons  why  of the two possible constructions the  first  one        should  be  accepted.   I will come to  the  reasons  later.        Before  doing so I wish to state that I am unable  to  agree        that  the words " such detention " are capable of two  mean-        ings.  Clause (4) contemplates a law of preventive detention        but  does not authorise such law.  Such a law is within  the        legislative  competence  of  the Parliament  and  the  State        legislatures  : See Art. 246 of the Constitution, item 9  of        list I and item 3 of list III in the Seventh Schedule        485        to  the Constitution.- Having contemplated such a law,  what        cl. 4 proceeds to do is to lay down that, that law shall not        authorise the detention of a person for a longer period than        three  months  unless the Advisory Board has  reported  that        there is in its opinion sufficient cause for such detention.        It  only  imposes  a limitation on the power  to  pass  laws        authorising preventive detention.  This is what Das J.  said        in A. K. Gopalan v. The State of Madras (1).  He there  said        (p.  324),  it articles 21 and 22 have put a  limit  on  the        power of the State given under Art. 246 read with the legis-        lative  lists".   Therefore  the only object  that  cl.  (4)        purports to deal with is detention for a period longer  than

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      three months under a law of preventive detention the  exist-        ence of which it assumes.  Hence the words " such  detention        "  must necessarily refer to detention for a  period  longer        than  three months.  There is nothing else to which  it  can        refer.  Preventive detention without reference to the period        of it is not in contemplation of cl. (4) at all.  A law  for        preventive detention is mentioned.  The words " such  deten-        tion " cannot possibly refer to that law.  That law may,  no        doubt,  provide for detention for a shorter period but  such        shorter detention is not mentioned in the clause nor  really        in its contemplation at all.  So no question of the words  "        such detention " referring to the shorter detention arises.        But  suppose the learned Solicitor-General was right in  his        contention that the words, in the context they are used, are        capable of referring both to preventive detention simplicit-        er  and  to preventive detention for a  period  longer  than        three months, are there reasons for preferring the first  of        the two alternative constructions ? I am unable to find any.        The  learned Solicitor-General said that if the  words  were        referable only to a detention for a period longer than three        months  then people detained for a shorter period  would  be        deprived  of  the safeguard of the opinion of  the  Advisory        Board and lose the chance of being set free if it  expressed        the  view that there was no sufficient cause for  detention.        That no doubt would be so.  But I find        (i)  [1950] S.C.R. 88.        486        nothing  in  the  language of cl. (4) to show  that  such  a        safeguard  was intended.  If the language does  not  support        such  an intention, then of course this argument must  fail,        however much the court may like the safeguard to be provided        in  all cases of detention.  If it was the intention of  the        Constitution  to provide such a safeguard it would not  have        required  that  the report of the Advisory Board  should  be        made  before the expiry of the three months.  That  is  what        Fazl Ali, J., said in Gopalan’s case (1) at page 171 :        "  Under Art. 22 (4) (a), the Advisory Board has  to  submit        its report before the expiry of three months and may  there-        fore  do so on the eighty-ninth day.  It would  be  somewhat        farcical to provide, that after a man has been detained  for        eighty-nine  days, an advisory board is to say  whether  his        intial detention was justified.  "        As  the Constitution could not have contemplated the  situa-        tion  mentioned by Fazl Ali, J., it could not have  intended        that  all cases of detention irrespective of  their  periods        must  also be placed before the Advisory Board.  It  follows        that it did not mean to provide the safeguard referred to by        the  learned  Solicitor-General.   In fact,  all  the  other        learned  Judges  who  heard Gopalan’s  case  (1),  excepting        Patanjali  Sastri, J., expressed the same view.  I  set  out        below what they said:         Kania, C.J., (page 118 of the Report):        "Reading article 22 clauses (4) and (7) together it  appears        to be implied that preventive detention for less than  three        months,  without an advisory board, is permitted  under  the        Chapter on Fundamental Rights, provided such legislation  is        within  the legislative competence of the Parliament or  the        State Legislature, as the case may be.  "        Mahajan, J., (p. 228):        " If the intention of the Constitution was that a, law  made        on  the subject of preventive detention had to be tested  on        the  touchstone  of reasonableness, then it would  not  have        troubled itself by expressly making provision in article  22        about  the precise scope of the limitation subject to  which        such a law could be made

