BHANUDAS KRISHNA GAWDE Vs. K G PARANJPE

JUDGEMENT

(1.) THIS is a petition filed by a detenu (petitioner No. 2) and his son (petitioner No. 1) against the Detaining Authority as well as the Superintendent of the Thana Central Prison, the State of Maharashtra, and the Union of India for writs under Articles 226 and 227 of the Constitution, (a) quashing and setting aside the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 (hereinafter referred to as "the Conditions of Detention Order"); (b) requiring the respondents to keep the detenu under detention in accordance with the Maintenance of Internal Security (Maharashtra Conditions of Detention) Order, 1971, as applicable to detenus under the MISA, or in accordance with the conditions applicable to under-trial prisoners, or civil prisoners in accordance with the rules contained in the Jail Manual or rules made under the Prisons Act, 1894, and in conformity with that Act; and (c) requiring the respondents not to put the detenu in solitary confinement, to permit the detenu to supplement his diet at his own expense from outside the Jail, to permit the detenu at his own expense an allowance of Rs. 200/- per month, to permit the detenu to have medical treatment by a physician of his own choice at his own expense, to grant the detenu all interviews and the right to correspond, to give the detenu all books, periodicals and newspapers subject to censorship, and to retain the detenu at the Thana Central Prison as long as he is under detention. Though, as stated above, in prayer (a) of the petition, the petitioners have challenged the whole of the Conditions of Detention Order, at the hearing before us, only certain clauses of the said order were challenged, and Mr. Mehta who appeared for the petitioner made it clear that he was not challenging the whole of the Conditions of the Detention Order. The Clauses of the Conditions of Detention Order to which that challenge was confined were Clauses 9(iii), 10, 12(ii) and (xi), 15, 19, 20, 21, 23, 24 and 31. It may be clarified that in the present petition there is no challenge to the invalidity of the Detention Order itself under which the second petitioner is being detained, but the challenge is confined to the Conditions under which he is detained. It may, however, be mentioned that the second petitioner was first detained under the Maintenance of Internal Security Act by an Order made on the 25th of September, 1974 which was revoked, and the second petitioner was then served with a detention order dated the 19th of December, 1974 made by the first respondent under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act"), and continues to be detained under the said Detention Order. After hearing Mr. Mehta who appeared for the petitioners in the present petition, we also heard Mr. Jehtmalani who appears for the petitioner in Criminal Application No. 96 of 1975, and Mr. A.B. Diwan who appears for the petitioner in Criminal Application No. 792 of 1975, in both of which indentical questions arise, in order to avoid repetition of arguments when those Applications are called out. Separate orders will, however, be passed in those applications after this judgment is delivered. The clauses of the Conditions of Detention Order mentioned above have been challenged by Mr. Mehta on behalf of the petitioners on two grounds, and they are, that the said Conditions are ultra vires section 5 of the Act under sub-section (a) of which the Conditions of Detention Order has been made, and also ultra vires the object of the Act which provides for preventive detention and not for punitive detention; and, secondly, on the ground that the said conditions are contrary to section 31 of the Prisons Act, 1894. Mr. Mehta further contended that the power contained in sub-section (b) of section 5 of the Act to remove the detenu from one place of detention to another should also not be exercised in a punitive manner, for the same reasons. In the petition, as filed, the Conditions of Detention Order was also challenged as being in violation of Articles 14, 19, 21 and 22 of the Constitution. In view, however, of the Presidential Orders suspending Article 19 of the Constitution, and also suspending all actions, including pending proceedings, for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution, at the very commencement of the hearing. Mr. Mehta made a statement that, in the present case, he gives up Grounds (c) and (d) in paragraph 5 of the petition, as also the plea in the last sentence of Ground (b) in the said paragraph, and confines his challenge only to Ground (a), and to Ground (b) excluding the last sentence thereof. By another statement made at the same time, Mr. Mehta also made it clear that in the present petition he does not challenge the validity of section 5 of the Act. In view of these statements made by Mr. Mehta, the Court is not precluded from proceeding with the rest of the petition by reason of the Presidential Orders suspending the enforcement of certain fundamental rights of citizens. It may be mentioned that in view of the wide ambit of the petition, as originally filed, the learned Judges who admitted the same had directed notice to be issued to the Advocate General under Rule 1 of Order 27-A of the Code of Civil Procedure. That notice was duly despatched to the Advocate General by the office of this Court, but neither the Advocate General nor anybody on his behalf appeared on the hearing before us. In any event, in view of the statements made by Mr. mehta, since there is no constitutional challenge, nor