BHARTI NAYYAR Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution is by the wife of Shri Kuldip Nayyar (hereafter referred to as the detenu) for quashing the order of detention dated 24-7-1975 passed against him by the third respondent (Shri P. Ghosh, Additional District Magistrate, Delhi) in exercise of the powers conferred upon him under clause (b) of sub-section (2) of section 3 of the Maintenance of Internal Security Act No. 26 of 1971 (hereafter referred to as the MISA) read with the Delhi Administration Notification No. F. 2/69/75-Home (P. II) dated 3-7-1975 detaming him under clause (a) (ii) of sub-section (1) of section 3 of the MISA. On the same date Shri Ghosh also passed an order of declaration, as required by section 16 (a) (3) of the MISA ; the same was inserted by section 5 of the Maintenance of Internal Security (Amendment) Ordinance, 1975 (replaced by an Act later) to the effect that the said detention was necessary for dealing effectively with the Emergency proclaimed by the President under Article 352(1) of the Constitution on 25-6-1975.

(2.) It is stated in the petition that the detenu was arrested on the morning of 24-7-1975 from his residence under the orders of the third respondent dated 24-7-1975 (copies of which are Annexures A and B to the petition). In view of the declaration no grounds of detention were served upon the detenu.

(3.) The petitioner being unaware of the reasons for the detention certain facts alone have been mentioned in the petition; they concern the detenu's background with a view to showing that he is not a person who could be genuinely apprehended to be one who would or was even likely to act in a manner "prejudicial to the maintenance of public order". He has always been a peaceful citizen of India; never been a member of any political party, never participated in any political demonstration and had not even done a single act which could possibly lead any reasonable man to infer that he was likely to act in any manner prejudicial to the maintenance of public order. For this reason it is asserted that the third respondent could not have been so satisfied concerning the detention and was in fact not so satisfied. The act of the third respondent, in ordering the detention of the detenu is, therefore, said to be one falling totally outside the scope of section 3 of the MISA and has been described as mala fide. In terms of what the Supreme Court, explained in Ram Manohar Lohia v. State of Bihar (A.I.R. 1966 S.C. 740) (1) a distinction has to be made between "the maintenance of public order" (which means prevention of disorder of a grave nature or one which affects the community or the public at large) and what might lead to a "disturbance of law and order".