N. Ibotombi Singh, J.
1. A question of law of general importance about the interpretation of Section 14(1) National Security Act, 1980, read with Section 3(5) of the Act, has been referred by the Division Bench to a larger Bench for determination, the question being 'whether on the report from the State Government under Section 3(5) National Security Act, 1980, the Central Government has the discretion coupled with duty to consider the question of revocation of detention order expeditiously, irrespective of the fact that there is no representation/petition from the detenu to the Central Government for the purpose'.
2. In the case out of which the question above has arisen, the detenu, Sri Hitendra Nath Goswami, was detained by order dt. 5.1.83 of the State Government passed, in pursuance of Section 3(2) of the Act. The State Government reported the fact of detention to the Central Government together with the grounds on which the order has been made, within 7 days of the order of detention, in compliance with Sub-section (5) of Section 3 of the Act. The detenu, Sri Hitendra Nath Goswami, made no representation to the Central Government (Sic) received the report on 28.1.83, considered and found it prima facie valid. As a result, the order of detention has not been revoked by the Central Government in exercise of its power under Section 14(1)(b) of the Act. As such a question arose whether the discretion of the Central Government under Section 14(1) is coupled with duty to consider the report made by the State Government, in pursuance of Sub-section (5) of Section 3 of the Act with expedition, where no representation has been made by the detenu to the Central Government to exercise its power of revocation under Section 14 of the Act; and if not, its legal effect. In Joynath Sarma v. State of Assam (1983) 1 Gauhati LR 289 : 1984 Cri LJ 92, a Division Bench held that where no decision has been taken either on the report or on the representation of the detenu by the Central Government, the constitutional mandate under Article 22(5) has been violated, which renders the continued detention illegal, inasmuch as the Central Government has failed to discharge its duty enjoined under Section 14 of the Act. In Bikash Narayan Sarma v. State of Assam (1983) 1 Gauhati LR 431 : 1984 Cri LJ 81, a case which arose in another Bench of this Court, the Court found on the materials before it that the State Government sent its report to the Central Government, in compliance with Sub-section (5) of Section 3 of the Act, but the Central Government had not applied its mind to such a report. The Division Bench held the view that though it was open to the Central Government to revoke an order if it thought fit to do, a question of discretion coupled with duty mention of which has been made in Sabir Ahmed would arise only when petition/representation has been made. The Division Bench observed: 'Indeed, Sabir Ahmed has used this expression in the context of dealing with the petition/representation; otherwise it would be a case of 'complete discretion' and not reviewable by a Court of law'.
3. In course of hearing of Hitendra Nath Goswami's case, the Division Bench considered the question of law above to be of general importance and referred it to a larger Bench for determination. This is how it has come up before the larger Bench.
4. I proceed to consider first the cases in Julius v. Bishop of Oxford (1874-80) All ER Rep 43 and Padfield v. Minister of Agriculture (1968) 1 All ER 694, which were relied on by the-Division Bench in Bikash Narayan Sarma's case 1984 Cri LJ 81, in support of the proposition that the Central Government has 'complete discretion and not reviewable by a Court pf Law' on the report made under Section 3(5) of the Act. In Julius's case, Section 3, Church Discipline Act, 1840, provided that with regard to certain charges against any clerk in Holy Orders, it 'shall be lawful' for the Bishop of diocese 'on the application of any party complaining thereof to issue a Commission for enquiry. The Bishop declined, in exercise of his discretion, to issue Commission. A question arose whether the Bishop was bound on the application of any party to issue a Commission, or has a discretion to issue or not to issue the Commission.
5. It was held that the words 'it shall be lawful1 for the Bishop to issue a Commission gave the Bishop a complete discretion to issue or decline to issue a Commission. There was no private or public right created by Section 3. Church Discipline Act, 1840, which requires it to be construed as making it compulsory that the Bishop should exercise the power given to him but he had an absolute discretion whether to issue a Commission or not. Earl Cairns L.C. said : 'The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power'.
6. Earl Cairns L.C. proceeded : 'But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.'
Lord Penzance said : 'The words 'it shall be lawful' are distinctly words of permission only — they are enabling and empowering words. They confer a legislative right and power on the individual named to do a particular thing; and the true question is not whether they mean something different, but whether, regard being had to the person so enabled, to the subject matter, to the general objects of statute, and to the person or class of persons, for whose benefit the power may be intended to have been conferred, they do or do not create a duty in the person on whom it is conferred to exercise it.'
