SUSHILA MADIMAN Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) THIS is an application under Section 491, Criminal P. C. , and the order under which the detenu was detained by the Commissioner of Police, Greater Bombay, is dated 27-2. 1960, and the order is made under the new Central Act. Grounds were furnished to the detenue on 16-8-1950, and the grounds are: ''that you along with your associates have been collecting and are likely to collect arms and ammunitions illegally for illegal purposes and illegal activities. " The Government pleader contends that on a similar ground in an earlier case we upheld the detention, holding that the ground was clear, precise and accurate. Mr. Chari, on the other hand, contends that since the coming into force of the new Constitution and the passing of the Central Act the position in law has materially altered, and in view of the alteration of the law the ground furnished is not such as to satisfy the provisions of the law. When we held that this ground was adequate we were governed by the Bombay Public Security Measures Act and the material provisions of that Act were contained in Section 3 which made it incumbent upon the Provincial Government to communicate to the detenue the grounds on which the order had been made. The Act also made it incumbent upon the detaining authority to furnish such other particulars as were in its opinion sufficient to enable him to make a representation to the Provincial Government against the order. This section was subsequently amended and the word "other" appearing before "particulars" was deleted. But the position in substance under the law remained the same, and the position was that whereas there was an obligation upon the Government to furnish the grounds, it was left to the discretion of the detaining authority to decide and determine what particulars it should furnish to the detenue. When the position in law was as I have just stated, a Full Bench of this Court had to consider what rights the subject had when he was deprived of his liberty under the Public Security Measures Act, and the Full Bench came to consider the position in In re Rajdhar Kalu Patil, 50 Bom. L. R. 183: (A. I. R. (35) 1948 Bom. 334 : 49 Cr. L. J. 465 F. B. ). The Full Bench emphasised the act that the safeguard with regard to the furnishing of grounds was the only safeguard that the subject had under the Act and that safeguard should be maintained intact and should not be in any way whittled down, and the Full Bench went on to hold that

(2.) IT may be pointed out that under Section 3 of the Bombay Act there was no obligation upon the detaining authority to disclose any facts which it considered to be against public interest to disclose. Therefore, the detaining authority under the Bombay Act need not disclose any act which it was for it to decide was against public interest, and even with regard to particulars, it need only give such particulars as in its opinion were sufficient to enable the detenu to make a representation. Now, when we turn to our new Constitution, the relevant article with which we are concerned is Article 22. That article deals with preventive detention; but while dealing with that subject it confers upon the subject certain rights and privileges which are fundamental in their character and the observance of which is made obligatory upon the Legislatures in the country. A preventive detention cannot be justified or supported if there has been a violation of any of the safeguards provided by Article 22 of the Constitution, and one of the most important safeguards is contained in Sub-clause (5) of Article 22, which provides :

(3.) MR. Chari's argument is that Sub-clause (5) of Article 22 gives a higher protection to the subject than was given by the Bombay Act. The contention is that whereas it was left to the discretion of the detaining authority as to what particulars to furnish to the detenu under the Constitution, that discretion is not left to the detaining authority. It is now for the Courts to decide whether the grounds furnished are such as to enable the detenu to make the representation contemplated by Sub-clause (5 ). In our opinion, that contention is sound and must be accepted. We cannot accept the view put forward by the Government Pleader that there is no connection whatever in Sub-clause (5) between the grounds which are to be furnished and the representation which the detenu has to make in respect of those grounds. According to the Government Pleader all that Sub-clause (5) provides is that an opportunity should be afforded to the detenue of making a representation against the order at the earliest opportunity. And according to the Government Pleader this opportunity is merely a mechanical opportunity, a sort of a postal opportunity for communicating the representation from one end to the other. That is taking, in our opinion, much too narrow and much too unjustified a view of the important safeguard given to the subject under Sub-clause (5 ). The opportunity contemplated is an opportunity which the detenu can avail himself of as a result of the grounds furnished to him. In other words grounds must be such as to enable the detenu to make a representation with regard to his innocence. Therefore it is clear that in Sub-clause (5) there is implict the necessity for disclosing such facts aa are necessary to give the proper opportunity to the detenu to make a representation against the order by which he has been detained ; and whether the facts disclosed are sufficient or not, it is not for the detaining authority to determine, but for the the Court to decide. The Government Pleader has gone to the length of suggesting that the new Constitution far from enlarging the liberty of the subject has restricted it and curtailed it, and according to the Government Pleader whereas the Bombay Act made it incumbent upon the detaining authority to furnish at least some particulars under the Constitution the detaining authority need not furnish any particulars or disclose any facts and could satisfy itself by giving the bald ground which led the detaining authority to the satisfaction required by the Preventive Detention Act. We should need much stronger argument than has been advanced by the Government Pleader to satisfy us that our Constitution really intended to out down the very few safeguards which the Preventive Detention Act affords to the subject. Fortunately, in our opinion, the language of Sub-clause (5) and Sub-clause (6) does not drive us to that conclusion. If the Government Pleader's contention was correct, then in our opinion there would have been no reason whatever to enact Sub-clause (6 ). If it was not incumbent upon the detaining authority to disclose any facts whatsoever and just to content itself by giving merely the conclusion or the reason which actuated the detaining authority in making the order, then it was not necessary to provide in Sub-clause (6) that the detaining authority may not disclose such facts which in the opinion of the detaining authority are against the public interest to disclose. Reading Sub-clause (6) and Sub-clause (6), in our opinion the true position s that Sub-clause (6) refers to that limited class of facts which the detaining authority is not under an obligation to disclose and that limited class of facts is that which in the opinion of the detaining authority is against the public interest to disclose. As far as Sub-clause (6) is concerned, it is perfectly true that it is entirely for the detaining authority to decide whether a certain fact is or is not against public interest. We should like to make it clear that the exercise of the discretion vested in the detaining authority by Sub-clause (6) may be challenged on the ground that the discretion has been exercised arbitrarily, capriciously or mala fide ; but if the discretion is properly exercised, it is not for the Court to sit in judgment on an opinion formed by the detaining authority that certain facts are not in the public interest to disclose. But subject to that it is incumbent upon the detaining authority under Sub-clause (5) to disclose all facts which would enable the detenu to make a representation against the order which has been passed depriving him of his liberty, and it would be for the Court to determine! whether the facts disclosed are sufficient or not, sufficient to give the detenu the necessary opportunity to make the representation under Sub-clause (5 ).