even a challenge to the validity of section 5 or any other provisions of the Act, the question of the Advocate General being heard under Order 27-A, Rule 1 does not survive. THIS view which we take finds support, on a plain reading of Rule 1, Order 27-A itself insofar as a notice to the Advocate General is required only if "it appears to the Court" that any question of constitutionality is involved, and not merely because a petitioner or a plaintiff may purport to raise a far-fetched question of that nature in his petition or plaint, as the case may be. If, even in a case in which a constitutional challenge contained in a petition or a plaint is not given up, the Court can hear such proceeding without giving a notice under Order 27-A, Rule 1 if in its opinion such challenge is ill-founded, a fortiori, it can proceed to hear a petition or a suit where the constitutional challenge contained in a petition or a plaint is given up by the petitioner himself. We have, therefore rejected the preliminary objection raised by Mr. Chagla in regard to the same and have proceeded to hear the petition on merits. The second preliminary objection of Mr. Chagla that, in view of the Presidential Declaration under Article 359(1), pending proceedings like those in the present case which were suspended cannot be revived by a mere statement made by Counsel from the Bar giving up certain grounds of challenge is, in our opinion, of no substance for the simple reason that what is suspended is not dead, and no question of reviving it can possibly arise. The petition as a whole was still before us when it reached hearing, and what was suspended was only the petitioners right to enforce that part of the petition which related to the enforcement of the petitioners rights under Articles 14, 21 and 22 of the Constitution which the petitioners have now expressly given up by the statement made by their Counsel from the Bar. We have, therefore, rejected this preliminary objection of Mr. Chagla also, and have proceeded to hear the rest of the petition which is not affected by the Presidential Declaration. The third preliminary objection of Mr. Chagla that the Act having now been included in Schedule 9 of the Constitution, there can, by reason of Article 31-B, be no challenge to the Act or to the Conditions of Detention Order made under section 5 of the Act which had become part and parcel of the Act, must also be rejected. First and foremost, there is no challenge to the Act or to section 5 thereof. Secondly, it is too well-settled to need authority that it is only those clauses of a Statutory rule or order which are valid that become part and parcel of the Act as if they had been incorporated therein. If Mr. Chaglas contention on this point were to be accepted, it would lead to the reduction ad absurdum that no statutory rule or order can have to be challenged as being ultra vires the statute. Mr. Chagla relied on the judgment of the Supreme Court in the case of (Sukhdev Singh v. Bhagatram) A.I.R. 1975 S.C. 1331, on this point, but the judgment in the said case itself makes it quite clear (para 17) that subordinate legislation has the full force and effect of a statute only if it has been "validly made", and the said judgment, therefore, cannot be of any use to Mr. Chagla in support of this preliminary objection. The next contention of Mr. Chagla is, in our opinion, not really in the nature of a preliminary objection at all, as Mr. Chagla urged, but relates to the merits of the petitioners claim before us. That contention was that the petitioners do not have any legal right which they can enforce by a writ in the nature of Mandamus other than the fundamental right of personal liberty under Article 21 of the Constitution the enforcement of which has now been suspended by the Presidential Order. Mr. Chaglas contention was that, in the ultimate analysis, the clauses of the Conditions of Detention Order, the validity of which the petitioners seek to impugn by the present petition, are merely different facets of the fundamental right of personal liberty under Article 21 and do not exist apart from the right of personal liberty. Mr. Chagla sought to contend that the right to eat, to spend, to meet people, to write, to smoke, to play games are all parts of the fundamental right of personal liberty contained in Article 21. In fact, Mr. Chagla went so far as to suggest that if the Conditions of Detention Order contained a clause that detenus are not to be allowed to eat any food, it could not be challenged and the petitioner would have no remedy by way of a petition under Article 226 as long as the Presidential Order suspending the enforcement of the fundamental right under Article 21, of which the right to eat is a part, is in force. Emboldened by this proposition of Mr. Chagla, which we cannot help observing is a startling proposition, the learned Government Pleader interposed and said that even if the Conditions of Detention Order were to authorise that the detenu should be shot, such a clause could not be challenged during the subsistence of the Presidential Order. Happily, we are not compelled to take such an extreme view and, as observed by the Supreme Court in regard to a similar argument advanced before it in the case of (The State of Maharashtra v. Prabhakar) A.I.R. 1966 S.C. 424, "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", and far from there being compelling reasons for giving such a construction, the same would be contrary to well-accepted canons of construction of statute. It is beyond doubt that by a