MOHAMMAD YOUSUF RATHER versus THE STATE OF JAMMU & KASHMIR AND ORS.

CHINNAPPA J.-A good deal of vehement argument was advanced by Dr. Singhvi to sustain lhe order of detention and this has led me to add this brief note to the opinion of my brother Shinghal, J ., with whose conclusions I agree.

p. 267, margin D

The Constitution of India recognizes preventive detention as a necessary evil, but, nonetheless, an evil. So we have, by constitutional mandate, circumscribed the making of laws providing for preventive detention. While Article 22 Clauses (4), (5), (6) and (7) expressly deal with pre\"~ntive detention, Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law and Article 19(1) (d) guarantees to citizens the right to mov·~ freely throughout the territory of India subject to reasonable restrictions made in the i'nterests of the general public as mentioned in Article 19(5). At one time it was thought that Article 22 was. a complete code in regard to laws providing for proventive detention and that the validity of an order of detention should be determined strictly according to the terms and "within the four cor'ners of that

p. 267, margin E

s.c.c. (3) I. LR. (1972) Andhra Pradesh 1025. article". It was held in A. K. Gopalan v. State of Madras( that a detenu may not claim that the freedom guaranteed by Article 19 ( 1) ( d) was infringed by his detention, and that the validity of the law providing for preventive detention was not to be tested in the light of the reasonableness of the restrictions imposed thereby on the freedom of movement, nor on the ground that his right to personal liberty was infringed otherwise than according to procedure established by Jaw. A theory was evolved that the nature and extent of the Fundamental Rights was to be measured by the object and form of the State action and not by the operation of the State action upon the rights of the individual. This has now been shown to be wrong. In R. C. Cooper v. Union of India( the Full Court opted for a broader view and it was held that it was not the object of the authority making the law impairing the right of the citizen, nor the form of action takeR that determined the protection the citizen could claim; it was the effect of the law and of the action upon the right which attracted the jurisdiction of the Court to grant relief. So, in that case, they rejected the submission that Article 31 (2) was a complete code in relation to the infringement of the right to property by compulsory acquisition and the validity of the law was not to be tested in the light of the reasonableness of the restrictions imposed thereby. So it follows that a law providing for preventive detention and action taken under such a Jaw, to pass muster, have now to satisfy the requirements of both Article~ 19 and 22 of the Constitution.

pp. 267–268, margin H

We are primarily concerned in this case with Article 22(5) which is as follows :

p. 268, margin D

"When any person is detained in pursuance of an order made und·~r any law providing for preventive detention, the authority making the order shall, as soon as may be, commwii.cate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of makibg a representation against the order".

p. 268, margin D

The extent and the content of Article 22 ( 5) have been the iYbject matter of repeated pronouncements by this Court (Vide, State of Bombay v. Atmaram('), Dr. Ramkrishna Bharadwaj v. State of Delhi('), Shibbanlal Saxena v. State of Uttar Pradesh(•), Dwarkadas Bhatia. v. Stille of Jammu & Kashmir('). The interpretation of Article 22(5), cohsistently adopted by this Court, is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights. The law is now well settled that a detenu has two rights under Article 22 ( 5) of the Constitution : (1) To be informed, as soon as may be, of the grollllds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being cO'llsidered may obtain relief to him. The inclusion of an irrelevant -0r non-existent ground among other relevant grounds is an infringement -0f the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the Constitutional rights of the detenu entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant or obscure ground among several relevant and clear grounds is an invasion of the detenu's constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective satisfactiO'll of the detaining authority.

pp. 268–269, margin F

Dr. Singhvi very strenuously submitted that the first paragraph of the 'grounds' supplied to the petitioner was of an introductory nature, that Paragraphs 2, 3, 4 and 5 referred to the events which furnished the background and that th., penultimate paragraph alone contained the grounds of detention as such. He submitted that it was permissible to separate the introduction and the recrtal of events constituting the background from the grounds of detention and if that was done it would be apparent that the order of detention suffered from no infirmity. He sought to draw support for his submission from the decision in Naresh Chandra Ganguli v. State of West Bengal and others(2).

