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PETITIONER: RAM JETHMALANI, ETC

       Vs.

RESPONDENT: UNION OF INDIA, ETC.

DATE OF JUDGMENT19/06/1984

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J)

CITATION:  1984 SCR  (3) 926        1984 SCC  (3) 696  1984 SCALE  (1)846

ACT:      Constitution  of   India  1950,  Article  32.  National Security Act,  1980, Section  3 and  The Supreme Court Rules 1966, Order II rule 6 and order VII rule 4 (5).      Writ petitions  assailing  detention  of  detenu  under National Security  Act.-Vacation  Judge  hearing  petitions- Important questions touching security of nation and personal liberty involved-Larger Bench hearing matter-Necessity of.

HEADNOTE:      The petitioners  in their  writ petitions to this Court assailed the  detention of  a member  of the  Sikh Community under the National Security Act, 1980. ^      HELD:  1.   These  are   not  ordinary  criminal  cases involving a  few individuals  coming from  a small locality. These are extraordinary cases involving serious questions of great public  importance touching the security of the nation as well  as personal  liberty of  a sizeable  section of the community. These  cases have  to be  dealt with  differently from the usual cases which come up before this Court.[927 C- D]      2. In  handling these cases the highest judicial talent and statesmanship  are needed  and hence  these cases cannot just be  rejected reserving  liberty to  the  applicants  to approach a Judicial Magistrate, a Sessions Judge or even the High Court.  Every step taken in these cases should serve as a  healing  touch  bringing  solace  to  all  concerned  and lessening by  some degree  the pain  and  suffering  through which the  country and  its peace-loving  people have passed and are passing. These proceedings should have the effect of assuaging the outraged feelings of many who till now may not be aware of what has actually happened. [927 F-G]      3. The questions involved are too large and complex for the shoulders  of a  Single Judge  to bear.  These and other cases of  like nature  should be  heard by  at  least  seven learned Judges  of this  Court whose  unquestioned  judicial authority, erudition and acumen would be of great assistance in the  restoration of  peace in one of the States known for valour, devotion,  spirit of  sacrifice and  sense  of  duty towards the  country of  the people  residing in it. [927 H; 928 A]      4. Even  if allegations of serious offences against the

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State may  be forthcoming  against the arrested persons, the Court may  still consider whether it is not possible enlarge at least  some of  them, who  may be in a repentant mood, on bail to  facilitate early  restoration of  normalcy  in  the State. There  may be many other things which may be done and they are within the domain of the Judges, who may hear these cases. If  this Court in the end can succeed in establishing peace and  harmony in  the country,  it would  be its finest hour. [928G-H; 929 A] (Cases referred to Larger Bench.) 927

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  (Criminal)  Nos. 920 and 934 of 1984.       (Under article 32 of the Constitution of India)      P.R. Mridul,  R.D. Agarwala  and R.N.  Poddar  for  the Applicant/Respondent.      Miss  Rani   Jethmalani,  G.S.  Cheema  and  Shailendra Bhardwaj for the opp. side/ petitioners.      The order of the Court was delivered by      VENKATARAMIAH, J.  These cases  are just two in number. There may  be many other cases of this nature which have not yet reached  this Court  but may be filed shortly. These are not ordinary  criminal cases  involving  a  few  individuals coming from  a small locality. These are extraordinary cases involving  serious  questions  of  great  public  importance touching the  security of  the nation  as well  as  personal liberty of a sizeable section of the community, many of whom may have  been made  to believe  by a  dominant  section  of society, may be wrongly, that what they were doing was right and for  that reason  may not  have been  free agents. Hence these cases have to be dealt with differently from the usual cases which come up before this Court.      First a  word  of  caution.  In  the  course  of  these proceedings every  word uttered  on either  side of  the Bar should be an weighed before it is used. There is no room for heat and  passion; logic  and reason  alone should  rule the debates. There  should be  an all  round sympathy in dealing with the  complex issues  which may arise for determination. In handling  these cases  the highest  judicial  talent  and statesmanship are  needed and  hence these cases cannot just be rejected  reserving liberty to the applicants to approach a Judicial  Magistrate, a  Sessions Judge  or even  the High Court. Every  step taken  in these  cases should  serve as a healing touch bringing solace to all concerned and lessening by some  degree the  pain and  suffering through  which  the country and  its peace-loving  people have  passed  and  are passing.  These   proceedings  should  have  the  effect  of assuaging the outraged feelings of many who till now may not be aware  of what  has actually happened. Any amount of time spent by the highest Court of this land on these cases would not go in vain. There is no duty more sacred than this.      1. however,  feel that  the questions  involved are too large and  complex for  the shoulders  of a  Single Judge to bear. It  is my  humble view  that these  and other cases of like nature should be heard by at least seven learned Judges of  this   Court  whose   unquestioned  judicial  authority, erudition and acumen would be of great 928 assistance in  the restoration  of peace in one of our great States known  for the  valour, the  devotion, the  spirit of sacrifice and  the sense  of duty towards the country of the people residing in it.

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    May I  say that  there can  be  no  compromise  on  the following matters, namely, unity and integrity of India, the secular and democratic form of the Indian Government and the supremacy of  the Indian  Constitution ? They must be upheld in any  event. There  cannot be any doubt about the right of the established  Government to run the administration of the country. We  should remember, that India is no doubt a Union of  States,   but  the  boundary,  of  the  States  are  not unalterable. There is only one citizenship in India and that all of  us-Indian citizens-belong  to the whole of India and the whole of India belongs to all of us. Man-made boundaries cannot  divide  us.  Language,  religion,  caste  and  other factors cannot  be allowed  to drive  a  wedge  between  one section and  another. It  is  good  to  remember  here  what Abraham Lincoln  said though  in another context in 1858, ’A house divided  against itself  cannot stand’.  The issue now before the  Court involves  more than  the future  of India. Again to  quote Lincoln  from what  he said  in the American context:           "It presents  to the  whole  family  of  man,  the      question  whether   a  constitutional   republic  or  a      democracy-a government  of  the  people,  by  the  same      people-can   or   cannot   maintain   its   territorial      integrity, against its own domestic foes".      The above  words appear  to be  relevant in the present Indian context too.      The unfolding  of facts  in these  cases may make those who may  have erred to realise where they have erred and how they have  erred. It may help the Court to suggest solutions for rectifying  the undesirable effects of such errors. Even if allegations  of serious offences against the State may be forthcoming against  the arrested  persons,  the  Court  may still consider  whether it  is not  possible to  enlarge  at least some  of them, who may be in a repentant mood, on bail to facilitate  early restoration  of normalcy  in the State. The Court  may at  some  stage  have  occasion  to  consider whether it 929 should recommend  to Parliament  to pass an Act of Indemnity which may  be an  act of  great sagacity,  thus drawing  the curtain on  this unhappy  page of  the history of the Indian Republic. These  may be  many other things which may be done and they  are within  the domain  of my learned Brothers who may hear  these cases.  If this Court in the end can succeed in establishing  peace and  harmony in the country, it would be its finest hour.      I, therefore,  refer these cases to a larger Bench with the fond hope that our country would have no occasion in the future to face a similar situation.      These papers may be placed before the Hon’ble the Chief Justice of India for appropriate directions. N.V.K.                       Cases referred to larger bench. 930