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PETITIONER: RAM SINGH

       Vs.

RESPONDENT: THE STATE OF DELHI AND ANOTHERBALRAJ KHANNAv.THE STATE OF DE

DATE OF JUDGMENT: 06/04/1951

BENCH: SASTRI, M. PATANJALI BENCH: SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ) MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BOSE, VIVIAN

CITATION:  1951 AIR  270            1951 SCR  451  CITATOR INFO :  RF         1954 SC  92  (39)  R          1958 SC 578  (155)  E          1958 SC 731  (17)  R          1960 SC 554  (20)  RF         1961 SC 232  (55)  R          1962 SC1006  (79)  R          1963 SC1047  (19)  RF         1967 SC   1  (42,138)  RF         1967 SC1643  (274)  O          1970 SC 564  (53)  RF         1973 SC1461  (1525)  E&R        1978 SC 597  (52,41,66,ETC.)  E          1980 SC 898  (52,49)

ACT:     Constitution   of  India,  Arts.  19  (1)  &   (2),   22 (5)--Freedom  of  speech--Preventive  detention  to  prevent speeches with a view to maintain public order-- Omission  to state  objectionable passages in grounds  supplied--Legality of detention.

HEADNOTE:     The District Magistrate of Delhi, "being satisfied  that with  a view to the maintenance of public order in Delhi  it is  necessary to do so" ordered the detention of  the  peti- tioners  under s. 3 of the Preventive Detention  Act,  1950. The  grounds  of detention communicated to  the  petitioners were "that your speeches generally in the past and  particu- larly on the 13th and 15th August, 1950, at public  meetings in  Delhi  has been such as to excite  disaffection  between Hindus and Mussalmans and thereby prejudice the  maintenance 01  public order in Delhi and that in order to  prevent  you from  making such speeches it is necessary to make the  said order."  The petitioners contended that under the  Constitu- tion  the maintenance of public order was not a purpose  for which restriction can be imposed on the freedom of 452 speech guaranteed by Art. 19 (1) and that the grounds commu- nicated were too vague and indefinite to enable them to make

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a  representation and the provisions of Art. 22 (s)  of  the Constitution were not complied with, and their detention was therefore ultra vires and illegal:     Held  by the Full Court (KANIA C.J.,  PATANJALI  SASTRI, MEHR  CHAND  MAHAJAN,  S.R. DAs and VIVIAN  BOSE  JJ.)  that though  personal  liberty is sufficiently  comprehensive  to include  the  freedoms  enumerated in Art. 19  (1)  and  its deprivation  would result in the extinction of  those  free- doms, the Constitution has treated these civil liberties  as distinct fundamental rights and made separate provisions  in Arts.  19,  21 and 22 as to the limitations  and  conditions subject to which alone they could be taken away or abridged. Consequently,  even though a law which restricts freedom  of speech  and expression which is not directed solely  against the  undermining of the security of the State or  its  over- throw but is concerned generally in the interests of  public order may not fall within the reservation of cl. (2) of Art. 19 and may therefore be void, an order of preventive  deten- tion cannot be held to be invalid merely because the  deten- tion is made with a view to prevent the making of  speeches. prejudicial  to the maintenance of public order.  The  deci- sions in Brij Bhushan and Another v. The State of Delhi  (1) and Romesh Thappar v. The State of Madras(2) are not  incon- sistent with the decision  in  A.K. Gopalan v. The State(3). Held  per  KANIA. C.J., PATANJALI SASTRI and  S.R.  DAS  JJ. (MEHR  CHAND MAHAJAN and BOSE JJ. dissenting)--As  the  time and  place at which the speeches were alleged to  have  been made and their general nature and effect,. namely, that they were  such  as  to excite disaffection  between  Hindus  and Muslims  were also stated in the grounds communicated,  they were  not too vague or indefinite to enable the  petitioners to make an effective representation and the detention cannot be held to be illegal on the ground that Art. 22 (8) was not complied with.  Per CHAND MAHAJAN and BOSE JJ.  (contra)--In the  absence  of  any indication in the grounds  as  to  the nature of the words used by the petitioners in their speech- es, from which an inference has been drawn against them, the petitioners would not be able fully to exercise their funda- mental  right of making a representation, and as there  were no  such  indications in the grounds supplied, there  was  a non-compliance  with the provisions of el. (5) Art.  22  and the detention was illegal. The State of Bombay v. Alma Ram Sridhar Vaidya(4) applied.

JUDGMENT: ORIGINAL JURISDICTION: Petitions Nos. 21, 22 and 44 of 1951.  (1) [1950] S.C.R. 605.        (3) [1950] S.C.R. 88.  (2) [1950] S.C.R. 594,        (4) [1950] S.C.R. 167. 453     Applications under  Art. 32 of the  Constitution praying for the issue of writs in the nature of habeas corpus.     Hardayal Hardy for the petitioners in Petitions Nos.  21 and 22 Gopal  Singh  for the petitioner in Petition  No.  44. S.M. Sikri for the respondents.     1951.   April 6.  The following judgments   were  deliv- ered. PATANJALI  SASTRI J.--These three petitions have  been  pre- sented to this Court under article 32 of the Constitution of India praying for the issue of writs in the nature of habeas corpus  for release of the petitioners who are  respectively the   President,  VicePresident and Secretary of  the  Hindu Mahasabha of the Delhi State.

