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PETITIONER: S.M.D. KIRAN PASHA

       Vs.

RESPONDENT: GOVERNMENT OF ANDHRA PRADESH AND ORS.

DATE OF JUDGMENT09/11/1989

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) FATHIMA BEEVI, M. (J)

CITATION:  1989 SCR  Supl. (2) 105  1990 SCC  (1) 328  JT 1989 (4)   366        1989 SCALE  (2)1083

ACT:     Constitution of India, 1950: Articles 32 & 226--Life and personal   liberty--Right  to-’Enforcement’  of   right   in Court--Whether  Court can insist that person surrenders  and then files habeas corpus petition--Post violation resort and pre violation of protection----Distinction between.

HEADNOTE:     The appellant is a Municipal Councillor of the  Cuddapah Municipal  Council.  He  was elected to the  Council  as  an independent candidate. According to him, he enjoys populari- ty  in his area and had previously held important  positions in the District. He states that the local leadership of  the ruling  Telugu  Desam Party having failed to  woo  him  into their fold, he was pressurised through the Excise and Police authorities  foisting false cases upon him. Scenting a  move to  detain  him under the provisions of the  Andhra  Pradesh Prevention of Dangerous Activities of Bootleggers,  Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and  Land Grabbers  Act, 1986, the appellant filed a writ petition  on 6.6.1988  in  the High Court, averring inter alia  that  the successive  actions  initiated against him were  a  part  of political  vendetta. A learned Single Judge on 8.8.1988  was pleased  to direct interim the respondents not to  take  the appellant into preventive custody for a period of 15 days on the  basis  of  the cases already  registered.  However,  on 10.6.1988 the appellant was served the detention order dated 3.6.1988  as  well as the grounds of detention, and  he  was taken into custody, but was released after four days.     The  appellant  filed on 25.6.1988 in his  pending  writ petition a miscellaneous petition, as an additional  affida- vit.  He assailed therein the order of detention on  various grounds. A Division Bench of the High Court, on reference by the  learned Single Judge, held that the prayer in the  writ petition  had  become infructuous, and that  there  were  no extraordinary  or special reasons to depart from the  normal rule, namely, that in such a case the appellant should first surrender and move for a writ of habeas corpus. The Division Bench accordingly, dismissed the writ petition. Before  this Court it was inter alia contended on behalf  of the 106

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appellant  that the High Court erred in holding  that  there were  no extraordinary circumstances or special  reasons  to depart  from  the  normal rule, thereby  refusing  to  grant relief  to the appellant against infringement of his  funda- mental right to liberty; that the detention order having not been  approved  by the State Government  as  required  under Section  3(3) of the Prevention of Dangerous Activities  Act and  the appellant’s case having not been placed before  the Advisory  Board  as required under section 10  thereof,  the detention  order ceased to be in force and hence was  liable to be quashed.     On  behalf of the respondent, it was contended that  the detention order having been passed before the writ  petition was  filed, the High Court was right in dismissing the  writ petition  following the court’s practice and procedure,  and that  there  were  no extraordinary or  special  reasons  to depart  from the normal rule inasmuch as granting relief  at such  a  stage  would defeat the very purpose  of  the  Act. Counsel,  however, could not deny that the  detention  order was not approved by the State Government and that the appel- lant’s case was not placed before the Advisory Board.     Allowing the appeal and quashing the order of detention, this Court,     HELD: (1) The position of a person who is actually under illegal  detention and of a person who is in imminent  jeop- ardy of illegal detention are not far dissimilar. Refusal to interfere in such a case may amount to denial of the  funda- mental right itself. [114A].       Jayantiial  Bhagwandas Shah v. The State of  Maharash- tra, [1981] 1 Cr. L.J. 767, referred to.     (2)  There could be no reason why in an exceptional  and rare  case, detention order already made, and either  served or yet to be served, and the person is still free, could not be legally brought under challenge. [114F]     Vedprakash Devkinandan Chiripal v. State of Gujarat, AIR 1987   Gujarat 253.     A.K.  Gopalan v. State of Madras, AIR 1950 SC 27;  Addl. District Magistrate, Jabalpur v. Shivakant Shukla, AIR  1976 SC 1207, referred to. 107     (3) For enforcement of one’s right to life and  personal liberty resort to Article 226(1) has been provided for.  The word  ’enforcement’ has also been used in Article 32 of  the Constitution  which provides the remedy for  enforcement  of rights  conferred by Part III of the Constitution. The  word ’enforcement’  has  not been defined  by  the  Constitution. [115B]     (4)  ’Enforce’  means to compel obedience  to  laws;  to compel  performance, obedience by physical or  moral  force. [115C]     (5)  Conferring the right to life and liberty imposes  a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act  or to  do anything which would amount to infringement  of  that right, except in accordance with the procedure prescribed by law. [115F]     (6)  Resort to Article 226 after the right  to  personal liberty is already violated is different from the pre-viola- tion protection. Post-violation resort to Article 226 is for remedy  against violation and for restoration of the  right, while  pre-violation protection is by compelling  observance of  the obligation or compulsion under law not  to  infringe the right by all those who are so obligated or compelled. To surrender  and apply for a writ of habeas corpus is a  post- violation  remedy for restoration of the right which is  not

