JOHN MARTIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner in this petition seeks a writ of habeas corpus challenging the validity of his detention under an order made by the District Magistrate, Burdwan under sub-section (1) read with sub-section (2) of S. 3 of the Maintenance of Internal Security Act, 1971. The order of detention was made on 10th July, 1973 on the ground that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. Pursuant to the order of detention the petitioner was arrested on 24th August, 1973 and immediately on his arrest he was served with the grounds of detention. There were two incidents referred to in the grounds of detention as forming the basis for arriving at the subjective satisfaction on the part of the District Magistrate and they were as follows:

(2.) There were several contentions urged by Mr. R. K. Jain, learned Advocate appearing on behalf of the petitioner amicus curiae against the validity of the order of detention and we shall deal with them in the order in, which they were urged. But before we do so, we may point out that there was one contention sought to be raised by Mr. R. K. Jain on behalf of the petitioner which we did not allow to be urged. That was that the power conferred by Section 13 of the Act to detain a person for a period of twelve months or until the cessation of the emergency whichever is longer was violative of Article 19 of the Constitution and, in any event, the continuance of the emergency was male fide and the period of twelve months having elapsed from the date of detention, the petitioner was entitled to be set free. We did not permit Mr. R. K. Jain to raise this contention on behalf of the petitioner inasmuch as it involved a question as to the validity of a provision of the Act and the legality of the continuance of the. emergency and this question could not be properly determined unless there was an adequate plea to that effect and the Central Government had an opportunity of meeting such plea by filing an affidavit and notice was also given to the Attorney General to enable him to make his submissions on this question. We would, therefore, confine ourselves only to the other contentions raised by Mr. R. K. Jain on behalf of the petitioner.

(3.) The first contention urged by Mr. R. K. Jain on behalf of the petitioner was that the representation of the petitioner ought to have been considered by an impartial tribunal constituted by the State Government and it was not sufficient compliance with the requirement of Article 22, clause (5) that it should have been considered only by the State Government This contention was sought to be supported by reference to certain observations of Fazl Ali, J., and Mahajan J., in A. K. Gopalan v. State of Madras, (1950) SCR 88. Now it is true that Fazl Ali, J. Observed in this case that "the right to make a representation which has been granted under the Constitution must carry with it the right to the representation being properly considered by an impartial person or persons.... the constitution of an Advisory Board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day", and Mahajan, J., also said:"the right has been conferred to enable a detained person to prove his innocence and to secure justice, and no justice can be said to be secured unless the representation is considered by some impartial person it follows that no justice can be held secured to him unless an unbiased person considers the merits of his representation on and gives his opinion on the guilt or innocence of the person detained. In my opinion the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation with an unbiased mind and will render justice. That would in a way make the prosecutor a judge in the case and such a procedure is repugnant to all notions of justice." But we do not think that these observations made by two out of six learned Judges can be regarded as laying down the law on the point. Since A. K. Gopalan's case (supra) there has been a long catena of decisions of this Court where the view has consistently been taken that the representation of the detenu must be considered by the State Government. Article 22, clause (5) provides inter alia that the authority making the order of detention shall afford the detenu the earliest opportunity of making a representation against the order of detention. It does not say as to which is the authority to which the representation shall be made or which authority shall consider it. But Section 8, sub-section (1) of the Act lays down in the clearest terms which admit of no doubt that the opportunity which is to be afforded to the detenu is to make a representation against the order of detention to the appropriate Government. Therefore, it is indisputable on a plain reading of Section 8, sub-section (1) that the representation that may be made by the detenu is to the appropriate Government and it is the appropriate Government which has to consider the representation. This Court, speaking through Ray, J., (as he then was), affirmed this position in Jayanarayan Sukul v. State of West Bengal, (1970) 3 SCR 225 and pointed out inter alia that "the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board." So also in Haradhan Saha v. State of West Bengal, W. P. No. 1994 of 1973 decided on 21-8-1974 this Court, speaking through Ray, C. J., observed that "there is an obligation on the State to consider the representation ....... Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22 (5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law..........the order of the Government rejecting the representation of the detenu must be after proper consideration. It may be pointed out that both the decisions in Jayanarayan Sukul's case (supra) and Haradhan Saha's case (supra) were decisions rendered by a Bench of five judges. We must, therefore, hold that under Section 8 (1) of the Act, it is the appropriate Government that is required to consider the representation of the detenu. This, however, does not mean that the appropriate Government can reject the representation of the detenu in a casual or mechanical manner. The appropriate Government must bring to bear on the consideration of the representation an unbiased mind. There should be, as pointed out by this Court in Haradhan Saha's case (supra), "a real and proper consideration" of the representation by the appropriate Government. We cannot over-emphasise the need for the closest and most zealous scrutiny of the representation for the purpose of decidmg whether the detention of the petitioner is justified.