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      (1)  [1950] S.C.R. 88.        487        and  by mentioning the procedure that the law  dealing  with        that  subject  had to provide.  Some of  the  provisions  of        article 22 would then have been redundant, for instance, the        provision  that  no  detention can last  longer  that  three        months  without the necessity of such detention being  exam-        ined by an advisory board.        Again at p. 237:        " Clause (4) of article 22 enjoins.................. that no        law can provide for preventive detention for a longer period        than three months without reference to an advisory board.  "        Mukherjea, J., (p. 281):        "  Preventive detention can be provided for by law for  rea-        sons  connected with six different matters specified in  the        relevant  items in the legislative lists, and  whatever  the        reasons might be, there is a provision contained in  article        22  (4)  (a) which lays down that detention  for  more  than        three months could not be permitted except with the sanction        of the advisory board.  "        Das, J., (p. 326):               "In short, clause (4) of article 22 provides a  limi-        tation on the legislative power as to the period of prevent-        ive  detention.   Apart from imposing a  limitation  on  the        legislative power, clause (4) also prescribes a procedure of        detention for a period longer than three months by providing        for an advisory board."        The  learned Solicitor-General then contended that  Art.  22        dealt  both  with preventive detention and  other  kinds  of        detention.  Thus clauses (1) & (2) dealt with other kinds of        detention while clause (4) and the remaining clauses of  the        article  dealt with preventive detention.  Clause  (3)  said        that nothing in clauses (1) and (2) shall apply to a  person        detained  under any law providing for preventive  detention.        The  learned  Solicitor-General contended that the  words  "        such  detention  " in clause (4) were intended to  refer  to        preventive  detention without reference to its  duration  as        distinguished from the other kinds of detention referred  to        in clauses (1) and (2).  He sought to reinforce his argument        by contending that preventive detention        488        for  a  period longer than three months was not  a  separate        kind of preventive detention and therefore the words "  such        detention  " referred to the only kind of preventive  deten-        tion mentioned in the article, namely, preventive  detention        simpliciter  and  without  any reference to  the  period  of        detention.  I am again unable to agree.  It is true that the        detention  contemplated in the words " such detention  "  is        preventive  detention.   Clauses (4) to (7) of  the  article        deal with preventive detention alone and with no other  kind        of  detention.   Therefore, in these clauses  there  was  no        necessity  of  distinguishing preventive detention  as  such        from  other kinds of detention and of using the  word  "such        for marking this distinction.  So read the words such deten-        tion " really mean such preventive detention.  The  question        then  arises, which preventive detention?  The  answer  must        be,  one  variety of preventive detention  as  distinguished        from other varieties.        It  is  also  true that preventive detention  for  a  period        longer than three months is none the less preventive  deten-        tion and is not another kind of detention.  At the same time        preventive  detention for a period longer than three  months        is not the same thing as preventive detention for a  shorter        period.  It is quite conceivable that with regard to differ-        ent periods of detention permissible under a law relating to

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      preventive  detention  different  provisions  may  be  made.        Preventive  detention certainly interferes with  a  person’s        liberty.   It is an inroad on his freedom.  It may  be  that        the makers of the Constitution having given the legislatures        power  to  enact  laws providing  for  preventive  detention        interfering with a person’s liberty did not think it fit  to        provide  any limitation on such power when  such  detention,        was to be for a relatively shorter period but thought it fit        to restrict the power in the case of detention for what they        conceived  to be a long period.  If such was the  intention,        then the makers of the’ Constitution would obviously make  a        distinction  between  preventive  detention  for  a  shorter        period and preventive detention for a longer period.  To say        that there is no distinction between these kinds of  preven-        tive detention is to assume that the makers of the Constitu-        tion, never        490        its  opinion sufficient cause existed for a detention for  a        longer period or not, the report, when made, must necessari-        ly be taken to have expressed such an opinion and the  arti-        cle therefore must be deemed have been complied with.   This        argument,  of course., assumes that the words " such  deten-        tion " mean detention for a period longer than three months.        It  assumes that the article requires that where the law  of        preventive  detention  authorises a detention for  a  longer        period it is necessary to obtain the opinion of the Advisory        Board that there is sufficient cause for detention for  such        period.   Now there is nothing in the article to prevent  an        Act  authorising  preventive  detention  providing  for  the        opinion  of  the Advisory Board being obtained as  to  there        being  sufficient  cause for the detention in  any  case  of        detention.   