p. 269, margin D

It is impossible to agree with the submission of Dr. Singhvi. The annexure to the order of detention detailing the grounds of detention has been fully extracted by my learned brother Shinghal, J. we are unable to see how factual allegations such as those contained in the paragraphs 1 to 5 of the grounds of detention can be said to be merely introductory or as constituting the background. In Naresh Chandra Ganguly v. State of West Bengal( what was read by the Supreme Court as the 'preamble' was the recital in terms of Section 3 ( 1)

p. 269, margin F

(I) [!956] SCR 948. (2) I S.C.R. 411. clauses (a) and (b) of the Preventive Detention Act, namely, that the detenu was being detained in pursuance of a detention order madein exercise of the power conferred by Section 3 of the Prewntive De· tention Act on the ground that the detenu was acting in a manner prejudicial to the maintenance of public order as evidenced by thi:' particulars given thereafter. The particulars given in the subsequent paragraphs, the Court said, constituted the grounds. We do not under· stand Naresh Chandra Ganguly v. The State of West Bengal(') as laying down that it is permissible to dissect or trisect the grounds of dete'n'ion into introduction, background and 'grounds' as such. There is no warrant for any such division.

pp. 269–270, margin H

The distinction made in Naresh Chandra Ganguly's (supra) case between tho 'preamble', meaning thereby the recital in terms of the statutory provision and the 'grounds' meaning thereby the conclusions of fact which led to the passing of the order of detention does not justify any distinction being made between introductory facts, backgroundfacts, and 'grou'nds' as such. All allegations of fact which have led to the passing of the order of detention are 'grounds of detention'. If such allegations are irrelevant or vague the detenu is entitled to be released.

p. 270, margin C

The attempt of Dr. Singhvi was to treat that allegation which according to him was the immediate cause of the order of detention as th•o only ground of detentio\1 and all other allegations earlier made as were introductory and background facts. We are unable to so dissect the factual allegations mentioned in the document supplied to the detenu as furnishing the grounds of detention. The last straw which breaks a camel's back does not make weightless the other loads on the camel's back.

p. 270, margin D

The grounds of detention begin with the statement that the detenu is a 'die-hard Naxalite'. Dr. Singhvi described a Naxalite as a 'votary of change by resort to violence and urged that as the meaning ascribed to the expression by the daily press (Marxist Exclamation : the Capitalist Press ! ) . Many may not agree with Dr. Singh vi. Some think of Naxalites as blood-thirsty monsters; some compare thern to Joan of Arc. It all depends on the class to which one belongs, one's political hues and ideological perceptions.) At one stage of the argument Dr. Singhvi himself described a Naxalite as an 'ideological revolutionary'. The detenu himself apparently thought that it meant no more" than that he was a believer in the Marxist-Leninist ideology and so he affirmatively declared that he was a firm believer in that ideology aµol was proud of that fact. Though he did urge that the expression (l) [196011 C.R. 411.

p. 270, margin F

v. J. (Chinnappa Reddy!.) Naxalite connoted a person who sought change through violent means, Dr. Singhvi had, nltimately, to confess that the expression 'Naxalite' was as definite or as vague as all words describing ideologies, such as democracy etc., were. It is enough to say that it is just a label which can be as misleading as any other and is, perhaps, used occasionally for that very purpose.

p. 271

Jn the third paragraph of the grounds of detention it is said that the detenu made a speech in which he asked his audience to shun the life of dishonour and rise in revolt against oppression. In the fourth paragraph he is stated to be responsible for posters bearing the caption "No solution without revolution". · It is also stated that the posters asked the people to prepare themselves for revolution. Now, expressions like 'revolt' and 'revolution' are flung about by all and sundry in all manner of context and it is impossible to attach any particular signi~ ficance to the use of such exprossions. Every turn against the. establishment is called 'revo:t' and every hew idea is labelled as 'revolutionary·'. If the mere use of expressions like 'revolt' and 'revolutioll' are to land a person behind the bars what would be the fate of all our legislators ? It all depends on the context in which the expressions · are used. Neither paragraph three nor paragraph four of the grounds of detention specifies the particular form of r2volt or revolution which the detenu advocated. Did he incite people to violence? What words did he emp!oy ? · What, then, is the connection between these grounds and "acting in any manner prejudicial to the maintenance of the public order" ? There is no answer to be gleaned from the grounds reci~cd in paragraphs three and four which must therefore, be held to be both irrelevant and vague.

p. 271, margin B

in paragraph five it is said that the detenu instigated educated unemployed youth to go on a hunger strike. A hunger strike, in our country, is a well known form of peaceful protest but it is difficult to connect it with public disorder. We consider this ground also to be vague. and irrelevent. The allegation that the detenu made derogato~y· remarks about Shri Sheikh Mohammed Abdullah, Chief Minister of Kashmir, and compared him with General Zia of Pakistan appears to _iis, again, to be entirely irrelevant. I do not think it is necessary to refer to all the grounds in any further detail as that has been done by ·my, brother Shinghal, J. · · N. K.A. Petition allowed . .. ~..

p. 271, margin E