Lord Selborne said : 'The question whether a judge or public officer to whom a power is given by such words is bound to use it upon any particular occasion or in any particular manner, must be solved aliunde, and in general it is to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power'.
7. In the contrasting case, Padfield 1968 1 All ER 694 (supra), the question was whether action need be taken on a complaint. The Agriculture Marketing Act, 1958, provided for the reference of certain complainants to a Committee of Investigation 'if the Minister in any case directs.' The Minister refused to act on a complaint by a group of milk producers against the Milk Marketing Board. The question at issue in that appeal was the nature and extent of Minister's duty under Section 19(3)(b) of the Act of 1958, in deciding whether to refer to the Committee of Investigation a complaint as to the operation of any scheme made by persons adversely affected by the scheme. The Minister contended that he was given an unfettered discretion with regard to every complaint either to refer it or not to refer it to the committee as he might think fit. The House of Lords held the reasons for refusal to act to be inconsistent with the policy and the object of the Act, which was that the relevant and substantial complaint should go to the Committee in the absence of good reasons to the contrary. The permissive words gave the Minister discretion, but he was not entitled to use his discretion as to frustrate the policy and objects of the Act.
8. In Padfield's case 1968 1 All ER 694, Julius case 1874 80 All ER Rep 43 was relied on by both the parties. Lord Reid said: 'So there is ample authority for going behind the words which confer the power to the general scope and objects of the Act in order to find what was intended. In Julius case no question was raised whether there could be a discretion but a discretion so limited that it must not be used to frustrate the object of the Act which conferred it; and I have found no authority to support the unreasonable proposition that it must be all or nothing — either no discretion at all or an unfettered discretion. Here the words 'if the Minsiter in any case so directs' are sufficient to show that he has some discretion, but they give no guide as to its nature or extent. That must be inferred from the construction of the Act of 1958 read as a whole, and for the reasons which I have given I would infer that the discretion is not unlimited, and that it has been used by the Minister in a manner which is not in accord with the intention of the statute which conferred it.'
Lord Pearce agreeing with Lord Reid observed:
It is quite clear from the Act of 1958 in question that the Minister intended to have some duty in the matter. It is conceded that he must properly consider the complaint. He cannot throw it unread into the waste paper basket. He cannot simply say (albeit honestly) 'I think that in general the investigation of the complaints has a disruptive effect on the scheme and leads to more trouble than (on balance) it is worth; I shall therefore never refer anything to the committee for investigation1. This was clearly never intended by the Act of 1958. Nor was it intended that he could silently thwart its intention by failing to carry out its purpose.
Lord Pearce further observed:
Parliament intended that certain subsequent complaints (involving the public interest) under the compulsory scheme should be considered by the Investigation Committee. It was for the Minister to use his discretion to promote Parliament's intention.
The reasons given by the Minister were held not to be consistent with the objects of the Act.
9. The decision in Julius's case 1874 80 All ER Rep 43 rested on the construction of the Church Discipline Act, 1840, and the decision also makes it clear that in the context of the Act is to be found how a power given by it is to be exercised. In Padfield case 1968 1 All ER 694, it was held that the Minister could not act as to frustrate the policy of the Act, despite the fact that the words conferring power on the Minister were permissive. The case is a living example of the abuse of discretion, and the importance of the decision was underlined by Lord Denning. Mr. R. in Breen v. Amalgamated Engineering Union (1971) 2 QB 175 at p. 190. 'The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. This means at least this : the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law.'
10. Lord Denning in his book 'The Discipline of Law', 1979 edition, at page 104, observed:
The two outstanding cases are Padfield v. Minister of Agriculture, Fisheries and Food (1963) AC 997, and Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1977) AC 1014, where the House of Lords have shown that when discretionary powers are entrusted to the Executive by statute, the Courts can examine the exercise of those powers to see that they are used properly, and not improperly or mistakenly. By mistakenly' I mean under the influence of a misdirection in fact or in law.
11. It will be appropriate at this stage to examine the nature and extent of power of the Central (Govt.) contemplated in Section 14(1) read with Section 3(5) National Security Act. It is necessary to consider the general scope and the object of the Act conferring a discretionary power on the Central Government in order to find out what was intended by the Act. I will start with the cases, where the Supreme Court made certain observations from time to time on the general scope of the analogous provisions of law.