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   The  petitioners were arrested on 22nd August, 1950,  by order  of  the District Magistrate, Delhi, made  under  sub- section  (2)  read with clause (a) sub-clause  (i)  of  sub- section  (1) of section 3 of the Preventive  Detention  Act, 1950 (hereinafter referred to as the Act). The order ran  as follows:     "Whereas I, Rameshwar Dayal, District Magistrate, Delhi, am  satisfied that with a view to the maintenance of  public order in Delhi it is necessary to do so, I, Rameshwar Dayal, District  Magistrate,  Delhi,  hereby  order  the  detention of  ............  under sub-section (2) of section 3 (1) (a) (ii)  of the Preventive Detention Act.  Given under my  seal and signature".     The grounds of detention communicated to the petitioners were  in identical terms, save as to the dates on which  the speeches were said to have been made, and read thus:     "In  pursuance of section 7 of the Preventive  Detention Act  you are hereby informed that the grounds on  which  the detention  order  dated  22nd August, 1950,  has  been  made against you are that your speeches generally in the past and particularly on  ......  August, 454 1950, at public meetings in Delhi has been such as to excite disaffection  between Hindus and Muslims and thereby  preju- dice  the maintenance of public order in Delhi and  that  in order to prevent you from making such speeches it is  neces- sary to make the said order".     The  petitioners applied to the High Court at Simla  for similar  relief under article 226 of the  Constitution,  but the  petitions were dismissed. It appears to have been  con- tended  before the learned Judges (Khosla and  Falshaw  JJ.) who  heard those petitions that although this Court held  in A.K. Gopalan v. The State of Madras (1) that the  provisions of  section  3  of the Act were  constitutional  and  valid, detention  under  that section was ultra vires  and  illegal where, as here, it was based on the ground of making speech- es  prejudicial to the security of the State or the  mainte- nance  of public order.  This was said to be the  result  of the  later pronouncements of this Court in Brij Bhushan  and Another v. The State of Delhi (2) and Romesh Thappar v.  The State  of Madras (3).  This contention was rejected  on  the ground that no such proviso could be read into section 3  on the strength of the later decisions referred to above  which related to a different point, viz., the scope of  authorised restrictions on the right to freedom of speech conferred  by article 19 (1). Falshaw J. (with whom Khosla J.  concurred), proceeded,  however, to draw attention to what he  conceived to  be an’ ’anomaly’ ’--while a State Government should  not be allowed to interfere with the freedom of the press by way of stopping the circulation of newspapers or by  pre-censor- ship of news, the Government should, for the same object, be entitled to place a person under preventive detention  which is  "even greater restriction on personal liberty  than  any restriction on a newspaper ever could be".  This distinction appeared  to  the  learned Judge to  be  illogical,  and  he thought  that there was "an apparent conflict"  between  the decisions of this Court in Gopalan’s case (1) and the  other cases, which could only be resolved by this Court.  "It    (1) [1950] S.C.R. 88.      (3) [1950] S.C.R. 594,    (2) [1950] S.C.R. 605. 455 would  be  well" the learned Judge concluded "if  the  point were  raised  in this form at an early date in  the  Supreme Court".      No  wonder that, after this  encouragement,  the  peti-

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tioners  have  preferred these petitions  raising  the  same contention  before  us.  On behalf of  the  petitioners  Mr. Hardy submitted that the provisions of the Act should not be used  to prevent a citizen from making speeches though  they might be considered to be prejudicial to the maintenance  of public  order,  for  maintenance of public order  is  not  a purpose for which imposition of a restriction on freedom  of speech is authorised by the Constitution, as held by this  Court in the Cross-roads(1) and the Organizer(2) cases.  It is true that in those cases this Court decided by a majority of  5 to 1 that "unless a law restricting freedom of  speech and expression is directed solely against the undermining of the  security of the State or the overthrow of it  such  law cannot fall within the reservation of clause (2) of  article 19  although the restrictions which it seeks to  impose  may have  been  conceived generally in the interests  of  public order".   But it will be noticed that the  Statutory  provi- sions  which were there declared void  and  unconstitutional authorised the imposition, in the one case, of a ban on  the circulation of a newspaper and, in the other, of pre-censor- ship on the publication of a journal.  No question arose  of depriving  any  person of his personal liberty by  detaining him in custody,  whereas here, as in Gopalan’s case(s),  the Court  is called upon to adjudge the legality of the  deten- tion  of  the petitioners with a view to prevent  them  from making  speeches  prejudicial to the maintenance  of  public order  Although personal liberty has a content  sufficiently comprehensive to include the freedoms enumerated in  article 19  (1), and its deprivation would result in the  extinction of those freedoms, the Constitution has treated these  civil liberties  as distinct fundamental rights and made  separate provisions  in article 19 and articles 21 and 22 as  to  the limitations and conditions subject to which  (1) [1950] S.C.R. 594.      (3) [1950] S.C.R. 88.  (2) [1950] S.C.R. 605.         59 456 alone they could be taken away or abridged.  The interpreta- tion of these articles and their correlation were elaborate- ly  dealt with by the full Court in Gopalan’s case(1).   The question arose whether section 3 of the Act was a law impos- ing restrictions on "the right to move freely throughout the territory of India" guaranteed under article 19 (1) (d) and, as  such,  was  liable to be tested with  reference  to  its reasonableness  under  clause (5) of that  article.  It  was decided by a majority of 5 to 1 that a law which  authorises deprivation  of  personal liberty did not  fall  within  the purview of article 19 and its validity was not to be  judged by  the criteria indicated in that article but  depended  on its compliance with the requirements of articles 21 and  22, and  as section 3 satisfied those requirements, it was  con- stitutional.   If the learned Judges in the High  Court  had paid  close  attention to the judgments  delivered  in  this Court, they would have found that there was nothing  illogi- cal  in that view and no conflict between the  decisions  in that case and in the other cases to which reference has been made.  The  observations of the Chief Justice  in  Gopalan’s case(1) make the position quite clear:    " As the preventive detention order results in the deten- tion  of  the applicant in a cell it was  contended  on  his behalf that the rights specified in article 19 (1) (a), (b), (c),  (d),  (e), and (g)have been infringed. It  was  argued that because of his detention he cannot have a free right to speech  as  and where he desired and the same  argument  was urged  in  respect of the rest of the  rights  mentioned  in

