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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: PRABHAKAR PANDURANG SANGZGIRI AND ANOTHER

DATE OF JUDGMENT: 06/09/1965

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. WANCHOO, K.N. SHAH, J.C. SIKRI, S.M. RAMASWAMI, V.

CITATION:  1966 AIR  424            1966 SCR  (1) 702  CITATOR INFO :  R          1974 SC2092  (7)  RF         1976 SC1207  (48,49,144,360,475,547)  R          1977 SC1027  (23,33)  RF         1981 SC 746  (4)  RF         1981 SC1675  (57)  RF         1983 SC 361  ((2)18)  RF         1983 SC 465  (5,16,17)  RF         1985 SC 231  (2,3)

ACT: Defence  of India Rules, 1962, sub-r. 4 of r. 30 and  Bombay Conditions  of Detention Order, 1951-Book written by  detenu in jail-Request to send it out of jail for publication-State Government  whether can refuse request -High  Court  whether can he moved under Constitution of India, Art. 226.

HEADNOTE: The  first  respondent  was detained by  the  Government  of Maharashtra  under  r.  30(1) (b) of the  Defence  of  India Rules,  1962.  The conditions of detention under sub-rule  4 of  r. 30 of -the said rules were prescribed to be the  same as  those  under the Bombay Conditions of  Detention  Order, 1951.   While so detained the first respondent wrote a  book of scientific interest and sought permission from The  State Government  to  send it out of jail  for  publication.   The request having been rejected he filed a writ petition  under Art. 226 of the Constitution praying for a direction to  the State  Government to permit him to send out  the  manuscript for  Publication.  The High Court held that The book was  in no way prejudicial to the defence of India etc., and allowed the  petition.   The  State  Government  by  special   leave appealed to this Court. It was contended on behalf of the, appellant that the  first respondent not being a free person could exercise only  such privileges  a,-,  were  conferred on him  by  the  order  of detention,  and  the Bombay Conditions of  Detention  Order, 1951 which regulated the terms of the respondent’s detention did not confer on him any privilege or right to write a book and send it out of the prison for publication.

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HELD  : (i) It cannot be said that the Bombay Conditions  of Detention  Order,  1951  which  lays  down  the   conditions regulating  the  restrictions on the liberty  of  a  detenu, conferred  only  certain privileges on the detenu.  If  this argument  were to be accepted it would mean that the  detenu could  be  starved  to  death, if  there  was  no  condition providing  for giving food to the detenu.  In the matter  of liberty of a subject such a construction shall not be  given to  the  said rules and regulations  unless  for  compelling reasons. [7O8 C-D] (ii) The  said conditions regulating the restriction on  the personal liberty of a detenu are not privileges conferred on him, but are the conditions subject to which his liberty can be  restricted.   As  there is no condition  in  the  Bombay Conditions  of Detention Order, 1951, prohibiting  a  detenu from writing a book or sending it for publication, the State of  Maharashtra in refusing to allow the same infringed  the personal  liberty of the first Respondent in  derogation  of the law whereunder he was detained. [708 E] (iii)     The effect of the President’s order under Art. 359 of  the  Constitution was that the right to  move  the  High Court  or  the Supreme Court remained suspended  during  the period of emergency if a person was deprived of his personal liberty under the Defence of India Act, 1962, or any rule or order  made  thereunder.  If a person was  deprived  of  his personal  liberty  not under the Act or rule or  order  made thereunder  but in contravention thereof his right  to  move the said courts in that regard would not be suspended.  [705 C-D] 703 Since the State Government’s refusal to allow publication of the  first  respondent’s  book  was  in  contravention   and derogation  of the ’law under which he was detained  he  had the right to move the High Court under Art. 226 and the said High  Court  was empowered to issue an appropriate  writ  or direction  to the said Government to act in accordance  with law.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 107  of 1965. Appeal  by special leave from the judgment and order,  dated June 22, 1965 of the Bombay High Court in Criminal  Applica- tion No. 613 of 1965. Niren  De,  Additional  Solicitor-General and B.  R.  G.  K. Achar, for the appellant. R.   K. Garg, D. P. Singh, M. K. Ramamurthi and S. C.  Agar- wala for respondent No. 1. The Judgment of the Court was delivered by Subba  Rao  J. Prabbakar Pandurang Sanzgiri,  who  has  been detained by the Government of Maharashtra under S.  30(1)(b) of the Defence of India Rules, 1962, in the Bombay  District Prison in order to prevent him from acting in a manner  pre- judicial  to  the  defence  of  India,  public  safety   and maintenance$   of  public  order,  has  written,  with   the permission  of the said Government, a book in Marathi  under the  title  "Anucha  Antarangaat" (Inside  the  Atom).   The learned  Judges of the High Court, who had gone through  the table  of contents of the book. expressed their  opinion  on the book thus :               "............   we  are  satisfied  that   the               manuscript  book  deals  with  the  theory  of               elementary  particles  in -in  objective  way.