Such a provision in a law of preventive  deten-        tion  would  be perfectly legal.  The present  Act  in  fact        contains  such  a provision.  Therefore, it cannot  be  said        that whenever a law provides for an opinion of the  Advisory        Board being obtained as to the sufficiency of the cause  for        detention, the opinion in view of Art. 22(4)(a)  necessarily        is  as  to the sufficiency of the cause of detention  for  a        period  longer  than  three months.   Besides,  if,  as  the        present  argument assumes, it is obligatory in a law  autho-        rising  preventive detention for a period longer than  three        months to provide for a, report of the Advisory Board statin        expressly its opinion as to the sufficiency of the cause for        the  detention  for  the period mentioned, I  am  unable  to        appreciate  that  such  an obligation is  satisfied  by  not        making the required provision but by showing that by  neces-        sary implication the required opinion is deemed to have been        given, even though in fact it may not have been given.   The        question  is  not what the report is to be  seemed  to  have        stated  nor  even what it has in fact stated, but  what  the        statute  should  provide.  If the statute has not  made  the        obligatory provision it must be held to be bad.  It would be        a  strange  argument  to say that it must  be  good  because        though it did not contain the required provision it must  in        view of the Constitution be deemed to contain it,        489        intended to make the distinction.  For such an assumption  I        find  no justification.  Indeed, what I have read  from  the        judgment  of this Court in Gopalan’s case, would  show  that        the distinction between preventive detention simpliciter and        preventive  detention for a period longer than three  months        was in the mind of the makers of the Constitution, for it is        there  said that no reference to the Advisory Board is  con-        templated by the Constitution excepting in a case of  deten-        tion for a period longer than three months.

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      The present argument of the learned Solicitor-General is  on        the  basis  that one of the possible  constructions  of  the        words  " such detention " is detention for a  period  longer        than  three  months.  That being so, and the word "  such  "        meaning  in the ordinary English language, of the  kind  al-        ready  described,  even if two kinds of  detention,  namely,        preventive  detention  simpliciter and detention  for  other        reasons,  have  been earlier mentioned, the  kind  mentioned        nearest to the word "such" must be the kind intended by  it.        Therefore  again the words " such detention " must be  taken        as  referring  to detention for a period longer  than  three        months.   Indeed cl. (4) and the other clauses have  nothing        to  do with other kinds of detention than preventive  deten-        tion.   The  word " such " cannot therefore seek to  make  a        distinction  from  a thing occurring in  a  wholly  separate        provision of the article, namely, clauses (1) and (2).  That        being so, I am unable to agree that the words " such  deten-        tion " refer to preventive detention simpliciter.        I now turn to another question that arose.  It was said that        Art.  22  (4)  (a) applies only to a  law  which  authorises        detention for more than three months; that it is such a  law        alone  which  must provide for the opinion of  the  Advisory        Board  being  obtained.  It was contended  that,  therefore,        whenever a law authorising preventive detention provides for        a  reference to the Advisory Board, it necessarily  provides        for  a report as to whether there is sufficient cause for  a        detention  for a period longer than three months,  and  that        being so, no matter whether any provision had been made that        the Advisory Board must state whether in        491        It was then said that as it is not for the Advisory Board to        decide the period of detention to be ordered there can be no        point  in  providing that its opinion,  whether  there  were        sufficient  cause  for detention for a  period  longer  than        three  months  or not, should be obtained.  It seems  to  me        that whether there is any point in obtaining such opinion or        not it is wholly irrelevant to enquire.  If the language  of        the  Constitution requires such opinion to be  obtained,  it        has to be obtained.  I have stated that the language indubi-        tably  requires such opinion to be obtained.   The  language        cannot  have  a different meaning  because,  otherwise,  the        provision would be without any point at all.  Furthermore, I        am  unable to see why if the Government fixes the period  of        detention,  it is unnecessary where the period is to  exceed        three  months to provide for the opinion of  an  independent        body being obtained as to whether there is sufficient  cause        for  detention for that period.  In my view it is  eminently        reasonable to make such a provision.  When a person’s liber-        ty  is to be curtailed for a longer period, a safeguard  may        be  considered necessary which it may not be when  the  cur-        tailment contemplated is for a comparatively shorter period.        I will repeat that the reasonableness of such a provision is        implicit in what I have read from the judgment in  Gopalan’s        case  (1).  It is said there that it is only in the case  of        detention  for  a period longer than three months  that  the        Constitution requires a provision that the Advisory  Board’s        opinion  should be obtained.  This view is  clearly  brought        out by Fazl Ali, J., when he said in that case at page 171:        "Prima facie, it is a serious matter to detain a person  for        a  long period (more than three months) without any  enquiry        or trial.  But article 22(4)(a) provides that such detention        may  be ordered on the report of the advisory board.   Since        the  report must be directly connected with the  object  for        which it is required, the safeguard provided by the article,        viz.,  calling for a report from the advisory  board,  loses