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sub-clauses  (b),  (c),  (d), (e) and  (g).   Although  this argument  is advanced in a case which deals with  preventive detention,  if correct, it should be applicable in the  case of  punitive detention also, to any one sentenced to a  term of  imprisonment  under the relevant section of  the  Indian Penal  Code.  So considered, the argument  must  clearly  be rejected. In spite of the saving clauses (2) to (6), permit- ting abridgement of the rights connected with each of  them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even (1) [1950] S.C.R. 88. 457 ordinary  assault, will be illegal. Unless  such  conclusion necessarily  follows  from the article, it is  obvious  that such  construction  should be avoided. In my  opinion,  such result  is clearly not the outcome of the Constitution.  The article has to be read without any preconceived notions.  So read,  it clearly means that the legislation to be  examined must  be directly in respect of one of the rights  mentioned in  the  sub-clauses.  If there is  a  legislation  directly attempting  to  control  a citizen’s freedom  of  speech  or expression,  or his right to assemble peaceably and  without arms,  etc., the question whether that legislation is  saved by the relevant saving clause of article 19 will arise.  If, however,  the legislation is not directly in respect of  any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive deten- tion, his right under any  of these sub-clauses is abridged, the  question  of  the application of article  19  does  not arise. The true approach is only to consider the  directness of  the legislation and not what will be the result  of  the detention otherwise valid, on the mode of the detenu’s life. On that short ground, in my opinion, this argument about the infringement  of  the  rights mentioned in  article  19  (1) generally  must  fail.  Any other construction  put  on  the article, it seems to me, will be unreasonable."(1)     Similar  conclusions  expressed  by  the  other  learned Judges  will  be found at pages 194, 229, 256  and  305.  It follows that the petitions now before us are governed by the decision  in  Gopalan’s case(1),  notwithstanding  that  the petitioners’ right under article 19 (1)(a) is abridged as  a result  of  their detention under the Act. The  anomaly,  if anomaly  there be in the resulting position, is inherent  in the  structure and language of the relevant articles,  whose meaning  and effect as expounded by this Court by  an  over- whelming majority in the cases referred to above must now be taken to be settled law, and courts in this country will  be serving no useful purpose by discovering supposed  conflicts and  illogicalities and recommending parties  to  re-agitate the points thus settled. (1) [1950] S.C.R. 88, 100-101. 458     Mr.  Hardy  next contended that, in view of  the  recent decision  of this Court in The State of Bombay v.  Atma  Ram Sridhar Vaidya(1), the grounds of detention communicated  to each  of  the petitioners must be held to be too  vague  and indefinite to enable them to make their "representations" to the  Chief  Commissioner,  Delhi, and  the  requirements  of clause (5)of article 22 not having thus been complied  with, the petitioners were entitled to be set at liberty.  Accord- ing  to  Mr. Hardy it was not sufficient that the  time  and place of the alleged speeches and their general effect  were indicated,  but  it was also necessary  that  the  offending passages or at least the gist of them should be communicated in order to enable the petitioners to make effective  repre-

