EMPEROR Vs. KESHAV TALPADE

JUDGEMENT

(1.) In this case the appellant appeals against the refusal of a division bench of the High Court of Bombay to grant an order under Section 491 of the Criminal Procedure Code in nature of a writ of habeas corpus in order to secure the release of the appellant from detention under an order purporting to be made under Rule 26 of the Defence of India Rules. The appellant was arrested on August 24 last under Rule 129, and an order for his detention under Rule 26 was made by the Provincial Government on August 27. The ground on which the appellant asked for an order under Section 491 was that the Defence of India Act, 1939, and as a necessary corollary the rules made thereunder are ultra vires, since the Act purports to relate to the defence of India, and no power is conferred on the Central Legislature or upon any other Legislature in India to legislate on that subject. This is a startling contention and, if it is sound, would have even more startling consequences. It is, therefore, necessary to examine closely the facts of the case and the relevant statutory provisions which have been brought to our notice.

(2.) The appellant states that he was arrested by a police-officer on August 24, 1942, and detained in custody ; that on September 4 he was removed to the Thana jail; and that he learned later that an order had been made by the Bombay Government dated August 27, which is in the following terms :- Whereas the Government of Bombay has received a report from the Commissioner of Police, Bombay, that the person known as Keshav Talpade has been arrested and committed to jail custody under Sub-rules (1) and (2) respectively, of Rule 129 of the Defence of India Rules; And whereas the Government of Bombay is satisfied that with a view to preventing the said Keshav Talpade from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war, it to necessary to make the following order; Now therefore in exercise of the powers conferred by Sub-rule (4) of Rule 129 read with Rule 26 of the said rules, the Government of Bombay is pleased to direct- (a) that the said Keshav Talpade be detained until1 further orders; (b) that he shall be detained in the Thana District Prison until any other place for his detention is determined by a competent authority under Sub-rule (5) of the said Rule 26; and (c) that he shall for the purposes of the Security Prisoners Detention Conditions Order, 1941, be classified as a Class II security prisoner." The appellant further states that he is new detained in the Yeravda Central Jail, Poona. He denies that he has acted in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of war ; on the contrary, he says that he believes in giving unqualified aid to the efficient prosecution of war. It is not disputed that he is in fact detained under the order to which we have referred. [After quoting Rules 26 and 129, the judgment proceeds.]

(3.) Both rules were made by the Central Government under powers conferred by the Defence of India Act, 1939, Section 2(1) of that Act provides that the Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. Sub-section (2) is as follows :- Without prejudice to the generality of the powers conferred by Sub-section (1), the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters and then follow thirty-five paragraphs each of which sets out a matter or matters for which rules under the Act may be made. Apart from the general words in Sub-section (I), paragraph (x) of Sub-section (2) appears to be the only provision in the Act dealing with the apprehension and detention of suspects. Paragraph (x) is in the following terms :- The apprehension and detention in custody of any person reasonably suspected of being of hostile origin or of having acted, acting or being about to act, in a manner prejudicial to the public safety or interest or to the defence of British India, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do, or abstain from doing, anything.