ATUL CHANDRA KOCH Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) THE Habeas Corpus applications preferred by the detenus were heard together on 23-2-1981 as they involved common questions of law and facts. Upon hearing the Counsel for the parties, we issued Writs of Habeas Corpus to liberate the petitioners with an observation that a reasoned judgment would follow. The reasons to bear up the order of release are now set forth.

(2.) THE petitioners were detained under Section 3(2) of the National Security Ordinance, 1980 (II-hereinafter referred to as "the Ordinance", by the District Magistrate, Dibrugarh "with a view to preventing" them "from acting in manner prejudicial to the public order and the maintenance of supplies and services essential to the community". Later, the grounds were furnished by the detaining authority who bottomed the grounds that the detenus had been acting "in a manner prejudicial to the maintenance of law, and order and maintenance of supplies and services essential to the community".

(3.) IN a plethora of creative pronouncements the Supreme Court has built into the vast powers vested in the Executive under the Preventive Detention Laws, legal or constitutional breakwaters, blinkers and bulwarks which have extensively humanised the harsh authority over personal liberty that otherwise exercisable arbitrarily by executive fiat. Judicial vigilance is the price of liberty and freedom of the person is the founding faith of our Republic. The Constitutional mandates and the pronouncements of the Supreme Court command us under Article 141 of the Constitution to examine the legal circumstances of the detention in the light of the constitutional constraints and the procedural safeguards of the Preventive Detention Laws. The three broad purposes for which the power of Preventive Detention may be legitimately exercised under "the Ordinance" are (i) the security of India/security of State; (ii) maintenance of public order, and, (iii) maintenance of supplies and services essential to the community. Neither Entry 9, List I nor Entry 3 of List III confers on legislatures to make any law relating to preventive detention for reasons connected with the maintenance of law and order "and persons subjected to such detention". Non-conferment of such power is obvious. If the law and order problems were allowed to be controlled by or under the preventive detention laws the executive would have surely taken recourse to the extraordinary machinery of detention without trial on bare subjective satisfaction rendering the Ordinary criminal law otiose, futile and superfluous. It follows therefore that detention for the purpose of 'law and order' is foreign to the preventive detention of laws. Further, the provisions of Section 3 of "the Ordinance" do not empower the Government or their officers to make any order of detention for preventing a person from acting in any manner prejudicial to the maintenance of "law and order". Although the maintenance of public order is a large umbrella under which a variety of interests parade yet it does not take within its fold "law and order". It is the consistent and persistent rule of the Supreme Court since "the Cross Road case", namely. Romesh Thappar v. State of Madras. AIR 1950 SC 124. The sole authority to form the requisite opinion to detain a person under "the Ordinance" rests with the Government or the officers authorised. Indeed, this court is prohibited to enter in that domain to reconsider the sufficiency of the grounds or to substitute an objective judicial test for the subjective satisfaction of the executive authority. Though the executive is supreme in this field yet no shortfall no casual and careless or uninformed disposal of others freedom is permitted to be allowed. The Ordinance confers extraordinary powers on the Executive to detain a person without recourse to the ordinary laws and without trial in an open court. Such a power places personal liberty in extreme peril against which the detenu is provided with a limited right of challenge. To keep the delicate balance between social security and citizen's freedom it is imperative for the court to construe such a law strictly and to examine meticulously whether the powers exercised by the executive have been carried out scrupulously with extreme care and caution within the bounds laid down in such a law. There must be "bona fide satisfaction" about the prejudicial activities of the detenus. Absence of bona fide in this context does not mean proof of malice, for an order can be mala fide although the officer is innocent. The satisfaction of the public functionary, though subjective must be real and rational, not colourable, fanciful, mechanical or unrelated to the objects and purposes enumerated in Section 3(2) of "the Ordinance". The detention order and the grounds require closest scrutiny of the materials on which the decision is formed leaving no room for errors or at least avoidable errors. Tyson Edward's quip, "Accuracy is the twin brother of honesty, inaccuracy is a near kin to falsehood" may not be true for all occasions but the statement is very helpful and ought to be borne in mind while considering the grounds of detention.