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sentations.     In  the case relied on, this Court, no doubt, held by  a majority  that,  though the first part of  article  22  (s), which  casts  an obligation on the  detaining  authority  to communicate  the grounds of the order of detention would  be sufficiently complied with if the" deductions or conclusions of  facts  from  facts" on which the order  was  based  were disclosed,  the latter part of the clause, which confers  on the  person detained the right of making a  "representation" against the order, imposed, by necessary implication, a duty on the authority to furnish the person with further particu- lars  to  enable  him to make his  representation.   It  was further held that the sufficiency of this "second communica- tion" of particulars was a justiciable issue, the test being whether  "it is sufficient to enable the detained person  to make  a representation which, on being considered, may  give relief to the detained person."  While the communication  of particulars  should, subject to a claim of  privilege  under clause  (6), be" as full and adequate as  the  circumstances permit",  it did not, however, follow from clause  (6)  that "what  is  not stated or considered to be withheld  on  that ground  must  be disclosed and if not disclosed there  is  a breach  of a fundamental right.  A wide latitude is left  to the  authorities in the matter of disclosure." Referring  to the use of the term (1) [1951] S.C.R. 167. 459 "vague" in this connection,. it was remarked: "If on reading the  ground furnished it is capable of  being  intelligently understood and is sufficiently definite to furnish materials to  enable  the  detained person to  make  a  representation against the order of detention, it cannot be called vague"     This  decision  does not, in our  opinion,  support  the broad  proposition contended for by Mr. Hardy that  wherever an  order  of detention is based upon speeches made  by  the person sought to be detained, the detaining authority should communicate to the person the offending passages or at least the  gist  of  such passages on pain  of  having  the  order quashed  if it did not. In the cases now before us the  time and  place at which the speeches were alleged to  have  been made  were  specified and their general  nature  and  effect (being  such  as to excite disaffection between  Hindus  and Muslims)  was also stated.  It is difficult to see  how  the communication  of particular passages or their  substance  - one of the petitioners denied having made any speech on  the day specified--was necessary in addition to the  particulars already  given,  to  enable the petitioners  to  make  their representations. It should be remembered in this  connection that the Court is not called upon in this class of cases  to judge  whether  or not the speech or  speeches  in  question constituted a prejudicial act falling within the purview  of section  3 of the Act as it is called upon  in  prosecutions for  offences  under  section 124A or section  153A  of  the Indian  Penal Code to find whether the speech attributed  to the  accused person constituted an offence under those  sec- tions.  That is a matter for the detaining authority  to  be satisfied about.  Nor do these cases belong to the  category where a reference had to be made to the Advisory Board under the Act, so that any attempt by the petitioners to rebut the inference  drawn  by  the  detaining  authority  from  their speeches  had to be made only before the executive  authori- ties.  In such circumstances the suggestion that without the communication  of the offending passages or their  substance the petitioners were not in a position to make their  repre- sentations

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460 to the executive authorities sounds unreal and is devoid  of substance.   It  may  be possible to  conceive  of  peculiar situations  where perhaps the person detained on  ground  of prejudicial speeches might be in a better position to make a representation if he was given the objectionable passages or the  gist  of them, but the present cases are  not  of  such peculiar  character.   On the other hand,  cases  have  come before  this Court where speeches were alleged to have  been made  after  midnight  at secret gatherings  of  kisans  and workers inciting them to violence, crime and disorder.  Such allegations could only be based in most cases on information received  by  the executive  authorities  from  confidential sources and it would not be practicable in all such cases to have a record made of the speeches delivered.  To hold  that article 22 (5) requires that, wherever detention is grounded on  alleged  prejudicial speeches, the  detaining  authority should indicate to the person detained the passages which it regards as objectionable would rob the provisions of the Act of much of their usefulness in the very class of cases where those   provisions were  doubtless primarily intended to  be used  and where their use would be most legitimate.  In  the case  of these petitioners, no doubt, the speeches are  said to have been made at public meetings, and it is not suggest- ed  on behalf of the respondents that no record was made  of the speeches, so that the details asked for could have  been furnished.   The omission to  do so, for which no reason  is disclosed  in these proceedings, is regrettable, as  it  has given  rise to avoidable grievance and complaint.   The  au- thorities  who feel impelled in discharge of their  duty  to issue  orders of detention will do well to bear in mind  the following remarks of the Chief Justice in the case  referred to above:     "In numerous cases that have been brought to our notice, we  have  found  that there has been  quite  an  unnecessary obscurity on the part of the detaining authority in  stating the grounds for the order. Instead of giving the information with  reasonable details, there is a deliberate  attempt  to use the minimum number 461 of  words  in  the communication conveying  the  grounds  of detention.  In our opinion, this attitude is quite  deplora- ble".     This,  however, does not affect our conclusion in  these cases  that  the  grounds communicated  to  the  petitioners contain sufficient particulars to enable them to make  their representations  to  the authority concerned, and  that  the requirements of article 22 (5) have thus been complied with.     It  is also urged that the orders of detention were  bad because  they  did not specify the period during  which  the petitioners  were to be under detention. This point  is  now concluded  against the petitioners by the decision  of  this Court in Ujager Singh v. The State of Punjab (1) and  Jagjit Singh  v. The State of Punjab (2) where it was  pointed  out that  as section 12 of the Act itself prescribed  a  maximum period  of  one year for detention thereunder,  such  orders could not be said to be of indefinite duration and  unlawful on that ground.     Lastly, it was said that the petitioners were  prominent members of a political organisation which was opposed to the ideals  and  policies of the party in power,  and  that  the orders of detention were made "for the collateral purpose of stifling  effective  political  opposition  and   legitimate criticism of the policies pursued by the Congress Party  and had  nothing  to do with the maintenance of  public  order".