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      its value, if the advisory board is not to apply its mind        (1)  [1950] S.C.R. 88.        63        492        to the vital question before the Government, namely, whether        prolonged  detention (detention for more than three  months)        is justified or not."        I  have so long discussed the question whether the  words  "        such  detention " mean preventive detention  simpliciter  or        preventive  detention for a period longer than three  months        as  a  question of construction with. out reference  to  the        authorities.   In fact, there is no conclusive authority  on        the  point,  but some have been referred to.   These  I  now        proceed to consider.        The first case referred to is Gopalan’s case (1).  That  was        also  a  case concerned with the issue of a writ  of  habeas        corpus,  and  it turned on the very Act that is  before  the        Court  now, as it stood in 1950.  At the date the order  for        detention  in  that case was made the Act provided  that  in        certain  class  of cases a person might be  detained  for  a        period longer than three months without obtaining the  opin-        ion of the Advisory Board in accordance with the  provisions        of  Art.  22(4)(a).  Such a provision is sanctioned  by  el.        (7)(a)  of  that article.  The order for detention  made  in        that  case  was of a kind where reference  to  the  Advisory        Board was not obligatory.  That being so, it was not  neces-        sary for the court in that case to decide the precise  mean-        ing  of  the words " such detention ". None the  less,  how.        ever,  three of the learned judges indicated their views  on        the  question and the other three do not seem to have  dealt        with it.  Kania, C. J., expressed the opinion that the words        "such detention" meant detention beyond the period of  three        months.   Referring  to the proviso to  sub-cl.  (4)(a),  he        stated (p. 117):        "  The  proviso  to this clause further  enjoins  that  even        though  the advisory board may be of the opinion that  there        was  sufficient  cause for such detention,  i.e.,  detention        beyond  the period of three months, still the  detention  is        not  to  be  permitted beyond the maximum  period,  if  any,        prescribed by Parliament under article 22(7)(b)."        The  learned  Chief Justice therefore was of the  view  that        under Art. 22(4)(a) the Advisory Board had to be        (1)  [1950] S.C.R. 88.                                    493        of the opinion that there was sufficient cause for detention        beyond  the  period of three months.  Mr. Justice  Fazl  Ali        expressed himself more clearly on the subject and said  (pp.        170-171):        " In connection with the first point, the question arises as        to the exact meaning of the words " such detention "  occur-        ring in the end of clause (4)(a).  Two alternative interpre-        tations were put forward: (1) it   such  detention  "   mans        preventive detention; (2)     ".such detention" means deten-        tion  for a period longer than three months.  If  the  first        interpretation is correct then the function of the  advisory        board  would  be to go into the merits of the case  of  each        person and simply report whether there was sufficient  cause        for  his detention.  According to the other  interpretation,        the function of the advisory board will to be report to  the        Government whether there is sufficient cause for the  person        being detained for more than three months.  On the whole,  I        am  inclined  to  agree  with  the  second   interpretation.        Prima,’ facie, it is a serious matter to detain a person for        a longer period (more than three months) without any enquiry        or trial.  But article 22(4)(a) provides that such detention

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      may  be ordered on the report of the advisory board.   Since        the  report must be directly connected with the  object  for        which it is required, the safeguard provided by the article,        viz.,  calling for a report from the advisory  board,  loses        its value, if the advisory board is not to apply its mind to        the  vital  question before the government,  namely  whether        prolonged  detention (detention for more than three  months)        is  justified or not.  Under article 22(4)(a), the  advisory        board  has to submit its report before the expiry  of  three        months and may therefore do so on the eighty-ninth day.   It        would be somewhat farcical to provide, that after a man  has        been detained for eighty-nine days, an advisory board is  to        say  whether  his initial detention was justified.   