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             The  manuscript  does  not  purport  to  be  a               research  work  but it purports to be  a  book               written with a view to educate the people  and               disseminate   knowledge   regarding    quantum               theory." The book is, therefore, purely of scientific interest and it cannot possibly cause any prejudice to the defence of India, public safety or maintenance of public order.  In September, 1964,  the detenu applied to the Government  of  Maharashtra seeking  permission to send the manuscript out of  the  jail for  publication;  but the Government by its  letter,  dated March  27, 1965, rejected the request.  He again applied  to the  Superintendent, Arthur Road Prison, for  permission  to send   the  manuscript  out  and  that  too  was   rejected. Thereafter,  he  filed  a petition under  Art.  226  of  the Constitution in the High Court of Maharashtra at Bombay 704 for directing the State of Maharashtra to permit him to send out  the  manuscript  of the book written  by  him  for  its eventual publication.  The Government of Maharashtra in  the counter-affidavit did not allege that the publication of the said book would be prejudicial to the objects of the Defence of  India  Act,  but averred that  the  Government  was  not required by law to permit the detenu to publish books  while in detention.  The High Court of Bombay held that the  civil rights  and liberties of a citizen were in no way curbed  by the  order of detention and that it was always open  to  the detenu  to  carry on his activities  within  the  conditions governing his detention.  It further held that there were no rules  prohibiting a detenu from sending a book outside  the jail with a view to get it published.  In that view the High Court  directed the Government to allow the manuscript  book to  be  sent  by the detenu to his  wife  for  its  eventual publication.   The  State of Maharashtra has  preferred  the present appeal against the said order of the High Court. The contentions of the learned Additional Solicitor  General may  be briefly stated thus : When a person is  detained  he loses  his  freedom;  he  is  no  longer  a  free  man  and, therefore,  he  can  exercise only such  privileges  as  are conferred  on  him by the order of  detention.   The  Bombay Conditions  of  Detention Order, 1951. which  regulates  the terms  of the first respondent’s detention, does not  confer on him any privilege or right to write a book and send it   out of the prison for publication.  In support of his contention he   relies  upon  the observations of Das, J., as  he  then was, in A.     K. Gopalan v. State of Madras(1) wherein  the learned  Judge  has expressed the view, in  the  context  of fundamental  rights, that if a citizen loses the freedom  of his person by reason of a lawful detention, he cannot  claim the  rights under Art. 19 of the Constitution as the  rights enshrined  in the said article are only the attributes of  a free man. Mr.  Garg, learned counsel for the detenu, raised before  us the  following two points : (1) a restriction of the  nature imposed by the Government on the detenu can only be made  by an order issued by the appropriate Government under cls. (f) and  (h)  of  sub-r. (1) of r. 30 of the  Defence  of  India Rules,  1962, hereinafter called the Rules, and that too  in strict  compliance with s. 44 of the Defence of  India  Act, 1962,  hereinafter called the Act, and that as the  impugned restriction  was  neither made by such an order nor  did  it comply with s. 44 of the Act, it was an illegal  restriction on his personal liberty; and (2) neither the detention order nor the (1)  [1950] S.C.R. 88, 291.