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Allegations  of mala fide conduct are easy to make  but  not always  as easy to prove.  The District Magistrate  has,  in his affidavit filed in these proceedings, stated that,  from the  materials placed before him by persons  experienced  in investigating matters of this kind, he was satisfied that it was  necessary  to  detain the petitioners with  a  view  to preventing  them from acting in a manner prejudicial to  the maintenance of public order, and he has emphatically repudi- ated  the  purpose and motive imputed to him. We  have  thus allegations on the one side and denial on the other, and the petitioners  made no attempt to discharge the burden,  which undoubtedly lay upon them, to prove that the District (1) Petition No. 149 of 1950.  (2) Petition No. 167 of 1950. 462 Magistrate  acted mala fide in issuing the orders of  deten- tion. The petitions are dismissed.     MAHAJAN  J.--These three petitions under article  82  of the Constitution of India were presented by Prof. Ram Singh, Bal  Raj Khanna and Ram Nath Kalia, all three of  whom  were arrested  and placed in detention on the 22nd August,  1950, under the orders of the District Magistrate of Delhi,  under the  Preventive  Detention Act, 1950.  The  petitioners  are respectively,  the President, Vice-President and the  Secre- tary  of  the Delhi State Hindu Mahasabha.  The  grounds  of detention  supplied  to them are  almost  identical.   Those furnished to Prof. Ram Singh read as follows :--     "In  pursuance of section 7 of the Preventive  Detention Act,  you are hereby informed that the grounds on which  the detention order dated August 22, 1950, has been made against you are that your speeches generally in the past and partic- ularly on the 13th and 15th August, 1950, at public meetings in  Delhi have been such as to excite  disaffection  between Hindus and Muslims and thereby prejudice the maintenance  of public order in Delhi and that in order to prevent you  from making such speeches it is necessary to make the said order.     You are further informed that you are entitled to make a representation  against your detention to the State  Govern- ment, that is, the Chief Commissioner, Delhi." The  grounds supplied to the other    two  petitioners  were the same except that in the     case of Bal Raj Khanna  only the  15th August, 1950,   is mentioned as the date on  which the  public speech  was made, and in the case of  the  third petitioner, it is only the 13 th August, 1950. Mr.  Hardy  on behalf of the petitioners. inter  alia  urged that the grounds served on the petitioners as justifying the orders of detention are quite indefinite and are not  suffi- cient to enable them to make an effective representation  to the State Government against 463 their detention and that being so, their detention is  ille- gal.     An  affidavit  of  the District  Magistrate  was  placed before  us at the hearing of the cases stating that  he  was satisfied  that  the petitioners’  speeches  generally,  and particularly  those made on the 13th and 15th August,  1950, at  public  meetings  in Delhi had been such  as  to  excite disaffection between Hindus and Muslims.  No particulars  of the  offending  words or passages or any indication  of  the nature  of  the  language employed by  the  petitioners  was mentioned  either  in  the grounds  or  in  this  affidavit. Reference  was made to two speeches of the 13th and 15th  in the  case  of the first petitioner and to  only  one  speech delivered  on  the 13th and 15th respectively by  the  other two. So far as the earlier speeches are concerned, it is not

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even stated on what occasions, on what dates and during what years were those speeches made or delivered. After a  refer- ence to the dates of the two speeches, the conclusion  drawn by the District Magistrate has been mentioned. The  question for  decision  is whether what is stated in the  grounds  is sufficient  material on the basis of which  the  fundamental right conferred on the petitioners by article 22 (5) of  the Constitution can be adequately exercised and whether without knowing  the  substance  of the offending  passages  in  the speeches  from  which the inference has been  drawn  by  the District Magistrate it is possible to prove that this infer- ence is not justified.     After  considerable thought I have reached the  decision that  these cases fall within the ambit of the  decision  of this  Court  in  The State of Bombay v.  Atma  Ram  Shridhar Vaidya  (1).   In that case certain general  principles  ap- plicable to cases of this nature were stated by the  learned Chief  Justice, who delivered the majority judgment, in  the following terms:     (1) That if the representation has to be intelligible to meet  the charges contained in the grounds, the  information conveyed to the detained person must  (1) [1951] S.C.R. 167.         60 464 be sufficient to attain that object.  Without getting infor- mation sufficient to make a representation against the order of  detention  it is not possible for the man  to  make  the representation. Indeed, the right will be only illusory  but not a real right at all.     (2) That while there is a connection between the obliga- tion  on  the  part of the detaining  authority  to  furnish grounds  and the right given to the detained person to  have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds  for the two purposes is quite different. For the first, the test is  whether it is sufficient to satisfy the  authority.  For the second, the test is, whether it is sufficient to  enable the detained person to make the representation at the earli- est  opportunity. On an infringement of either of these  two rights the detained person has a right to approach the court and  to  complain that there has been an infringement  of  a fundamental right and even if the infringement of the second part  of the right under article 22(5) is established he  is bound to be released by the court.     (3)  That it cannot be disputed that the  representation mentioned  in the second part of article 22(5) must  be  one which  on being considered may give relief to the  detaining person.  It was pointed out that in the numerous cases  that had  been  brought to the notice of the court it  was  found that  there had been quite an unnecessary obscurity  on  the part  of the detaining authority in stating the grounds  for the  order, and that instead of giving the information  with reasonable details, there is a deliberate attempt to use the minimum  number of words in the communication conveying  the grounds  of  detention and that such an attitude  was  quite deplorable.     In  my  opinion,  these observations  have  an  apposite application  to the grounds furnished to the petitioners  in the  present cases.  The speeches alleged to have been  made by  the petitioners were made in public meetings  and  could not  be described as of a confidential nature and no  privi- lege in respect of them was 465 claimed  under  article 22 (6) of  the  Constitution.   That

