STATE OF WEST BENGAL Vs. ASHOK DEY

JUDGEMENT

(1.) These appeals have been presented to this Court pursuant to certificate of fitness granted by the Calcutta High Court under Article 132 (1) of the Constitution from a common judgment of that Court allowing 17 Writ Petitions presented on behalf of the persons detained under the West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act 19 of 1970) (hereinafter called the Act). In the High Court the constitutional validity of the Act was challenged on the grounds - (1) that it was not a law made by Parliament as contemplated by Article 22 (7) of the Constitution with the result that the extension of the detention for a period longer than three months was unconstitutional. Sections 10 to 13 of the Act were described as violative of Article 22 (4) and (7) of the Constitution; (2) that the restrictions both in respect of substantive law and in respect of procedure imposed by the Act on detenus' right guaranted by Article 19 (1) (d) were unreasonable and, therefore, the Act was unconstitutional; and (3) that the Act was violative of Article 14 of the Constitution inasmuch as it gave arbitrary, unguided and uncanalised power to the State Executive without prescribing any guidelines for its exercise.

(2.) The High Court held that the Act was not a law made by Parliament in terms of Article 22 (7) of the Constitution. This conclusion is not questioned by the learned Attorney General before us and indeed he has conceded that the Act is not a law made by Parliament as contemplated by Article 22 (7). The High Court then considered the question of the effect of the Act, if it is to be deemed to be an Act passed by the West Bengal Legislature. On this point it came to the conclusion that the provisions contained in Sections 11 and 13 of the Act relating to the procedure before the Advisory Board in respect of the person detained for a longer period than three months was ultra vires Art. 22 (7) of the Constitution because under the said Article, Parliament alone has been invested with jurisdiction to legislate on these matters. The State Legislature was accordingly held to be incompetent to make a law prescribing procedure for the Advisory Board and also to make a law providing for detention for more than three months. On the question of applicability of Article 19 (1) the High Court came to the conclusion that it was not applicable to the impugned Act and, therefore, the Act could not be struck down as violative Art. 19 (1) (d) or under any other clause of Art. 19 (1). The challenge on the basis of Article 14 of the Constitution was also repelled as the classification contemplated by the Act could by no means be considered unreasonable. In the final result on the ground of invalidity of Sections 11 and 13 the Writ petition was allowed with respect to the detention of the detenus beyond the period of three months.

(3.) In this Court the learned Attorney General has concentrated his attack on the impugned judgment on the argument that Article 22 (7) of the Constitution does not confer exclusive jurisdiction on the Parliament to make a law for valid detention of persons for a period longer than three months and that the State Legislature is fully competent, to make laws for detention, to prescribe procedure for the Advisory Board and also to make law for detention for more than three months.