CHIDYA KHAN Vs. STATE

JUDGEMENT

(1.) I have heard the learned Counsel for the parties at length. Mr. Beg's, the learned Counsel appearing for the 19 petitioners' argument is manifold and each aspect of his argument will be considered separately. Mr. Raina's objection was that Mr. Beg should not be permitted to argue all the points that he has raised because these points were not specifically raised in the petitions. There is much weight in what Mr. Raina says; but it has to be kept in view that the petitions were sent by the detenus from Jail where they had no legal assistance available to them. Moreover as the petitions have been argued on pure points of law and on the interpretation of the different provisions of the Jammu and Kashmir Preventive Detention Act, 1964 (hereinafter referred to as 'the Act') I think I should not deny the detenus the privilege of considering all the arguments raised by their learned Counsel. Therefore, I heard Mr. Beg, the learned Counsel for the petitioners, at length.

(2.) ANOTHER preliminary objection raised by Mr. Raina, was that under the Constitution of India Article 35-C an exception has been made in the case of State of Jammu and Kashmir. This Article 35. C reads as under: No law with respect to preventive detention made by Legislature of the State of Jammu and Kashmir whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954,. Shall be void on the ground that it is inconsistent with any of the provisions of this part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof. This period of 5 years has extended from time to time and the Act is in force now up to 1974. But this point does not arise in this case because Mr. Beg has not challenged the vires of the Act in his argument before me but he has assumed the Act as constitutional and has attacked the orders of detention under the very provisions of the Act itself.

(3.) MR. Beg started his argument with the observation that under Section 3 of the Act, there are different circumstancs under which a person can be detained. This section is divided into two main sections (a) and (b ). Under (a) (i) the grounds of detention can be security of the Slate or the maintenance of public order and under (b) (ii) the maintenance of supplies and services essential to the community. It is common ground that neither (a) (ii) nor Sub-section (b) of Section 8 applies to the facts of these Oasis. Mr. Beg's argument is that the grounds of security of State and the maintenance of public order cannot be clubbed together in the case of a single individual. The scope of the application of these two provisions namely (i) security of the State and (ii) the maintenance of public order is entirely different and any single individual cannot be detained for both these grounds simultaneously. He emphasised the point that when detention is ordered on the gronnd of security of the State, no grounds need be given if the detaining authority so thinks fit. In the case of maintenance of public order the grounds for detention have to be supplied. Therefore, according to him the detention order of those persons in whose cases both grounds have been simultaneously given are liable to be set aside on this ground alone. The argument is no doubt original, but in my opinion has not much force behind it. I agree with thelearned Counsel that these two grounds namely the detention for the purpose of security of the state and for maintenance of public order are different in their meaning and connotation. The word "or" baa not to be read as ''and". He has argued that when the words of a statute are clear, no artificial or strained construction should be permitted. The word ''or" should not be interpreted as "and. " It is no doubt true that the cardinal rule of interpretation of statutes is that when the language of the statute is clear no attempt should be made to take recourse to external aides, and the law should be applied as it is expressed by the legislature because the legislature is presumed to be rational and there is always a presumption against redundancy. But all this is not necessary in this case because in spite of the argument of the learned Advocate General, I agree that the legislature envisaged two different categories under Section 8 (a) and they have separate scope for application. The security of the State is a graver reason than maintenance of public order or I should say maintenance of public order is a minor charge as compared with the security of the State. A person may behave in such a manner as to deliver speeches or indulge in other activities inciting people to violence or preaching communalism, which may result in disturbance of public order. In this case if somebody is detained, his detention can be justified on the score of maintenance of public order. If on the other hand the activities of such a man assume such proportions as for instance joining with an enemy or acting in concert with the designs of an enemy, the field of his activities becoming so wide as to endanger the security or the sovereignty of the State, his acts can be deemed as a menace to the security of the State. I have given only a simple illustration but cases can be conceived where disturbance to the public order can be the result of a variety of acts committed by an individual. Similarly there can be many actions on the part of an individual which affect the security of the State, for which his detention may become necessary under the Act. Therefore, I agree with the learned Counsel for the detenus that these two bars for detention are exclusive but they may in certain cases overlap each other because the activities of a particular individual may in addition to causing disturbance to the public peace endanger the security of the State also.