12. In Hadi Bandhu Das v. District Magistrate, Cuttack : 1969CriLJ274 , the Supreme Court explained the principle underlying Section 13(2), Preventive Detention Act,. 1950, which is in pan materia with Section 14(1) of the Act 1980, and observed; 'Negligence or inaptitude of the detaining authority in making a defective order or in failing to comply with mandatory provisions of the Act may in some case enure for the benefit of the detenu to which he is not entitled. But it must be remembered that the Act confers power to make a serious invasion upon the liberty of the citizen by subjective determination of facts by an executive authority, and the Parliament has provided safeguards against misuse of the power and the principle underlining Section 13(2) is, in our view, the outcome of insistence by the Parliament that the detaining authority shall fully apply its mind to and comply with the requirements of the statute and of insistence upon refusal to countenance slipshod exercise of power.'
13. In Haradhan Saha v. State of West Bengal : 1974CriLJ1479 , a Constitution Bench of 5 Judges expressed the view that Section 14, Maintenance of Internal Security Act, 1971, which is in pari materia with Section 14, National Security Act, 1980, provides that without prejudice to the provisions of Section 21, General Clauses Act, 1897, detention order may at any time be revoked by the appropriate Government. The same view Was also expressed by the Supreme Court in Ram Bali v. State of West Bengal : 1975CriLJ592 , where it was held that it is left with the Central Government in exercise of his discretion, either to exercise the power read with the provisions of Section 21 General Clauses Act, or without aid of Section 21, General Clauses Act. See also Smt. Kavita v. State of Maharashtra : 1SCR138 . In Haradhan Sana's case 1974 Cri LJ 1479, the Supreme Court observed: Section 14 of the Act clothes the authority with the power of revoking or modifying the detention order at any time. Such a power which is for the benefit of the detenu carries with it the duty to exercise that power whenever and as soon as charge or new factors call for exercise of that power.
14. In Sher Mohammad v. State of West Bengal : 3SCR154 , the Supreme Court had the occasion to consider Section 3(4), Maintenance of Internal Security Act, 1971, which is mandatory in character. It held that this procedural mandate is inviolable except on peril of the order being voided, if there is any infringement of the procedural safeguards; the scheme of the Act is in keeping with Article 22 of the Constitution and the Act emphasises the various stages at which there will be consideration of the need for the detention by different authorities, such as District Magistrate, the State Government and ultimately the Central Government. For the effective exercise of this power the scheme has been built into the statute.
15. It is ripe now to discuss the case cited in Joynath Sarma's case 1984 Cri LJ 92 (Gauh) and Bikash Narayan's case : 1984 Cri LJ 81 (Gauh). In Mohd. Dhana Ali Khan v. State of West Bengal : 1976CriLJ622 , the Court ruled that Section 14 merely confers a discretion on the Central Government to revoke or modify an order of detention made by the State Government. It does not confer any right or privilege on the detenu. It is for the Central Government to revoke or modify the order of detention after the report is submitted to it. The mere fact that the Central Government does not choose to revoke or modify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Government failed to apply its mind.
16. Mohd. Dhana Ali's case 1976 Cri LJ 622 was referred to in Sabir Ahmed v. Union of India : 3SCR738 , where it was held that the decision in that case stood on its peculiar facts, and in principle, there was no conflict between the ratio of that case and the two subsequent decisions in Tara Chand v. State of Rajasthan : 1980CriLJ1015 and Shyam Ambalal Siroya v. Union of India : 1980CriLJ555 . It may be stated that the observation of Supreme Court in Dhana Ali's case is to be read in the context in which it was made. In the case the Central Government was not a party nor was there any material before the Court to show that the Central Government did not apply its mind under Section 14 of the Act. But in the later case in Sat Pal v. State of Punjab : 1981CriLJ1867 , the Supreme Court while dealing with power of the Central Government under Section 11 of COFEPOSA observed that, although it was earlier thought that Section 14, Maintenance of Internal Security Act, 1971, which is in pari materia with Section 11 of COFEPOSA, did not confer any right or privilege on the detenu, there is a general consensus of opinion that the power of revocation conferred on the Central Government under Section 11 of the COFEPOSA is a supervisory power, and is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government.
17. In Tara Chand 1980 Cri LJ 1015 (supra), the Supreme Court held that when representation by the detenu is made to the Central Government, it is duty bound to consider the same in order to exercise its discretion either rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22(5) so as to render the detention unconstitutional and void. In Shyam Ambalal Siroya 1980 Cri LJ 555 (supra), the Supreme Court held that the power of the Central Government under Section 11 of COFEPOSA to revoke the order of detention implied that the detenu could make representation to exercise that power; and any petition for revocation of an order of detention should be dealt with reasonable expedition. As a statutory duty is cast upon the Central Government it is necessary that the Government applies its mind and either revoke the order of detention or dismiss the petition.