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being  so, the material on the basis of which  the  District Magistrate  drew  the inference that  these  speeches  would cause  or were likely to cause disaffection  amongst  Hindus and Muslims should have been communicated to the petitioners so that they may be able to make a representation, which  on being considered may give relief to them.  For that  purpose either  the  words  used by them or  the  substance  of  the speeches  should  have been communicated to the  detenus  so that  they may be able to prove that such words or  passages never  formed part of the speeches and have been  introduced in  them  as a result of some error or  that  no  reasonable person  could  draw an inference from them that  those  were likely  to cause hatred and enmity between the two  communi- ties.  The sufficiency of the material supplied is a  justi- ciable issue, though the sufficiency of the grounds on which the detaining authority made up his mind is not a  justicia- ble  issue. In my opinion, in the absence of any  indication in  the  grounds as to the nature of the words used  by  the detenus  in their speeches from which an inference has  been drawn against them they would not be able fully to  exercise their fundamental right of making a representation and would not  be able to furnish a proper defence to the charge  made against them.     Envisaging oneself in the position of a person asked  to draw  out a written representation on behalf of the  detenus on  the  materials supplied to them, the  effort  could  not proceed  beyond  a bare denial of the speeches  having  been made,  or  a bald statement that no words  were  used  which could  possibly excite disaffection between Hindus and  Mus- lims.   Such  a representation would be  an  idle  formality inasmuch  as  mere denials without any cogent  arguments  to support them would convince nobody.  Without a knowledge  of the  offending words or passages, or their substance, it  is not  possible  to argue that the inference drawn  is  not  a legitimate one or to allege that the words used fall  within the  ambit  of legitimate criticism permissible in  law  and cannot be considered to excite disaffection 466 amongst Hindus and Muslims.  The phraseology employed by the detaining  authority  in the charge sheet  supplied  to  the detenus  seems to have been borrowed from the language  used in sections 124A and 153A of the Indian Penal Code. Judicial literature abounds in cases where words and passages  likely to  cause disaffection between Hindus and Muslims  or  which have that effect have been considered and discussed. In  the words  objected to were known, the representation on  behalf of the detenus could easily have been drawn up with the help of  judicial  precedents and reasoning  considered  good  in those  cases.  Again, without knowing the substance  of  the offending  words from which the inference has been drawn  by the detaining authority it is not even possible to urge that these  words were merely a quotation from some known  author or  that  the words used fall  within  legitimate  religious propaganda  permitted by article 25 of the  Constitution  or concern the propagation of some political creed to which  no objection  could  be  taken.  As regards  the  two  speeches alleged to have been given by the detenus, if the allegation that they were such as to excite disaffection between Hindus and  Muslims  is  correct, the detenus were  guilty  of  the offence  under  section 153A of the Indian  Penal  Code  and could not only have been punished for the offence under that section but could also have been kept out of harm’s way  for the  future  by that procedure.  A charge sheet  under  that section  or in a trial under section 124A which uses  analo- gous  language would have been defective if it did not  men-

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tion the substance of the speeches alleged to have been made by  the  person charged.  [Vide Chint Ram  v.  Emperor  (1); Chidambaram Pillai  v.  Emperor(2); Mylapore Krishnaswami v. Emperor(3).]   In  some  of these cases the  charge  was  in substance  similar  to the charge here.  If a charge  in  an open trial for an offence under these sections is  defective without  the  substance of the words used  or  the  passages being cited therein, a fortiori, the material supplied in  a preventive (1)  A.I.R.  1931 Lah. 186.    (3) I.L.R. 32 Mad.  384. (2) I.L.R. 32 Mad. 3. 467 detention  case  on a similar charge should be  regarded  as insufficient when a man has not even a right of being  heard in  person  and has merely to defend himself by means  of  a written  representation.  It has to be  remembered  in  this connection  that  the phrase  "excite  disaffection  amongst Hindus  and  Muslims"  is of a very general  nature  and  an inference of this kind may easily have been drawn on materi- al  which  would not warrant such an  inference.  No  reason whatsoever has been stated in the affidavit of the  District Magistrate for not disclosing the words used by the  detenus even  after ’this length of time and from which he drew  the conclusions on the basis of which he has kept the  petition- ers  under  detention for a period well over six  months  or more.     For  the reasons given above I venture to  dissent  from the opinion of the majority of the Court with great  respect and  hold  that  the detention orders  above  mentioned  are illegal.   I accordingly order the release of the  petition- ers.   On the other points argued in the case I  agree  with judgment of Sastri J.     BOSE J.--I agree with my brother Mahajan whose  judgment I  have  had the advantage of reading, and with  the  utmost respect  find myself unable to accept the majority view.   I am of opinion that these petitioners should all be  released on the ground that their detentions are illegal.    I do not doubt the right of Parliament and of the execu- tive  to  place restrictions upon a man’s freedom.  I  fully agree that the fundamental rights conferred by the Constitu- tion are not absolute.  They are limited. In some cases  the limitations  are  imposed by the  Constitution  itself.   In others,  Parliament has been given the power to impose  fur- ther restrictions and in doing so to confer authority on the executive  to carry its purpose into effect.  But  in  every case it is the rights which are fundamental, not the limita- tions;  and ’it is the duty of this Court and of all  courts in the land to guard and defend these rights jealously.   It is our duty and privilege to see that rights which were 468 intended  to be fundamental are kept fundamental and to  see that neither Parliament nor the executive exceed the  bounds within  which  they are confined by  the  Constitution  when given  the  power to impose a restricted set of  fetters  on these  freedoms;  and in the case of the executive,  to  see further that it does not travel beyond the powers  conferred by  Parliament. We are here to preserve intact for the  peo- ples of India the freedoms which have now been guaranteed to them and which they have learned through the years to  cher- ish,  to  the very fullest extent of the guarantee,  and  to ensure that they are not whittled away or brought to  nought either by Parliamentary legislation or by executive action.     It  is the right to personal freedom which  is  affected here: what the Constitution calls the "right to move  freely throughout  the  territory of India."  Now I do  not  for  a