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705 conditions   of   detention   which   governed   the   first respondent’s detention enabled the Government to prevent the said respondent from sending his manuscript book out of  the prison  for  publication and, therefore, the  order  of  the Government  rejecting the said respondent’s request in  that regard was illegal. Article  358 of the Constitution suspends the provisions  of Art.  19 of Part III of the Constitution during  the  period the proclamation of emergency is in operation; and the order passed  by  the  President under Art. 3 5  9  suspended  the enforcement, inter alia, of Art. 21 during the period of the said emergency.  But the President’s order was a conditional one.   In  effect it said that the right to  move  the  High Court  or  the Supreme Court remained suspended  if  such  a person  had been deprived of his personal liberty under  the Defence  of  India  Act, 1962, or any  rule  or  order  made thereunder.   If  a  person was de  lived  of  his  personal liberty not under the Act or a rule or order made thereunder but  in  contravention thereof, his right to move  the  said Courts in that regard would not be suspended.  The question, therefore.  in this case is whether the  first  respondent’s liberty has been restricted in terms of the Defence of India Rules   whereunder   he  was  detained.   If   it   was   in contravention of the said Rules, he would have the right  to approach the High Court under Art. 226 of the Constitution. In exercise of the Dower conferred on the Central Government by s. 3 of the Act, the Central Government made the  Defence of  India  Rules.   Under s. 30 of  the  Rules  the  Central Government or the State Government, if it is satisfied  with respect  to  any person that in order to  prevent  him  from acting  in any manner prejudicial to the  matters  mentioned therein,  it  is  necessary  so to do,  may  make  an  order directing  that  he be detained.  Under subr. 4  thereof  he shall be liable to be detained in such place and under  such conditions as to maintenance, discipline and the  punishment of the offence and the breaches of discipline as the Central Government or the State Government, as the case may be,  may from time to time determine.  In exercise of the power  con- ferred  under  sub-r.  (4)  of  r.  30  of  the  Rules,  the Government of. Maharashtra determined that the conditions as to  maintenance, discipline and the punishment  of  offenses and  breaches of discipline governing persons ordered to  be detained in any place in the State of Maharashtra, shall  be the  same  as those contained in the  Bombay  Conditions  of Detention  Order, 1951.  The Bombay Conditions of  Detention Order,  1951, does not contain any condition as regards  the writing of books by a detenu or sending them out of jail for publication.  Briefly stated, the scheme of the said p.   C. and I./65-2 706 provisions  is  that  a  person  can  be  detained  if   the appropriate Government is satisfied that in order to prevent him  from doing the prejudicial acts mentioned in r.  30  of the Rules it is necessary to detain him in prison subject to the  conditions imposed in the manner prescribed  in  sub-r. (4) of r. 30 of the Rules.  To put it in a negative form, no restrictions other than those prescribed under sub-r. (4) of r.  30  can  be imposed on a  detenu.   If  the  appropriate authority  seeks to impose on a detenu a restriction not  so prescribed, the said authority will be interfering with  the personal  liberty  of the detenu in derogation  of  the  law whereunder he is detained.  If that happens, the High Court, in  terms  of  Art 226 of the  Constitution,  can  issue  an appropriate writ or direction to the authority concerned  to

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act in accordance with law. We have gone through the provisions of the Bombay Conditions of  Detention  Order, 195 1. There is no provision  in  that Order dealing with the writing or publication of books by  a detenu.   There is, therefore, no restriction on the  detenu in respect of that activity.  Sub-rule (iii) of r. 17 of the said Order reads               "All  letters to and from  security  prisoners               shall  be censored by the Commissioner or  the               Superintendent, a% the case may be.  If in the               opinion    of   the   Commissioner   or    the               Superintendent,  the dispatch or  delivery  of               any letter is likely to be detrimental to  the               public interest or safety or the discipline of               the  place  of  detention,  he  shall   either               withhold  such letter, or despatch or  deliver               it  after deleting any  objectionable  portion               therefrom.   In  respect of the  censoring  of               letters    of    security    prisoners,    the               Commissioner   or  the  Superintendent   shall               comply    with   any   general   or    special               instructions issued by Government." The  Maharashtra Government has not relied upon  this  rule. In  deed, in the counter-affidavit its case was not that  it prohibited the sending of the book for publication under the said sub-rule, but that it was not required by law to permit the  detenu to publish books while in detention; nor was  it its case before the High Court that the publication of  this book  was  detrimental to public interest or safety  or  the discipline of the place of detention.  Prima facie the  said sub-rule applies only to letters to and from security priso- ners  and does not regulate the sending out of prison  books for  publication.  Indeed, the learned Additional  Solicitor General does not rely upon this provision. 707 Let  us  now consider the validity of the  argument  of  the learned  Additional Solicitor General.  He relies  upon  the following observations of Das, J., as he then was, in A.  K. Gopalan’s case(1), at p. 29 1.               "If  a  man’s person is free, it is  then  and               then  only that he can exercise a  variety  of               other  auxiliary  rights, that is to  say,  he               can,  within  certain limits,  speak  what  he               likes,  assemble  where  he  likes,  form  any               associations  or unions, move about freely  as               his  ’own inclination may direct,’ reside  and               settle  anywhere  he likes  and  practise  any               profession  or carry on any occupation,  trade               or  business.   These are  attributes  of  the               freedom  of the per-son and  are  consequently               attached to the person."’ Relying upon these observations it is argued that freedom to publish  is  only  a component part of that  of  speech  and expression  and that in the light of the said  observations, as  the detenu ceased’ to be free in view of his  detention, he  cannot  exercise his freedom to publish  his  book.   In other  words,  as he is no longer a free man, his  right  to publish  his  book, which is only an attribute  of  personal liberty, is lost.  The principle accepted by Das, J., as  he then was, does not appear to be the basis of the  conclusion arrived  at by the other learned Judges who agreed with  his conclusion.   Different  reasons are given  by  the  learned Judges  fro  arriving at the same conclusion.  As  has  been pointed  out by this Court in the second Kochunni’s  case(2) the  views of the learned Judges may be  broadly  summarized