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the  same  as  restraining potential violators  in  case  of threatened violation of the right. [116B-C]     (7) Law surely cannot take action for internal  thoughts but  can  act only after overt acts. If overt  acts  towards violation  have already been done and the same has  come  to the  knowledge of the person threatened with  the  violation and he approaches the court under Art. 226 giving sufficient particulars of proximate actions as would imminently lead to violation  of  right, should not the court call  upon  those alleged  to have taken these steps to appear and show  cause why they should not be restrained from violating that right? [116 C-D]     (8) The difference of the two situations have  different legal  significance. If a threatened invasion of a right  is removed  by restraining the potential violator  from  taking any steps towards violation, the rights remain protected and the  compulsion  against its violation is enforced.  If  the right has already been violated, what is left is the  remedy against  such  violation and for restoration of  the  right. [116F-G] (9)  In the instant case, the appellant’s fundamental  right to 108 liberty  is the reflex of a legal obligation of the rest  of the society, including the State, and it is the  appellant’s legal  power  bestowed upon him to bring about  by  a  legal action the enforcement of the fulfilment of that  obligation existing  towards him. Denial of legal action would,  there- fore,  amount to denial of his right of enforcement  of  his right  to  liberty. A petition for a writ of  habeas  corpus would not be a substitute for this enforcement. [120D-E]     K.K.  Kochunni v. The State of Madras and  Ors.,  [1959] Supp.  2 SCR 316; Special Reference No. 1 of 1964, [1965]  1 SCR  413;  M.C. Mehta v. Union of India, [1987]  1  SCC  395 referred to.     (10)  As  the  detention order was  already  passed  and served and the detenu was already taken into custody  during the  pendency of the writ petition, these subsequent  events having  being brought to the notice of the court by a  Misc. application  in the form of additional affidavit,  the  same ought to have been dealt with by the High Court..[113A-B]     (11)  The detention order had not been approved  by  the State  Government within 12 days of its being made,  as  en- joined  under  subsection (3) of section 3 of the  Act.  The result is that the order could not remain in force more than 12 days after making thereof and as such must be treated  as to  have ceased to be in force and non-existent  thereafter. [122A]     (12) Even though the detenu was released, if the  deten- tion order was in force, his case was required to be  placed before the Advisory Board. This being a mandatory  provision and having not been complied with, the detention order  even if otherwise in force, cannot be said to have been in  force after three weeks. [122H; 123A]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 702 of 1989.     From the Judgment and Order dated 4.7.1988 of the Andhra Pradesh High Court in W.P. No. 8610 of 1988. M.C. Bhandare and Ms. C.K. Sucharita for the Appellant.     Ganesh, S. Muralidhar, T.V.S.N. Chari and Raghav for the Respondents.

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109 The Judgment of the Court was delivered by K.N. SAIKIA, J. Special leave granted.     This  appeal is from the Judgment and Order of the  High Court  of Andhra Pradesh at Hyderabad dated 4.7.1988  passed in Writ Petition No. 86 10 of 1988.     The  appellant states that he enjoys popularity  in  his area and that he previously held several important positions in the Cuddapah District of Andhra Pradesh, such as organis- ing  Secretary of the Andhra Pradesh Congress Committee  for several years, a Municipal Councillor from 1982 to 1986  and a Vice-Chairman of Cuddapah Municipal Council. According  to him  in  December 1985 he was elected as a Chairman  of  the Cuddapah  Municipal  Council for its residuary term  and  in March  1987  he was elected to the Municipal Council  as  an independent  candidate defeating the Telugu Desam  and  Con- gress (I) candidates by a large margin. It is his case  that the  local  leadership  of the ruling  Telugu  Desam  Party. having failed to woo him into their fold he was  pressurised through  the  Excise and Police authorities  foisting  false cases  upon him. On 13.11.1987, the police  having  summoned him  to the Police Station for taking his photograph as  was done in case of criminals, he moved the Andhra Pradesh  High Court by Writ Petition No. 79038 of 1987 and the High  Court was pleased to issue directions as prayed for, by its  order dated  17.12.1987.  Thereafter the  excise  authorities  are stated  to have registered some cases against the  appellant who applied for and was granted bail on 10.5.1988  rejecting the Excise authorities’ prayer for custody. Scenting a  move to  detain the appellant under the provisions of the  Andhra Pradesh  Prevention of Dangerous Activities of  Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic  Offenders and Land Grabbers Act, 1986, hereinafter referred to as ’the Act’, the appellant filed Writ Petition No. 8610 of 1988  on 6.6.1988  in the Andhra Pradesh High Court  averting,  inter alia, that the successive actions initiated against him were a  part  of political vendetta. A learned  Single  Judge  on 8.6.1988  was pleased to direct interim the respondents  not to  take the appellant into preventive custody for a  period of  15 days on basis the cases already registered.  However, on 10.6.1988 the appellant was served the detention order in S.No. 7/1988 dated 3.6.1988 as well as the grounds of deten- tion;  and he was taken into custody and detained in  Secun- derabad  jail, but was released after four days. The  deten- tion  order stated that with a view to preventing  him  from acting in a manner prejudicial to the maintenance of  public order, it was 110 necessary  to make an order directing that "he shall be  de- tained." The grounds of detention as served upon the  appel- lant  contained altogether 13 grounds ranging a period  from 23.11.1974 to 7.5.1988.     The appellant filed on 25.6.1988 in his writ petition  a miscellaneous  petition being W.P.M.P.S.R. No. 51830, as  an additional  affidavit,  stating, inter alia, that  the  writ petition  was  filed by him seeking a direction to  the  re- spondents  to  refrain from making an  order  detaining  him under  the provisions of the Act and the same  was  admitted and  interim direction issued. But thereafter the  detention order in S.No. 7 of 1988 dated 3.6.1988 was served on him on 10.6.1988 and, therefore, he submitted the additional  affi- davit with reference to the impugned order of detention.  He assailed  therein the grounds of detention as vague,  stale, non-existent and, in any case, irrelevant bearing no reasons for the decision that his detention was necessary to prevent