18. In Sabir Ahmed v. Union of India : 3SCR738 , the Supreme Court followed the ratio of Tara Chand's case 1980 Cri LJ 1015 and Shyam Ambalal Siroya's case 1980 Cri LJ 555. It observed :
Whether or not the detenu has under Section 11 a legal right to make a representation to the Central Government is not really the question. The nub of the matter is whether the power conferred by Section 11 on the Central Government, carries with it a duty to consider any representation made by the detenu, expeditiously. The power under Section 11 may either be exercised on information received by the Central Government from its own sources including that supplied under Section 3 by the State Government, or, from the detenu in the form of a petition or representation. Whether or not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power under Section 11 is a supervisory power. It is intended to be an additional check or safeguard against improper exercise of its power of detention by the detaining authority or the State Government. If this statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge its supervisory responsibility with constant vigilance and watchful care. The report received under Section 3, or any communication or petition received from the detenu must be considered with reasonable expedition. What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But is certainly does not cover the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted procastination.
19. In Rattan Singh v. State of Punjab AIR 1982 SC 1 : 1982 Cri LJ 146, the Supreme Court emphasised that the power under Section 11(1) of COFEPOSA in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. It accepted the principle laid down in Tara Chand's case 1980 Cri LJ 1015 (SC) and Shyam Ambalal Siroya's case 1980 Cri LJ 555 (SC) as the correct exposition of law. In Sat Pal 1981 Cri LJ 1867 (supra), the Supreme Court also considered the supervisory nature of the power of the Central Government under Section 11 of COFEPOSA and expressed the view that this section which has the overriding power to revoke or modify a detention order, at any time, made by the State Government, or by an officer of the State Government, has been enacted by Parliament, as under our federal structure the centre must always keep a vigilant eye in the matter of life or liberty of the citizen guaranteed under Article 21. After referring to Articles 256, 257 and 258(2) of the Constitution, it further held that, where the Central Government finds that the order of detention made under Section 3 is mala fide or constitutes abuse of power on the part of the State Government or an officer of the State Government specially empowered in that behalf, it may, at any time, revoke the order of detention in exercise of its power under section.
20. What has emerged from a review of these cases is that, the Central Government is clothed with supervisory power under Section 11 of the COFEPOSA and this power is intended to be an additional check or safeguard against the improper exercise of power of detention. For the effective exercise of the power, the scheme has been built into the statute; and the Parliament has in its wisdom enacted Section 11 of the COFEPOSA. A report received under Section 3 of the COFEPOSA or any communication or petition received from the detenu must be considered with reasonable expedition.
21. Turning to the National Security Act, 1980 with which we are concerned, on the ratio of Sher Mahammad 1975 Cri LJ 1715 (SC)(supra), the provision of Section 3(5) of the Act is mandatory. On reading of the Act as a whole, it is manifest that the scheme of the Act is to provide a machinery for an effective exercise of the power of detention at various stages by different authorities, such as, District Magistrate, State Government and ultimately the Central Government, Parliament has invested the Central Government with supervisory power to revoke or modify, at any time, the detention order made by the State Government or office of the State Government specially empowered in that behalf in exercise of its power under Section 14(1), Section 3(5) of the Act which obligates the State Government to report the fact of detention along with the grounds of detention and other particulars bearing on it, within a stipulated period, implies a corresponding duty in the Central Government that the Central Government is to consider the report with reasonable expedition, notwithstanding that no representation has been made by the detenu to the Central Government. It has to apply its mind to it, keeping in view the policy and objects of the Act. Parliament intended that Central Government should always keep a vigilant eye in the matter of life or liberty of the citizen guaranteed by Article 21.
22. It is for the Central Government to revoke or not the detention order in exercise of its discretionary power under Section 14(1) of the Act, on receipt of the report from the State Government; but to borrow the words of Lord Pearce in Padfield's case 1968 1 All ER 694, the Central Government cannot 'throw it unread into the waste paper basket'. The report is intended to be considered with reasonable expedition; any delay in the matter due to negligence, callous inaction, avoidable red-tapism and unduly protracted procastination would defeat the intention of the Parliament. See Sabir Ahmed : 3SCR738 (supra). As such, non-consideration of the report by the Central Government with expedition would be a breach of the procedural safeguard provided by the Act, as an additional check against the improper exercise of power of detention by the detaining authority and thereby violate Article 21. It is a case where the Central Government may be considered to have failed to understand the object and scope of Section 14(1) read with Section 3(5) of the Act and of its function and duties thereunder.