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under the following heads : (1) to invoke Art. 19(1) of  the Constitution,  a law shall be made directly infringing  that right; (2) Arts. 21 and 22 constitute a self-contained code; and  (3)  the  freedoms in Art. 19  postulate  a  free  man. Therefore,  it  cannot be said that the said  principle  was accepted  by all the learned Judges who took part in  A.  K. Gopalan’s case(").  The apart, there are five distinct lines of  thought in the matter of reconciling Art. 21  with  Art. 19,  namely, (1) if one loses his freedom by  detention,  he loses all the other attributes of freedom enshrined in  Art. 19;  (2)  personal  liberty in Art. 21  is  the  residue  of personal  liberty  after excluding the  attributes  of  that liberty  embodied  in  Art. 19;  (3)  the  personal  liberty included in Art. 21 is wide enough to include some or all of the freedoms mentioned in Art. 19, but they are two distinct fundamental  rights  -a law to be valid shall  not  infringe both the rights; (4) the expression "law" in Art. 21 means a valid  law  and, therefore, even if a  person’s  liberty  is deprived by law of detention, the said law (1) [1950] S.C.R. 88. (2) [1960] 3 S.C.R. 887. 708 shall  not  infringe  Art. 19; and (5) Art.  21  applies  to procedural law, whereas Art. 19 to substantive law  relating to personal liberty.  We do not propose to pursue the matter further or to express our opinion one way or other.  We have only  mentioned  the  said  views  to  show  that  the  view expressed  by  Das, J., as he then was, in A.  K.  Gopalan’s case(1) is not the last word on the subject. In this case, as we have said earlier, we are only concerned with  the  question whether the restriction imposed  on  the personal liberty of the first respondent is in terms of  the relevant  provisions of the Defence of India  Rules.   Here, the  first  respondent’s  liberty is  restricted  under  the Defence of India Rule’s subject to conditions determined  in the  manner prescribed in Sub-r. (4) of r. 30  thereof.   We find  it  difficult to accept the argument that  the  Bombay Conditions  of  Detention Order, 1951, which lays  down  the conditions  regulating the restrictions on the liberty of  a detenu, conferred only certain privileges on the detenu.  If this  argument were to be accepted, it would mean  that  the detenu could be starved to death, if there was no  condition providing  for giving food to the detenu.  In the matter  of liberty of a subject such a construction shall not be  given to  the  said rules and regulations, unless  for  compelling reasons.   We,  therefore,  hold that  the  said  conditions regulating  the  restrictions on the personal liberty  of  a detenu  arc  not privileges conferred on him,  but  are  the conditions  subject to which his liberty can be  restricted. As  there  is  no  condition in  the  Bombay  Conditions  of Detention  Order, 1951, prohibiting a detenu from writing  a book or sending it for publication, the State of Maharashtra infringed  the personal liberty of the first  respondent  in derogation of the law whereunder he is detained. The appellant, therefore, acted contrary to law in  refusing to send the manuscript book of the detenu out of the jail to his wife for eventual publication. In the view we have taken, another argument advanced by  Mr. Garg, namely, that the restriction can only be imposed by an order made under s. 30 (f) or (h) of the Rules and that  too in  strict  compliance  with s. 44 of the Act  need  not  be considered.   That  question  may  arise  if  and  when   an appropriate condition is imposed restricting the liberty  of a detenu in the matter of sending his books for publication. We  do  not  express our view on this question  one  way  or

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other. In  the  result,  the  order passed by  the  High  Court  is correct. The appeal fails and is dismissed. Appeal dismissed. (1)  [1950] S.C.R. 88. 709