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moment  deny  the right of Parliament to  place  limitations upon  that right and to do it by preventive detention.  Much as  all freedom loving persons abhor the thought of  locking men and women up without trial and keeping them behind  bars indefinitely,  the regrettable necessity to do so is  to  my mind  undoubted.   The safety of the State, which  is  para- mount,  requires  it  and, in any  event,  the  Constitution allows  it  but--and this is important--subject  to  limita- tions.     So  far as the Constitution is concerned, it  has  given Parliament the power to legislate on this subject by article 246 read with item 9 of List I of the 7th Schedule and  item a  in  List III, and I have no doubt  that  the  legislation sought  to be impugned here is intra vires. But I am  unable to  hold that the executive action taken in these  cases  on the  strength  of that legislation is within the  law.   The executive  has  no power to detain except  within  the  four corners  of the Constitution and the Act now challenged.  In my, opinion, it has not kept itself within those limits.     The  provisions  of  the Constitution  relevant  to  the present purpose have been examined by this Court in previous cases  and  I have neither the right-nor the  desire  to  go behind them.  My brother Mahajan has 469 set out his view of the law which these cases have  settled. I  respectfully agree with him and will not cover  the  same ground.   But  I do wish to say this. I am not  prepared  to place  any  narrow or stilted construction either  upon  the Constitution or upon the decisions of this Court which  have so far interpreted it.  If it were permissible to go  behind file Constitution and enquire into the reason for the provi- sions  dealing with the fundamental rights, one  would  find them  bound  up with the history of the fight  for  personal freedom  in this land.  But that is not permissible  and  is irrelevant.  What does matter is that the right to  personal freedom has been made fundamental and that the power even of Parliament  itself  to  hedge  it  round  with  fetters   is "cribbed,  cabined and confined".  I conceive it to  be  our duty  to  give the fullest effect to every syllable  in  the Articles  dealing with these rights.  I do not mean  to  say that  any impossible or extravagant construction  should  be employed  such  as  would make the  position  of  Government impossible or intolerable.  But I do insist that they should be  interpreted in a broad and liberal sense so as to  bring out in the fullest measure the purpose which the framers  of the  Constitution had in mind as gathered from the  language they  used  and the spirit their  words  convey,  namely  to confer the fullest possible degree of personal liberty  upon the  subject consistent with the safety and welfare  of  the State.  My  Lord the Chief Justice has pointed  out  in  The State  of  Bombay v. Atma Ram Shridhar Vaidya (1)  that  the information  supplied to the  detenu  must be sufficient  to enable  him  to meet the charges contained  in  the  grounds given  to  him.  and that without that the  right  would  be illusory. Are the present cases covered by that rule ? I  do not  think they are.  Put at their highest, the grounds  set out the date and place of the meetings at which the speeches complained of are said to have been made and they do no more than say that they were. (1) [1951] S.C.R. 167. 470 "such  as to excite disaffection between Hindus and  Muslims and  thereby  prejudice the maintenance of public  order  in Delhi." I  have no quarrel with the details regarding the  date  and