23. To construe otherwise will also attract the vice of arbitrariness and unfairness which are the sworn enemies of equality guaranteed under Article 14 of the Constitution, one procedure on representation made by the detenu to the Government and a different procedure on the report received from the State Government under Section 3(5) of the Act. I may recall here the statement of law enunciated by the Supreme Court in Menaka Gandhi v. Union of India : 2SCR621 , where it is laid down that 'the procedure must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and requirement of Article 21 would not bei satisfied.'
24. In Bikash Narayan 1984 Cri LJ 81 (Gauh) (supra), the Court made the observation that the detenu can make no legal grievance against non-consideration of the report by the Central Government. In my opinion, what is essential is not whether the detenu can make a legal grievance or not in such a case, but the essence of the matter is whether there is any breach of the procedural safeguard provided by Parliament. The Court is sentinal qui vive of freedom of the individual; it is an ensuring observance with the requirements of law, and even where requirement of a law is breached in the slightest measure, the Court will not hesitate to struck down the order of detention or to direct release of the detenu even though detention may have been valid till the breach occurred. See Smt. Icchu Devi Choraria v. Union of India : 1SCR640 .
25. It is the requirement of law as declared by the Supreme Court in Sabir Ahmed's case : 3SCR738 and Sat Pal's case 1981 Cri LJ 1867 (SC) that, 'a report received under Section 3 or any communication or petition received from the detenu must be considered with reasonable expedition.' What is reasonable expedition, however, requirement of law is breached, the legal consequence is that the order of detention is liable to be set aside and the detenu set at liberty.
26. With respect, I am unable to agree with the view expressed in Bikash Narayan 1984 Cri LJ 81 (Gauh) (supra) that on the report received under Section 3(5) of the Act, the Central Government has 'a complete discretion and not reviewable by a Court of law'. It has been discussed in the earlier part of this judgment on the authority of the Padfield's case 1968 1 All ER 694 and other English decisions that the discretion of a statutory body is never unfettered; the discretion is to be exercised according to law. Prof. H.W.R. Wade in his book 'Administrative Law', 5th Edition at page 355, said : 'Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestrictive permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered Government discretion is a contradiction in term. For the same reasons it makes no sense whether there may be unreviewable administrative action. Unreviewable administrative action is just as much a contradiction in terms as is unfettered discretion, at any rate in the case of statutory power. The question which has to be asked is the scope of judicial review. But that there are legal limits to every power is axiomatic.
27. Padfield's case illustrates that Court can assert legal control over the allegedly absolute discretion of the Minister of Agriculture. The House of Lords in that case held that the Minister acted unlawfully, as the Minister's stated reasons showed complete misapprehension of his duties and the discretion was not unlimited, and it has been used by the Minister in a manner which is not in accord with the intention of the statute which conferred it. The House of Lords further held that if in such a case the Minister refused to give any reason, the Court might assume that he had no good reason and was acting arbitrarily; and, therefore, failure or refusal to give any reasons could not be regarded as a sufficient exclusion on the Court's surveillance. In my opinion, the above principles would apply with equal force to the order of the Central Government in exercise of the discretionary power under the Section 14(1) of the Act on the report received from the State Government under Section 3(5) of the Act. Under the scheme of the Act, discretion of the Central Government is not unlimited. Where the Central Government does not apply its mind to the report with reasonable expedition and exercise its power under Section 14(1) of the Act either rejecting or revoking the order of detention, consistent with the policy and objects of the Act, or where it failed to exercise the supervisory power under Section 14(1) of the Act even though the report prima facie reveals mala fide or abuse of power on the part of the detaining authority or non-compliance with the mandatory provisions of law, it is an act on the part of the Central Government which would defeat 'the intention of the Parliament. This is never intended by the Act, nor is it intended that the Central Government can silently thwart the intention of Parliament by failing to carry out its purpose.