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him  from acting in a manner prejudicial to the  maintenance of  public order. He also assailed the order on  grounds  of non application of mind by the respondent NO. 2 and  absence of nexus between the grounds and maintenance of public order and of non-disclosure of any rational basis for formation of such  an  opinion.  He refuted and denied  each  of  the  13 grounds  and  prayed that the writ petition  be  amended  by substituting  the  prayer so as to issue a  writ,  order  or direction and more particularly one in the nature of writ of mandamus  declaring the order of the Collector and  District Magistrate  respondent  No. 2 herein in S.R. No. 7  of  1988 dated 3.6.1988 made under Act 1 of 1986 as illegal and  void and to pass such other orders as are necessary in the inter- ests of justice. Admittedly no specific order was passed  on this  miscellaneous  petition.  It appears  that  a  Counter Affidavit  was filed in the writ petition on behalf  of  the respondents and the appellant filed a reply affidavit there- to.     A Division Bench of the High Court of Andhra Pradesh  on reference  by the learned Single judge heard the writ  peti- tion  analogously with another writ petition and  observing, inter  alia,  that as an order of detention  was  made  even before the writ petition was filed, held that the prayer  in the  writ  petition had become infructuous; and  that  there were no extraordinary or special reasons to depart from  the normal  rule,  namely,  that in such a  case  the  appellant should first surrender and move for a writ of habeas corpus, and accordingly dismissed the writ petition.     Mr. M.C. Bhandare, the learned counsel for the appellant submits, inter alia, that the High Court erred in dismissing the appellant’s 111 writ  petition  holding  that there  were  no  extraordinary circumstance,  or special reasons to depart from the  normal rule that the appellant in such a case should first  surren- der  and  then  move a petition for  habeas  corpus  thereby refusing to grant relief to the appellant against  infringe- ment  of  his  fundamental right to liberty;  and  that  the grounds of detention were vague, irrelevant, stale and  non- existent having no relation to the stated purpose of  deten- tion, and there was mala fide exercise of power and complete non-application of mind on the part of the detaining author- ity  for which the grounds of detention ought to  have  been rejected  and the detention order set aside. Counsel  relies on  a decision of the Bombay High Court reported in  1981(1) Crl.  L.J. 767 and one of the Gujarat High Court  since  re- ported in AIR 1978 Gujarat 253. Counsel further submits that the  detention order having not been approved by  the  State Government as required under section 3(3) of the Act and the appellant’s case having not been placed before the  Advisory Board  as  required  under section 10  the  detention  order ceased to be in force and hence is liable to be quashed.     Mr. M.S. Ganesh, the learned counsel for the respondents submits  that the detention order having been passed  before the  writ  petition was filed, the High Court was  right  in dismissing  the  same  following the  court’s  practice  and procedure;  and that there were no extraordinary or  special reasons to depart from the normal rule inasmuch as  granting relief at such a stage would defeat the very purpose of  the Act.  Counsel  however, could not deny  that  the  detention order was not approved by the State Government and that  the appellant’s case was not placed before the Advisory Board.     The  first question to be decided therefore, is  whether the  High  Court was right in dismissing the  writ  petition holding that the rule or practice of the High Court in  such