writ of Mandamus the Court can not only compel the performance of a statutory duty but can also compel public authorities to forbear from acting in violation or breach of a statute. In any event, as laid down by the Supreme Court in the case of (Dwarka Nath v. Income-tax Officer) A.I.R. 1966 S.C. 81. Article 226 is much wider than the power of English courts to issue prerogative writs, and under the Article this Court can certainly issue a direction or order which would compel a public authority to forbear from acting in violation of a provision of a statute, which is quite different from the enforcement of a fundamental right. If, therefore, there is any clause in the Conditions of Detention Order which goes beyond the Act under which that Order is made, as a clause which provides for starving or shooting a detenu certainly would, this Court has the jurisdiction to issue a direction or order against the respondents that they should forbear from doing so. To put it in another way, a citizen has the right to say that a public authority should act in conformity with the law, viz., in the present case the Act, and it is that right that the petitioners seek to enforce in the present case, and not their fundamental right of personal liberty under Article 21, as Mr. Chagla contends. If the respondents in the present case do not act in conformity with the Act, but enforce a clause of the Conditions of Detention Order which is ultra vires the Act, to the detriment of the detenu, as a person adversely affected thereby, he is certainly a "party aggrieved" who can come to the Court by way of a proceeding under Articles 226 and 227 of the Constitution. In the case of (S. Sinha v. S. Lal and Co.) A.I.R. 1963 S.C. 2720 dealing with a contention advanced before the Court in that case that the first respondent had no interest in the lease which was the subject-matter of that case, following the English law on the point, it was laid down (paras 9-10) by the Supreme Court that when the application for a writ is made by a party or by a person aggrieved, the Court would intervene ex debito justitiae, in justice to the applicant, and when it is made by a stranger, the Court considers whether the public interest demands its intervention. It was further stated that in either case it was a matter which rested ultimately in the discretion of the Court. There can be no doubt that the petitioner in the present case being adversely affected by the impugned clause of the Conditions of Detention Order is a party aggrieved, and if his contentions are accepted, the Court must intervene ex debito justitiae. There can also be no doubt that the matters involved in the present petition are matters of public interest which demand the intervention of the Court. Mr. Mehta rightly contended that merely because certain fundamental rights are declared by the Constitution, it does not mean that all other rights of citizens are gone. In support of that contention, he has relied on five decisions of the Supreme Court which, in our opinion, completely bear out his proposition. In the case of the State of Maharashtra v. Prabhakar already cited above (paras 4-5), it has been stated that notwithstanding Presidential Orders under Articles 358 and 359 of the Constitution, if a detenus liberty has been restricted in contravention or in derogation of the law whereunder he is detained, the High Court can issue an appropriate writ or direction to the authority concerned to act in accordance with law. In the case, of (Durgadas v. The Union of India) A.I.R. 1966 S.C. 1078, the effect of an emergency declared under Article 358 as well as under Article 359(1) of the Constitution, as in the present case has been explained. It has been stated that if the petitioner sought to challenge a statute on a ground other than contravention of Articles 14, 19, 21 or 22 of the Constitution, such a challenge would be outside the purview of a Presidential Order under Article 358 or under Article 359(1). As an illustration of the same, it is stated that a citizen would not be deprived of his right to move the Court for a writ of habeas corpus on the ground that his detention was mala fide, or "on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view." What is stated in the words just quoted is precisely the main ground of challenge in the present case. Durgadas case was cited and followed by the Supreme Court in the case of (Jaichand Lal v. The State of West Bengal) A.I.R. 1967 S.C. 483 in which it was reiterated that the limitation imposed by Presidential Order under Articles 358 and 359(1) of the Constitution cannot preclude a citizen from challenging the validity of an impugned provision on any ground other than contravention of Articles 14, 19, 21 and 22 e.g., on the ground of mala fides or on the ground that the ground given had no real and proximate connection with the object of the legislature. It was explained that only meant that the power conferred by the statute had been "utilised for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy." In the case of the (State of Madhya Pradesh v. Bharat Singh) A.I.R. 1967 S.C. 1170 it was stated by Shah, J., speaking on behalf of the Court, that the argument that a proclamation under Article 358 protected both legislative and executive action and that, therefore, any executive action taken by the State would not be liable to be challenged on the ground that it infringed the fundamental freedoms under Article 19 was characterised as involving "a grave fallacy". Shah, J. then went on to observe as follows :---