28. The case in John Martin of State of West Bengal : 1975CriLJ637 , has established the proposition of law that the Central Government has a duty to apply its mind to the representation, though no speaking order need be passed in rejecting the representation made to the Central Government. The case has also established that in regard to the report received from the State Government, it is necessary that the Central Government' applies its mind to it, though the mere fact that, the Central Government does not choose to revoke or modify the order of detention without anything more does not necessarily lead to the irresistible inference that the Central Government failed to apply its mind. Indeed, where circumstances arise for exercise of power under Section 14(1) of the Act, a duty is cast on the Central Government to exercise it. Section 14(1) is intended for the benefit of the detenu. The observation of Lord Penzance already quoted in the earlier part of the judgment would apply to the interpretation of Section 14(1) of the Act: 'regard being had to the person so enabled, to the subject matter, to the general objects of the statute, and to the person or class of persons, for whose benefit the power may be intended to have been conferred, such permissive words do or do not create a duty in the person on whom it is conferred to exercise.' The power under Section 14(1) of the Act on the Central Government is thus coupled with duty to consider the report with expedition and pass order in a manner consistent with the policy and objects of the Act. There will be a clear violation of Article 21 of the Constitution if the report is not considered by the Central Government with expedition.
29. About the reviewability of such omission or action, in my opinion, the Central Government may not be able to disarm the Court for an appropriate order by taking shelter in silence on the report. Here I quote a passage from the judgment of Law J. in The King v. Governor of Brixton Prison, ex parte Sarno (1916) 2 KB 742 at 752: 'The arm of the law in this country would have grown very short, and the power of this Court very feeble, if it were subject to such a restriction in the exercise of its power to protect the liberty of the subject as that proposition involves'. The above remark was made in a case of a challenge to an order under the Aliens Restriction (Consolidation) Order, 1914, where it was held that an applicant for habeas corpus would not necessarily be foreclosed by the production of an order which was good on its face.
30. After conclusion of arguments of learned Counsel of both sides, it is brought to our notice that the Supreme Court has rejected the petition for special leave to appeal to the Supreme Court under Article 136 of the Constitution in Criminal Case No. 2170 of 1983 filed by the detenu against the judgment and order dt. 5.5.83 of the Division Bench of this Court in Civil Rule (HC) No. 90 of 1983 Jatin Mali v. State of Assam and in which this very question raised before us was involved. In that case, the view taken in Bikash Narayan 1984 Cri LJ 81 (supra) was followed that a detenu can make no legal grievance against non-consideration of the report by the Central Government and that discretion to invoke the revocation power of the Central Government under Section 14(1) of the Act would be coupled with duty only in those cases where representation/petition has been submitted to that Government. The order of detention of Jatin Mali was challenged on three grounds. One of the contentions raised was that silence of the Union of India impleaded as a party in the case would show that it had not considered the report sent by the State Government under Section 3(5) of the Act, which itself furnished a good reason to set aside the order. All the three contentions raised on behalf of the detenu were rejected and ultimately the petition was dismissed. The Supreme Court by its order dt. 19.9.83 dismissed the petition for special leave to appeal under Article 136 of the Constitution in limine. The order reads as : 'In view of the order of dismissal of the leave petition above, a question arises as to whether it is open for this Court to examine the question referred to us. Counsel of both the parties are heard again on this ancillary point.
31. In my opinion, dismissal of the petition for special leave in limine does not stand as a bar to our determination of this question. It cannot be held that the decision of the Division Bench in Jatin Mali's case on the question above has been upheld by the Supreme Court Though the discretionary power vested in the Supreme Court under Article 136 is very wide, and not subject to any limitation it has been laid down that this power is to be exercised sparingly and in exceptional cases only. The Court held in Pritam Singh v. State : 1950CriLJ1270 'Generally speaking this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question present features of sufficient gravity to warrant a review of the decision appealed against'. This view was also followed in Murtaza and Sons v. Nazir Mahammad Khan : AIR1970SC668 . Special leave may be dismissed on various reasons where the question becomes academic. For instance, question raised in the proceeding may become nugatory owing to subsequent events; or the Supreme Court does not like to interfere under Article 136 of the Constitution with the order of the High Court which may be, considered to be erroneous in law, where 'no exceptional circumstance is shown to exist in the case. The order of dismissal of the special leave cannot be placed on the appellate jurisdiction on merits, confirming or reversing the judgment or order of the Court below. The doctrine of merger of the order of the Court below on the question involved in a case in the order of the appellate Court made in appeal cannot be invoked, as the Supreme Court has not decided finally this question in appeal and confirmed the judgment and order of this Court in Civil Rule (HC) No. 90 of 1983. It is the accepted principle that the appellate order is the operative order after the appeal is disposed of which is the basis of the rule that the order of the original Court or authority gets merged in the order of the appellate Court whatsoever its decision, whether of reversal or modification or mere confirmation. See (i) Collector of Customs, Calcutta v. Fast India Commercial Co. Ltd. : 2SCR563 and (iii) Gojan Brothers (P) Ltd. v. Ratan Lal Singh : 1SCR394 . There is a mark distinction between these two proceedings — appeal and special leave application.