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a case was to interfere only where there were  extraordinary or  special reasons and otherwise to leave the appellant  to first surrender and then move a petition for habeas corpus.     From  a  perusal of the Judgment of the  High  Court  it appears that it analysed the question of maintainability  of the writ petition from two view points, namely, of the  High Court’s  power, and the High Court’s rule or  practice.  The High Court correctly analysed the power of the High Court to interfere in such a case under Article 226 of the  Constitu- tion  of India concluding that the High Court had  power  to interfere.  While tracing the High Court’s evolving rule  or practice, the Bench took the view that it was but  appropri- ate and proper that the 112 court evolved and followed a practice and procedure where it would  not ordinarily entertain a challenge to a  preventive detention  unless the person concerned submitted himself  to the  order and not to encourage persons against whom  orders of preventive detention were made by the competent authority under  a valid enactment to avoid the process of law and  at the  same time seek the protection of law from  this  Court. Relying on several decisions of its own, the Court observed:               "There  is no presumption that any  and  every               order  of  detention is bad. The  normal  rule               shall  therefore  be "surrender to  the  order               first  and then approach this Court." Only  in               extraordinary cases, where it appears that the               State is exercising its power under a  preven-               tive detention statute for an oblique purpose,               or in an outrageous and/or vindictive  manner,               or  where the order of detention is  ex               facie  invalid, would this Court  depart  from               this rule. Now, what would be such  extraordi-               nary  case cannot and, indeed, should  not  be               defined or specified. It is better left to the               sound judgment and decision of this Court."     The  High Court on facts of the appellant’s  writ  peti- tion, observed that the allegations that the entire adminis- trative  machinery  was being misused by the local  MLA  who happened to be a Cabinet Minister to hound the appellant and that the Collector and District Magistrate was being used as a tool were not correct and, therefore, said:               "Once we are of the opinion that there are  no               extraordinary  or  special reasons  to  depart               from the normal rule, we will not look into or               examine  the relevance or correctness  of  the               grounds  as  we would do in a writ  of  habeas               corpus." The writ petition was accordingly dismissed.     Mr. Bhandare submits that when the appellant’s fundamen- tal right to liberty was threatened through the  machination of  a  detention  order, he approached the  High  Court  for protection  and when despite the interim order of  the  High Court  his fundamental right was violated by detaining  him, after serving the order of detention on vague, stale, irrel- evant and non-existent grounds, though he was released after four  days, he ought not to have been denied relief  on  the ground  of there having evolved a practice or  procedure  of the Court not to interfere in such a case except where there were extraordinary or special reasons 113 and  to  leave the appellant to surrender and  then  move  a petition  for habeas corpus. We find force in  this  submis- sion.  As the detention order was already passed and  served and  the  detenu was already taken into custody  during  the

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pendency  of  the  writ petition,  these  subsequent  events having  been brought to the notice of the court by  a  Misc. application in the form of an Additional Affidavit--the same ought to have been dealt with by the High Court.     In Jayantilal Bhagwandas Shah v. The State of  Maharash- tra,  [1981]  1 Crl. L.J. 767, the  challenge  was  directed towards orders of detention passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974,  but the intended detenus under those orders were  not in  detention. The State having raised a preliminary  objec- tion  to the maintainability of the petition on  the  ground that  the habeas corpus jurisdiction under Art. 226  of  the Constitution was exercisable only to examine the legality of a  detention  where there was a detention and  in  no  other case,  a  Division Bench of the Bombay High Court  took  the view  that though the writ of habeas corpus might be  issued only  when there was actual illegal detention, that was  not to  say  that  an illegal order of detention  could  not  be successfully challenged. In para 11 of the report, the Court held:               "Art.  226 is couched in language wide  enough               to  protect a person against an illegal  inva-               sion of his fight to freedom by protecting him               while still free and by regaining his  freedom               for  him  if he has  already  been  wrongfully               detained.  We  cannot countenance and  do  not               accept the Advocate General’s submission  that               the  High Courts are impotent to  give  relief               against the prospect of illegal detention  and               must  first  require the  intended  detenu  to               surrender  to  the illegal detention.  We  are               satisfied  that the High Courts may under  the               provisions  of  Art. 226  issue  a  direction,               order  and  writ  in the  nature  of  mandamus               and/or certiorari quashing an illegal order of               detention and may by direction, order and writ               in the nature of prohibition enjoin the person               threatening the illegal detention from execut-               ing the threat." Accordingly the Court held that it would intervene to strike down  an illegal order of detention. If the court  could  in matters  of personal liberty intervene on the strength of  a mere post-card, they surely could intervene on the  strength of a petition, though they may seek the 114 wrong  relief or be phrased in the wrong form. The  position of a person who is actually under illegal detention and of a person who is in imminent jeopardy of illegal detention  are not far dissimilar. We are inclined to agree with this  view as  we  feel that refusal to interfere in such  a  case  may amount to denial of the fundamental right itself.     A  Full  Bench of the Gujarat High Court  in  Vedprakash Devkinandan Chiripal v. State of Gujarat, since reported  in AIR  1987  Gujarat 253 where the petitioner was said  to  be detained under the provisions of Prevention of  Blackmarket- ing and maintenance of Supply of Essential Commodities  Act, 1980 and the petitioner having absconded, a notification was issued  in  the official gazette as provided  under  section 7(1)(b)  of the said Act and the person moved  the  petition under  Art. 226 of the Constitution of India praying a  writ of  habeas  corpus or a writ of mandamus, the  question  was whether the petition would be maintainable before the detenu had  been  served with order of detention and had  been  de- tained in custody, answered the question in the affirmative. Relying on the decisions in A.K. Gopalan v. State of Madras,