On  the        other  hand, the determination of the question whether  pro-        longed  detention (detention for more than three months)  is        justified must necessarily involve the determination of  the        question whether the detention was justified at all, an such        an interpretation only        494        can  give real meaning and effectiveness to  the  provision.        The  provision being in the nature of a protection or  safe-        guard,  I  must naturally lean  towards  the  interpretation        which  is  favourable to the subject and which  is  also  in        accord with the object in view."        Patanjali  Sastri, J., preferred the other view but he  rea-        lised that the view taken by Fazl Ali, J., was also a possi-        ble  view.  He expressed himself in these words on the  sub-        ject (at page 210):        "I  am inclined to think that the words "such detention"  in        sub-clause  (a) refer back to the preventive detention  men-        tioned  in  clause  (4) and not to detention  for  a  longer        period than three months.  An advisory board, composed as it        has to be of Judges or lawyers-, would hardly be in a  posi-        tion to judge how long a person under preventive  detention,        say, for reasons connected with defence, should be detained.        That  must  be a matter for the executive  authorities,  the        Department  of  Defence,  to determine, as  they  alone  are        responsible  for  the defence of the country  and  have  the        necessary data for taking a decision on the point.  All that        an advisory board can reasonably be asked to do, as a  safe-        guard  against the misuse of the power, is to judge  whether        the  detention is justified and not arbitrary or mala  fide.        The  fact  that the advisory board is required to  make  its        report before the expiry of three months and so could submit        it only a day or two earlier cannot legitimately lead to  an        inference that the board was solely concerned with the issue        whether  or  not the detention should continue  beyond  that        period.  Before any such tribunal could send in its report a        reasonable  time  must  elapse, as the grounds  have  to  be        communicated  to  the persons detained, he has to  make  his        representation  to the detaining authority which has got  to        be  placed before the board through the appropriate  depart-        mental  channel.  Each of these steps may, in the course  of        official  routine, take some time, and three months’  period        might  well have been thought a reasonable period  to  allow        before the board could be required to submit its report,        495        Assuming,  however,  that  the words  "such  detention"  had        reference  to the period of detention, there is no  apparent        reason  for confining the enquiry by the advisory  board  to        the  sole  issue  of duration beyond  three  months  without        reference  to the question as to whether the  detention  was        justified or not.  Indeed, it is difficult to conceive how a        tribunal  could  fairly  judge whether a  person  should  be        detained for more than three months without at the same time

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      considering  whether  there  was sufficient  cause  for  the        detention  at all.  I am of opinion that the advisory  board        referred  to in clause (4) is the machinery devised  by  the        Constitution  for reviewing orders for preventive  detention        in  certain cases on a consideration of the  representations        made  by  the persons detained.  This is the view  on  which        Parliament  has  proceeded in enacting the impugned  Act  as        will be seen from sections 9 and 10 thereof, and I think  it        is the correct view.  It follows that the petitioner  cannot        claim to have his case judged by any other impartial  tribu-        nal by virtue of article 21 or otherwise."        For  the reasons earlier stated I prefer to accept the  view        expressed by Mr. Justice Fazl Ali.        The  next case referred to is Makhan Singh Tarsikka  v.  The        State of Punjab (1).  This was also a case for the issue  of        a writ of habeas corpus for the release of a person detained        under  the same Act as it stood in July 1951.  In this  case        the first order for detention, that is to say the order made        before the reference to the Advisory Board itself fixed  the        period  of  detention.  It was held that  that  was  illegal        because  the  Act made it plain that it is  only  after  the        Advisory  Board to which the case has been referred  reports        that  the  detention  is justified,  the  Government  should        determine  what  the period of detention should be  and  not        before.   The fixing of the period of detention in the  ini-        tial order in, the present case was, therefore, contrary  to        the  scheme  of the Act and cannot be  supported.   On  this        ground  the  petition for the issue of a writ  was  allowed.        This case was obviously not        (1)  [1952] S.C.R. 368.        496        concerned  with  Art. 22(4)(a) and does not  in  any  manner        decide  the question before me.  I am, therefore, unable  to        find any assistance from it.        Lastly, reference was made to Dattatreya Moreshwar Pangarkar        v. The State of Bombay(1).  That again was concerned with an        application  for  the issue of a writ of habeas  corpus  and        also turned on the present Preventive Detention Act.  