32. That apart, it does not appear from the order of the Supreme Court as to whether this particular question was urged by the counsel before the Supreme Court at the time of hearing of the petition. As the petition was dismissed in limine without passing a speaking order, it is difficult to deduce any principle of a binding nature from such order by implication. Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. This Article gives a constitutional status to the theory of precedents in respect of the law declared by the Supreme Court. But such a law can be declared only in judgments, determining each question of law which arises in the case by laying down the principles involved. In State of Orissa v. Sudhansu Sekhar Misra : (1970)ILLJ662SC , the Supreme Court held: 'A decision is only an authority for which it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.' On the principles discussed above, the question under reference is open to our determination.
33. I have discussed at length the question under reference, and for reasons given above, my answer is that the discretionary power of the Central Government under Section 14(1) of the Act in the context of Section 3(5) of the Act is coupled with duty to consider the report received from the State Government with reasonable expedition, notwithstanding that no representation/petition has been made by the detenu to the Central Government; what is reasonable expedition depends on the circumstances of the particular case; and in case of breach of such procedural safeguard, the detention order is liable to be set aside and the detenu set at liberty.
S.M. Ali, J.
34. I agree.
D. T.N. Singh, J.
35. Mine is not a caveat but an addendum to the leading judgment prepared by my noble brother, N.I. Singh, J. I propose merely to supplement the reasons given, and thereby buttress the conclusions reached, by my learned brother. The need for this separate and rather longish (though concurring) note, arises to clear further doubts, if any, about my views expressed earlier on the statutory provisions under consideration in this Reference. I would let this be recorded, therefore, that in my considered opinion, the question referred to this Bench has to be answered, and answered in the affirmative, as proposed in the leading judgment.
36. Indeed, how can one dispute the proposition that Sections 3(5) and 14(1), -National Security Act (Shortly the Act) must be read in the context of Articles 14, 21 and 22(5) of the Constitution and not in isolation : If that be so, there is no escape, in my opinion, from the conclusion that the duty cast on the Central Govt. to consider expeditiously the report made to it under Section 3(5) cannot be whittled down by converting the constitutional duty into a pure 'discretionary power' in view of what has been laid down in Sabir Ahmed : 3SCR738 and Sat Pal 1981 Cri LJ 1867 (SC) (both supra). There is no scope, in my opinion, to obfuscate the issue by importing the alien and unconstitutional concept of 'absolute discretion'.
CLEARING THE DECKS
37. However, before I proceed to state briefly my reasons for reaching the above conclusion, it is necessary that 1 should clear the decks first. Because, the opinion of the Court in Joynath 1984 Cri LJ 92 (Gauh) (supra) was delivered by me and I was a party to Jatin Mali wherein Bikash Narayan 1984 Cri LJ 81 (Gauh) was referred to. The last mentioned decision is said to conflict with Joynath and via Jatin Mali it is claimed to have emerged as a binding precedent rendering the reference under consideration redundant and infructuous. Indeed, the validity of the dicta in Sabir Ahmed : 3SCR738 and Sat Pal 1981 Cri LJ 1867 (SC) has been put in issue in the course of hearing of this reference relying on, what appears to me, a misconceived proposition of law. I have no doubt in my mind that the one line decision of the Supreme Court ('Special leave petition is dismissed') rendered on 19.9.83, in SLP (Cri) No. 2170/83 Jatin Mali v. State of Assam was not meant to be, and did not, in law and fact, result in nullification of all that was stated by the Court earlier in the reasoned judgments in Sabir Ahmed and Sat Pal.
38. I do not think it necessary to discuss the scope and application of the doctrine of merger in this context. I have no doubt about the true legal position and it would be, therefore, an exercise in futility. In Jatin Mali the view of a Division Bench of this Court on the scope of Section 3(5) of the Act was stated merely by referring to a decision of another Division Bench in Bikash Narayan 1984 Cri LJ 81 (Gauti). In Jatin Mali, which went to Supreme Court, the reasons for the view taken were not stated. There was no occasion, therefore, for the Supreme Court to examine the reasons on which the view expressed therein by this Court was founded. Where is, therefore, the scope for merger L. True, if Bikash Narayan was taken in appeal to the Supreme Court, the position would have been different. Then only the issue could be adjudged and 'merger' accomplished through a conscious judicial process. However, even if it be held that the judgment of this Court in Jatin Mali merged in the decision on the S.L.P. given by the Supreme Court, that would hardly be material in so far as this reference is concerned. Because, merger simpliciter would procure for it finality merely in the matter of conclusion and that too in so far as the lis litigated was concerned. For, 'merger' is but an off spring of 'res judicata'. By merger the decision would not ipso facto became 'law within the meaning of Article 141 of the Constitution and in this case we are faced squarely with the question as to which precedent this Court is constitutionally obligated to follow. In other words whether in Jatin Mali's S.L.P. case the decision rendered was 'law' so m IB attract the application of Article 141? This, in my opinion, is the question to which we have to address ourselves.