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AIR  1950 SC 27 and Addl. District Magistrate,  Jabalpur  v. Shivakant Shukla, AIR 1976 SC 1207, the Full Bench took  the view  "that before detention, if writ of mandamus  is  moved for  challenging unauthorised detention order which  is  al- ready  passed  on  the ground that the order  is  a  nullity because it is passed (a) by an incompetent person or (b)  it is  a  mala fide order or (c) it is contrary  to  the  legal procedure  prescribed for passing such order, or (d)  it  is otherwise  a  nullity  for any other  reason,  for  example, passed  against a wrong person, it cannot be said that  such challenge would be per se not maintainable." We are inclined to agree inasmuch as it would be a challenge to an  existing order  of detention which is posing an imminent threat to  a fundamental right of the named person guaranteed under  Art. 21.  There  could, therefore, be no reason why  in  such  an exceptional and rare case, detention order already made, and either  served or yet to be served, and the person is  still free could not be legally brought under challenge.     Article  226(1)  of the Constitution of  India  notwith- standing  anything  in Article 32, empowers the  High  Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in  appropriate cases, any Government within those  territo- ries  directions,  orders or writs, including writs  in  the nature of habeas corpus, mandamus, prohibition, quo warranto and  certiorari, or any of them, for the enforcement of  any of  the rights conferred by Part III and for any other  pur- pose; and it also envisages 115 making  of interim orders, whether by way of  injunction  or stay or in any other manner in such a proceeding. Article 21 giving protection of life and personal liberty provides that no person shall be deprived of his life or personal  liberty except  according to procedure established by law.  For  en- forcement of one’s right to life and personal liberty resort to  Article 226(1) has thus been provided for. What  is  the ambit  of enforcement of the right? The  word  ’enforcement’ has  also been used in Article 32 of the Constitution  which provides  the remedy for enforcement of fights conferred  by Part III of the Constitution. The word ’enforcement’ has not been  defined  by  the Constitution.  According  to  Collins English Dictionary to enforce means to ensure observance  of or obedience to a law, decision etc. Enforcement,  according to  Webster’s  Comprehensive Dictionary, means  the  act  of enforcing, or the state of being enforced, compulsory execu- tion; compulsion. Enforce means to compel obedience to laws; to compel performance, obedience by physical or moral force. If enforcement means to impose or compel obedience to law or to  compel  observance of law, we have to see what  it  does precisely  mean. The right to life and personal liberty  has been guaranteed as a fundamental right and for its  enforce- ment one could resort to Article 226 of the Constitution for issuance of appropriate writ,’ order or direction. Precisely at  what stage resort to Article 226 has been  envisaged  in the  Constitution? When a right is so guaranteed, it has  to be understood in relation to its orbit and its infringement. Conferring  the right to life and liberty imposes  a  corre- sponding  duty  on the rest of the  society,  including  the State, to observe that fight, that is to say, not to act  or do  anything  which  would amount to  infringement  of  that right, except in accordance with the procedure prescribed by law.  In  other  words, conferring the fight  on  a  citizen involves the compulsion on the rest of the society,  includ- ing  the State, not to infringe that right. The question  is at what stage the right can be enforced? Does a citizen have

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to  wait  till the right is infringed? Is there  no  way  of enforcement  of the right before it is  actually  infringed? Can the obligation or compulsion on the part of the State to observe the fight be made effective only after the right  is violated  or  in other words can there be enforcement  of  a fight  to  life and personal liberty before it  is  actually infringed?  What  remedy will be left to a person  when  his right to life is violated? When a right is yet to be violat- ed,  but is threatened with violation can the  citizen  move the court for protection of the right? The protection of the right is to be distinguished from its restoration or  remedy after  violation. When right to personal liberty is  guaran- teed  and the rest of the society, including the  State,  is compelled  or  obligated not to violate that right,  and  if someone  has  threatened to violate it or its  violation  is imminent, 116 and the person whose right is so threatened or its violation so  imminent  resorts to Article 226  of  the  Constitution, could  not  the  court protect observance of  his  right  by restraining  those  who threatened to violate it  until  the court examines the legality of the action? Resort to Article 226 after the right to personal liberty is already  violated is different from the pre-violation protection.  Post-viola- tion  resort to Article 226 is for remedy against  violation and  for restoration of the right, while pre-violation  pro- tection  is  by compelling observance of the  obligation  or compulsion under law not to infringe the right by all  those who  are so obligated or compelled. To surrender  and  apply for  a writ of habeas corpus is a post-violation remedy  for restoration of the right which is not the same as  restrain- ing  potential violators in case of threatened violation  of the right. The question may arise what precisely may  amount to threat or imminence of violation. Law surely cannot  take action  for internal thoughts but can act only  after  overt acts. If overt acts towards violation have already been done and the same has come to the knowledge of the person threat- ened  with that violation and he approaches the court  under Art. 226 giving sufficient particulars of proximate  actions as  would imminently lead to violation of right, should  not the court call upon those alleged to have taken those  steps to  appear and show cause why they should not be  restrained from  violating that right? Instead of doing so would it  be the proper course to be adopted to tell the petitioner  that the court cannot take any action towards preventive  justice until  his  right is actually violated whereafter  alone  he could  petition for a writ of habeas corpus? In the  instant case  when  the writ petition was pending in court  and  the appellant’s right to personal liberty happened to be violat- ed  by  taking  him into custody  in  preventive  detention, though  he was released after four days, but could be  taken into  custody  again, would it be proper for  the  court  to reject  the  earlier  writ petition and tell  him  that  his petition  has become infructuous and he had  no  alternative but  to  surrender and then petition for a  writ  of  habeas corpus?  The  difference of the two situations, as  we  have seen,  have difference legal significance. If  a  threatened invasion of a right is removed by restraining the  potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced.  If the right has already been violated,  what  is left  is the remedy against such violation and for  restora- tion of the right.     In K.K. Kochunni v. The State of Madras and Ors., [1959] Suppl. 2 SCR 316, where the grievance of the petitioner  was