There,        after the initial order for detention which did not  mention        any period, the case had been referred to the Advisory Board        which reported that there was sufficient cause for detention        and  then  the Government issued an order  stating  that  it        confirmed  the  detention order issued against  the  detenu.        The  question  was whether this confirmatory  order  was  in        terms of s. II (1)(a) of the same Act as in this case as  it        stood in 1952.  That section provided that where the adviso-        ry  board had reported that there was sufficient  cause  for        detention,  the Government might continue the detention  for        such  period as it .thought fit.  It was contended that  the        section required the period of detention to be mentioned  in        the confirmatory order and as the confirmatory order did not        specify the period it was bad and did not justify the deten-        tion.  It was held that such omission did not invalidate the        order.   Again it will be seen that this case was  not  con-        cerned  with  Art. 22(4)(a).  We were  referred  to  certain        observations  of Mr. Justice Mukherjea in this case in  sup-        port of the proposition that the words " such detention " in        Art.  22(4)(a) meant detention simpliciter.  These  observa-        tions are set out below (pp. 626-27):        "   It is now settled by a pronouncement of this court  that        not only it is not necessary for the detaining authority  to        mention  the period of detention when passing  the  original        order  under section 3(1) of the Preventive  Detention  Act,        but  that the’ order would be bad and illegal if any  period        is  specified, as it might prejudice the case of the  detenu

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      when it goes up for consideration before the Advisory Board.        The Advisory Board again has got to express its opinion        (1)  (1952] S.C.R. 612.                                    497        only  on the point as to whether there is  sufficient  cause        for detention of the person concerned.  It is neither called        upon  nor  is  it competent to say  anything  regarding  the        period  for which such person should be detained.  Once  the        Advisory  Board expresses its view that there is  sufficient        cause  for detention at the date when it makes  its  report,        what action is to be taken subsequently is left entirely  to        the appropriate Government and it can under section 11(1) of        the Act confirm the detention order and continue the  deten-        tion  of the person concerned for such period as  it  thinks        fit."        It  was sought to be argued that Mukherjea, J., intended  to        say that all that the Advisory Board was required to do  was        to  express its opinion on the question of justification  of        the detention simpliciter.  This may be so, but Mr.  Justice        Mukherjea was construing the Preventive Detention Act  which        admittedly made that provision.  He was not saying that Art.        22(4)(a) also said the same thing.  Indeed what I have  read        earlier  from his judgment in Gopalan’s case (1) would  show        that his view about Art. 22(4)(a) was otherwise.  Again  the        learned  Judge was not concerned with the  question  whether        the  relevant provision of the Preventive Detention Act  was        ultra vires the Constitution.  Furthermore, for the  reasons        earlier  stated,  the fact that the Government  decides  the        term of detention does not indicate that it is not  intended        that when detention for a period longer than three months is        contemplated,  it is not necessary to obtain the opinion  of        the Advisory Board as to whether there was sufficient  cause        for  detention for the period.  Reference was also  made  to        the  following portion of the judgment of Mahajan,  J.  (2),        occurring at p. 637 of the report:        "Under the Constitution, the detention of a person under any        law  providing  for  preventive detention cannot  be  for  a        period  of more than three months unless the Advisory  Board        is  of  the opinion that there is sufficient cause  for  the        detention of the person concerned."        (1)  [1950] S.C.R. 88,        (2) [1952] S.C.R. 612.        498        It  was suggested that the learned Judge indicated that  all        that was necessary was for the law to provide for an opinion        of the Advisory Board as to the justification of the  deten-        tion  itself  irrespective  of whether it was to  be  for  a        period  longer  than three months.  It is  clear  that  here        Mahajan, J., was not considering the meaning of the words  "        such detention".  He was not concerned with deciding whether        these  words meant detention simpliciter or detention for  a        period  longer  than  three  months.   His  observations  in        Gopalan’s  case(1) that I have earlier set out, would in  my        view indicate that the Advisory Board is required to give an        opinion  as  to whether detention for a longer  period  than        three  months is justified or not.  It cannot  therefore  be        said  that Mahajan, J., held the view that the words "  such        detention  " in Art. 22(4)(a) mean simply preventive  deten-        tion.        I  therefore  come to the conclusion that there  is  nothing        either  in Makhan Singh’s case (2) or  Dattatreya  Moreshwar        Paugarkar’s  case  (3) which takes a view contrary  to  that        which I have taken.,        In the result I would allow the appeal.        (1)  [195o] S.C.R. 88.

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      (3)  [1952] S.C.R. 612                           (2) [1952] S.C.R. 368.        499