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place but I do not consider that the portion relating to the nature  of the speeches fulfils the requirements which  have been laid down by this Court regarding particulars. Now I fully agree that each case will have to be decided  on its own facts so far as this is concerned. But when weighing the  circumstances this must be borne in mind.   The  detenu has  no  right of personal appearance  before  the  Advisory Board or other revising authority, nor can he be represented by  counsel. The Board or other authority can deal with  his representation without hearing him or anyone on his  behalf. Therefore, his only hope of being able to convince the Board lies in the explanation he offers.  But how can anyone  give a  fair  explanation of his conduct unless he is  told  with reasonable plainness what he has done, and in the case of  a speech, the words used are everything. They have been called "verbal  acts" in another connection.  Now I take it  to  be established  that Government is bound to give a detenu  rea- sonable  particulars of the acts complained of when  conduct is in question.  Why should a different rule obtain when the acts complained of are verbal ? It was contended in the argument that the man who makes  the speech  is in a position to know what he said and so is  not at  a  disadvantage.  But that, in my opinion,  is  not  the point.  He may know what he said but he cannot know what the authorities think he said unless they give him some reasona- ble  inkling of what is in their minds. It has to be  remem- bered  that  what the Advisory Board has before  it  is  not necessarily the words employed or even’ their substance  but what the authorities say the man said. This has to be viewed from two angles. The first is  whether the reports handed in to the authorities are Correct.   Even with the utmost good faith mistakes do 471 occur  and it is quite easy for a reporter to get his  notes mixed and to attribute to A what was said by B. But unless A knows that  is what happened, it would be very difficult for him  to envisage such a contingency and give  the  necessary explanation of fact in his representation.     The  next point is this.  When a man ,is told  that  his speech excited disaffection and so forth, he is being  given the  final  conclusion reached by some other mind  or  minds from  a set of facts which are not disclosed to him. If  the premises  on which the conclusion is based are  faulty,  the conclusion  will  be wrong.  But even if  the  premises  are correct,  the  process  of reasoning may be  at  fault.   In either event, no representation of value can be made without a reasonably adequate knowledge of the premises.     Envisage for a moment the position of the Board. In  the ordinary  course, it would have before it a speech with  the offending passages in full, or at any rate the gist of them. From the other side it would have a bare denial, for that is about all a detenu can say in answer to the grounds given to him when he is not told the premises on which the conclusion is based.  In most cases, that sort of representation  would have very little value.  Consider this illustration.  Let us assume  the detenu had spoken about Hindus and  Muslims  but had urged unity and amity and had said nothing objectionable but that unknown to him the police, through a perfectly bona fide  mistake,  had imputed to him certain  offensive  words used  by  another  speaker.  What would be the  value  of  a detenu  saying  "I said nothing objectionable" and  that  is almost  all he can say in such a case.  He  cannot  envisage the mistake and say, "Oh yes, that was said, but not by  me. It was said by A or B." Consider a second illustration where the  detenu had quoted a well known living authority. I  can

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conceive  of  cases where words in the mouth of A  might  be considered objectionable by some but would never be  condem- ned in the mouth of B.  It might make a world of  difference to 472 the  detenu if he could explain the source of  the  passages complained of in his speech.  But it might be very difficult for him to envisage the possibility of objection being taken to anything coming from the source from which he quoted.     I  am anxious not to be technical and I would be  averse to  an  interpretation which would  unnecessarily  embarrass Government,  but I do conceive it to be our duty to  give  a construction which, while falling strictly within the  ambit of the language used, is yet liberal and reasonable, just to the detenu, fair to the Government. And after all, what does a construction such as I seek to make import ? It places  no great  or impossible strain on the machinery of  Government. All  that is required is that the authorities should  bestow on  the cases of these detenus a very small fraction of  the thought,  time and energy which the law compels in the  case of  even  the meanest criminal who is arraigned  before  the Courts  of this country.  The fact that there is  absent  in the  case  of these persons all the  usual  safeguards,  the glare  of  publicity, the right to know with  precision  the charge  against him, the right to speak in his own  defence, is all the more reason why Government should be  thoughtful, considerate and kind and should give them the maximum  help. In  any case, that, in my opinion, is what the  Constitution requires and I am not prepared to abate one jot or tittle of its rigours.      My  attention  has been drawn to two decisions  of  this Court  which  are said to be on all fours with  the  present case.  One is Vaidya’s case (1) and the other Lahiri’s  (2). In  the  latter, the point whether the gist  of  the  speech should  be given was not considered. It seemed to have  been assumed that it need not. But I am unable to accept that  as authority for anything beyond the fact that  was not consid- ered necessary on the facts and in the circumstances of that particular  case.  As my Lord the Chief Justice pointed  out in the earlier decision cited above, the question of  (1) [1951] S.C.R. 167.         (2) Not reported, 473 what  is vague "must vary according to the circumstances  of each case." It was also said there that     "the  conferment of the right to make  a  representation necessarily  carries with it the obligation on the  part  of the detaining authority to furnish the grounds, i.e.,  mate- rials on which the detention order was made." It was further said     "Ordinarily,  the ’grounds’ in the sense of  conclusions drawn by the authorities will indicate the kind of  prejudi- cial  act  the detenu is suspected of being engaged  in  and that will be sufficient to enable him to make a  representa- tion  setting  out  his innocent activities  to  dispel  the suspicion against him."     This envisages cases in which that would not be  enough. It  is therefore sufficient for me to say that in a case  of this  kind, where the matter has to turn on the  facts   and circumstances of each case, no useful purpose can be  served by  examining  the facts of some other case for  use  as  an analogy.   In my opinion, on the facts and circumstances  of the  present cases, the grounds supplied  were  insufficient and  the  gist of the offending passages  should  have  been supplied.   The omission to do so invalidates the  detention and each of the detenus is entitled to immediate release.

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                          Petitions dismissed.     Agent  for  the petitioners in Petitions Nos. 21  &  22: Ganpat Rai.     Agent  for  the petitioner in Petition  No.  44:  V.P.K. Nambiyar. Agent for the respondents: P.A. Mehta. 474