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that  the  Madras Marumakkathayam (Removal of  Doubts)  Act, 1955 (Act 32 of 1955), 117 provided  in section 2 of the Act that  notwithstanding  any decision of court any Sthanam which fulfilled the conditions stated  in  the section shall be deemed to be and  shall  be deemed  always  to  have been properties  belonging  to  the tarwad to which the provisions of the Madras Marumakkathayam Act,  1932  shall apply, and thus, unlike  other  Acts  that contemplated  some further action to be taken by  the  State after the enactment had come into force, automatically  took away  or abridged a person’s fundamental right (as right  to property then was) immediately it came into force, a Consti- tution  Bench of this Court speaking through Das  C.J.  held that there was no reason why the aggrieved person should not immediately be entitled to seek the remedy under Art. 32  of the  Constitution.  The argument that an  application  under Art. 32 could not be maintained until the State had taken or threatened  to take any action under the impugned law  which again, if remedy to be taken would infringe the petitioner’s fundamental rights, was negatived by this Court holding that in  cases  arising under those  enactments  the  proprietors could  invoke the jurisdiction of this Court under  Art.  32 when  the  State  did or threatened to  do  the  overt  act, (emphasis supplied). It was observed that quite  conceivably an  enactment may immediately on its coming into force  take away  or abridge the fundamental rights of a person  by  its very terms and without any further overt act being done. The impugned  Act was said to be an instance of such  enactment. In such a case, it was held, the infringement of the  funda- mental  right  was complete eo instanti the passing  of  the enactment  and, therefore, there could be no reason why  the person  so prejudicially affected by the law should  not  be entitled immediately to avail himself of the  constitutional remedy under Art. 32. It was also observed that to say  that a person, whose fundamental right had been infringed by  the mere  operation of an enactment, was not entitled to  invoke the  jurisdiction of this Court under Art. 32, for  the  en- forcement  of  his fight would be to deny the benefit  of  a salutary  constitutional remedy which was itself his  funda- mental right. The same reasoning is applicable to the  facts of  the  instant case inasmuch as the  detention  order  was already  passed  and served and the  appellant  was  already taken  into  custody and though released after  4  days  the Government  could at any time cancel his release under  sec- tion 15 of the Act.     In  the Special Reference No. 1 of 1964, reported  in  [ 1965]  1  SCR 413 the Constitution  Bench  speaking  through Gajendragadkar, C.J. held (at page 493):               "If  a citizen moves this Court and  complains               that  his fundamental fight under Art. 21  had               been contravened, it would               118               plainy  be the duty of this Court  to  examine               the  merits of the said contention,  and  that               inevitably  raises the question as to  whether               the  personal liberty of the citizen has  been               taken  away according to the procedure  estab-               lished  by  law. In fact,  this  question  was               actually considered by this Court in the  case               of Pandit Sharma, [1959] Supp. 1 SCR 806." The same law applies to a High Court moved under Article 226 of the Constitution of India against similar contravention.     In  M.C. Mehta v. Union of India, [1987] 1 SCC 395,  the Constitution Bench speaking through Bhagwati, C.J. said:

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                  "We are also of the view that this  Court               under  Article  32(1) is free  to  devise  any               procedure   appropriate  for  the   particular               purpose of the proceeding, namely, enforcement               of  a  fundamental  right  and  under  Article               32(2),  the Court has      the implicit  power               to   issue   whatever  direction,   order   or               writ  is necessary in a given case,  including               all incidental or ancillary power necessary to               secure  enforcement  of  the       fundamental               right.  The  Power of the Court  is  not  only               injunctive  in ambit, that is, preventing  the               infringement of               a  fundamental right, but it is also  remedial               in  scope and      provides relief  against  a               breach  of the fundamental right       already               committed vide Bandhua Mukti Morcha case. 1984               2 SCR 67. If the court were powerless to issue               any direction, order or writ in cases where  a               fundamental  right has      already been  vio-               lated,  Article 32 would be robbed of all  its               efficacy, because then the situation would  be               that if a      fundamental right is threatened               to  be  violated, the court       can  injunct               such  violation but if the violator  is  quick               enough to take action infringing the fundamen-               tal  right, he      would escape from the  net               of  Article  32. That would, to  a       large               extent,   emasculate  the  fundamental   right               guaranteed      under Article 32 and render it               impotent and futile."     "Despite the power of the State" says Jean Dabin, "there are  always  smart people who contrive to violate  the  laws without  incurring  the rigours of  compulsion;  or,  again, certain rules are psychologically or technically awkward  to apply,  so that the machinery of compulsion lends  them  but insufficient  aid. In any case, actual inefficacy  or  impo- tence of compulsion can affect the validity of the rule even less  than disobedience; that validity binds, and  continues to bind, by virtue of 119 the very disposition made by the rule."     Analytical positivist concept of right has been  differ- ently  analysed. Hohfeld writing on fundamental  legal  con- cepts as applied in judicial reasoning analysis four  ideas. One  of  those is that a right may be claim-right. P  has  a right to do X, it means to indicate that Q or everyone  else has a duty to let P do X. The existence of such a duty gives P  some sort of claim against Q. Claim-rights may be  either in personam or in rem. A claim-right in personam  co-relates to  a duty of a person, while claim-rights in rem  co-relate to  duties in principle incumbent on everyone. A  right  en- joyed  by one thus co-relates to a duty on the part of  oth- ers.     In  Hans  Kelsen’s analysis it is usual  to  oppose  the concept  of right to the concept of obligation and  to  cede priority  of  rank to the former as we speak of  rights  and duties. The behaviour of one individual that corresponds  to the  obligated behaviour of the other is usually  designated as  a  content of a ’right’-as an object of a  ’claim’  that corresponds  to  the obligation. "The behaviour of  the  one individual  that corresponds to the obligated  behaviour  of the other, particularly the claiming of the obligated  beha- viour,  is designated as exercising a right." In case of  an obligation  to tolerate something, the behaviour of the  one

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corresponding to the obligation of the other is spoken of as ’enjoyment’ of the right. According to Kelsen the ’right’ or a ’claim’ of an individual, is merely the obligation of  the other individual or individuals. When we speak of a right as a  legally  protected interest, in the words of  Kelsen,  it refers  to  a right as the "reflex of a  legal  obligation". Right is often understood as a will power conferred by  law. A  ’right’ in the sense is present if the conditions of  the sanction  that  constitutes a legal  obligation  includes  a motion,  normally of the individual in relation to whom  the obligation  exists; the motion is aimed at the execution  of the  sanction  and has the form of a  legal  action  brought before the law applying organ. Then this organ may apply the general norm to effectuate the fight, which is the reflex of the  legal obligation by executing the sanction.  The  right which is the reflex of legal obligation is equipped with the legal  power of the entitled individual to bring about by  a legal  action  the  execution of a sanction  as  a  reaction against the non-fulfilment of the obligation whose reflex is his right; or as it is sometimes called, the enforcement  of the fulfilment of this obligation. To make use of this legal power of motion is exercise of the right. In this sense each right of an individual contains a claim to the behaviour  of another  individual-namely  to that behaviour to  which  the second  individual is obligated toward the first; the  beha- viour that constitutes 120 the  content  of  the legal obligation  identical  with  the reflex right. If an individual, towards which another  indi- vidual  is obligated to a certain behaviour, does  not  have the legal power to bring about by a legal action the  execu- tion of a sanction as a reaction against the  non-fulfilment of the obligation, then the act by which he demands  fulfil- ment of the obligation has no specific legal effect; the act is legally irrelevant, except for not being legally  prohib- ited.  Therefore, a ’claim’ as legally effective act  exists only  when a law exists, which means that an individual  has the legal power. The subject of a right may be not only  one individual  but  two or several individuals,  including  the State.     In the language of Kelsen the right of an individual  is either a mere reflex right--the reflex of a legal obligation existing towards this individual; or a private right in  the technical sense--the legal power bestowed upon an individual to  bring about by legal action the enforcement of the  ful- filment  of an obligation existing toward him, that is,  the legal power. From the above analysis it is clear that in the instant case the appellant’s fundamental right to liberty is the reflex of a legal obligation of the rest of the society, including  the State, and it is the appellant’s legal  power bestowed  upon  him  to bring about by a  legal  action  the enforcement  of the fulfilment of that  obligation  existing towards  him. Denial of the legal action  would,  therefore, amount to denial of his right of enforcement of his right to liberty. A petition for a writ of habeas corpus would not be a substitute for this enforcement.     We,  therefore, proceed to consider the merits  of  this case instead of remanding to the High Court to avoid further delay.     Mr.  Bhandare’s submission is that the  detention  order having not been approved by the State Government under  sub- section (3) of section 3 it had ceased to be in force  after 12 days of its being made. We find force in this  submission on the facts of the case. Section 3 of the Act provides  the power  to  make detention orders.  Sub-section  (1)  thereof

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empowers  the  State Government to make a  detention  order. Sub-section (2) empowers the State Government to authorise a District Magistrate or a Commissioner of Police to  exercise the  powers conferred by sub-section (1) during such  period as may be specified in the order not exceeding three  months at the first instance with power to extend such period  from time to time by any period not exceeding three months at any one  time.  Admittedly,  the impugned  detention  order  was passed  by  the District Magistrate in  exercise  of  powers under section 2. Sub-section (3) is to the following effect: 121               "When any order is made under this section  by               an  officer mentioned in sub-section  (2),  he               shall forthwith report the fact to the Govern-               ment  together with the grounds on  which  the               order has been made and such other particulars               as  in  his  opinion, have a  bearing  on  the               matter,  and  no such order  shall  remain  in               force  for  more than twelve  days  after  the               making  thereof, unless, in the  meantime,  it               has been approved by the Government."     Examining the records we find that before the High Court in  the  Misc.  case W.P.M.P.S.R. 51830 in the  form  of  an Additional Affidavit at para 11 it was urged:               "Apart from the infirmities stated above which               vitiate  the order, statutory  requirement  of               reporting  to  the  Government  and  obtaining               approval  of  the Government within  the  pre-               scribed time has not been complied with."     In  the  counter affidavit filed by  the  Collector  and District  Magistrate in the High Court to the writ  petition as  well as the W.P.M.P., there was no reply to para  11  of the  W.P.M.P. and it was nowhere stated that  the  detention order was approved by the State Government. In this Court in the Special Leave Petition Ground No. V is as follows:               "The  Hon’ble  High  Court has  erred  in  not               noting the infirmity in the order of detention               inasmuch  as the approval of State  Government               of Andhra Pradesh for the order of the  deten-               tion made by the District Magistrate, Cuddapah               was not obtained within the period of 12  days               as enjoined under sub-section (3) of section 3               of the Act. The order is therefore non est  in               law."     In  the Counter Affidavit of the Collector and  District Magistrate  there was not even a whisper in denial  of  this fact.     The  learned counsel for the respondents at the  heating could  not deny before us that the detention order  had  not been  approved  by  the Government within 12  days.  On  his request  time was granted to produce materials. He  has  now filed  reply affidavit on behalf of the respondents  to  the rejoinder  affidavit filed by the appellant.  Scanning  this affidavit also we do not find any statement that the  deten- tion order was approved. Though the learned counsel  submits that it was 122 approved, in view of the above affidavits it cannot be acted upon. We have, therefore, no other alternative than to  hold that the detention order had not been approved by the  State Government  within 12 days of its being made. The result  is that  the order could not claim in force more than  12  days after making thereof and as such must be treated as to  have ceased to be in force and non-existent thereafter.     Mr. Bhandare then submits that the case of the appellant

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was not at all referred to the Advisory Board under  section 10  of the Act. This too has not been denied by the  learned counsel for the respondents. Section 10 of the Act  provides for reference to the Advisory Board and says:               "In  every  case where a detention  order  has               been made under this Act, the Government shall               within three weeks from the date of  detention               of a person under the order, place before  the               Advisory  Board  constituted  by  them   under               section 9, the grounds on which the order  has               been made and the representation, if any, made               by  the person affected by the order,  and  in               the  case where the order has been made by  an               officer, also the report by such officer under               sub-section (3) of section 3."     Section  11 of the Act prescribes the procedure for  the Advisory Board. Under sub-section (1) of section 12, in  any case where the Advisory Board has reported that there is, in his opinion sufficient cause for the detention of a  person, the Government may confirm the detention order and  continue the  detention of person concerned for such period  not  ex- ceeding  the maximum period specified in section 13 as  they think  fit. Under sub-section (2) thereof in any case  where the Advisory Board has reported that there is, in his  opin- ion,  no  sufficient cause for the detention of  the  person concerned,  the Government shall revoke the detention  order and cause the person to be released forthwith. Thus  section 10 makes it mandatory for the Government to place the ground on which the order has been made and the representation,  if any made by the person affected by the order and in the case where the order has been made by an officer also the  report by officer under sub-section (3) of section 3. This  section prescribes  a period of 3 weeks from the date  of  detention irrespective of whether the person continues to be in deten- tion or not. Therefore, even though the detenu was released, if  the detention order was in force, his case was  required to be placed before the Advisory Board. This being a  manda- tory provision and having not been complied with the  deten- tion order even if 123 otherwise  it was in force, cannot be said to have  been  in force  after three weeks. Under Article 22 of the  Constitu- tion  of India a person cannot be kept in  detention  beyond three months without referring his case to an Advisory Board under  the appropriate law. In either case  the  appellant’s case  having  not  been referred to an  Advisory  Board  the detention  order  cannot be said to have remained  in  force after the statutory period. It is, therefore, not  necessary to  go  into  the validity or otherwise of  the  grounds  of detention.     In the result we set aside the impugned Judgment of  the High Court and hold that the detention order ceased to be in force after 12 days of making thereof and even if it was  in force  it  ceased to be in force for failure  to  refer  the appellant’s  case  to Advisory Board within  the  time  pre- scribed  by  law;  and accordingly we quash  the  same.  The appeal is accordingly allowed.     After  the Judgment was finalised, another affidavit  on behalf  of the respondents affirmed by one belonging to  the office  of the Advocate-on-Record has been circulated.  This affidavit  is  not acceptable. Even if it  was  accepted  it would not affect the ultimate legal position. R.S.S.                                 Appeal allowed. 124

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