39. The bare face that the appellate Court in Jatin Mali's S.L.P. Case happened to be the Supreme Court would not make, in my opinion, the decision to question 'law' within the meaning at Article 141 so as to foreclose judicial debate at a lower level on a point of law on which no opinion is expressed therein. A decision to be 'law' under Article 141 must not be a mere conclusion by which the case is disposed of. Because, a conclusion, mere conclusion, may be on facts; it may not, and does not, necessarily involve consideration of law. And Article 141 will not be attracted if 'law' is not 'declared' or stated vocally to support the conclusion reached for deciding the lis. A mute declaration of the mere conclusion is not contemplated under Article 141. Shortly, when a speaking order is passed in any case by the Supreme Court indicating its reasons for the decision rendered, then and then only Article 141 will be attracted albeit only as respects the point of law decided see, Municipal Committee v. Hazara Singh : 3SCR914 ; Prakash Chandra v. State of U.P. : AIR1960SC195 .
40. 'Law' sans reason is incomprehensible. Reasons give the 'law' its majesty. Judicial exposition makes vocal, by right reasons, a mute statute to enable it to command respect and obedience. A Judge ipse dixit may be danger (Sic) but is never accepted as law and it was not meant to be the 'law' under Article 141. I have no doubt that our founding fathers meant to endow the Supreme Court with the role of a sagacious law-maker by repositing in Article 141 this basis postulate of rule of law so that the institution survived vicissitudes of time to support, as a pillar hi strength, stability and wisdom our democratic structure. Indeed, this position is verily reflected in our constitutional practice. Our Supreme Court overrules (though sparingly) its own decisions. Why and how? Admittedly, to test the validity of any decision on a point of law when questioned. This can be, and is, done as its decisions manifest reasons which are reexamined in the light of emerging social, economic and political norms to dispense the multidimensional justice envisaged by the Preamble. When the Court is satisfied of its error and its baneful effect on the general interests of the public, it does not hesitate to review its own decisions see, Bengal Immunity v. State : 2SCR603 . The term 'law' has, therefore, to be so construed as not to negate or nullify the existing constitutional practice. Law must glow, informed by the 'spirit of inquiry and reform'. Judges as citizens have a 'Fundamental Duty' imposed on them by Article 51A(h) of the Constitution to carry on tirelessly this timeless process. However, even if Article 141 is to be considered an embodiment of the preexisting common law rule as to precedents manifested in the doctrine of stare decisis, we may read with profit what was stated long long ago in the ancient English Year Books. In 1327 Scrope recorded : 'The king has commanded us that we do law and reason according to that which has been done in like cases (on semblable cases)' - (emphasis added); cf. law in the Making, C.K. Allen, 7th Ed., page 197.
41. I would, therefore, hold that the decision in Jatin Mali's S.L.P. case did not amount, either to reconsideration by the Supreme Court of its opinion is expressed in the earlier decisions in Sabir Ahmed : 3SCR738 and Sat Pal 1981 Cri LJ 1867 or to a declaration otherwise as a 'law' under Article 141 of the view expressed by this Court in Bikash Narayan 1984 Cri LJ 81 which, indeed, was not even the subject matter of the lis before it. The validity of the reference under consideration of this Bench is, therefore, not indented or impaired in any way.
42. I may clear the lower deck as well even if I have to tarry a little before reaching the jural juncture on the high seas. In Jatin Mali, the decision in Joy Nath 1984 Cri LJ 92 (Gauhti), which was cited at the Bar, was referred to and distinguished on facts. Joy Nath, it was stated, was a case on representation. In para 10 itself it was further observed : 'As presently advised, we are of the view for the reasons given in Bikash Narayan that in the absence of a representation, a detenu cannot make a grievance in writ Court about non-consideration of the report sent to the Central Govt.'. Joy Nath was also cited before the Court in Bikash Narayan and it was-similarly distinguished on facts, being a case of representation, in para 9 of the judgment in that case. It was because of this position that I considered it unnecessary to append a separate note of mine to indicate in categorical terms my own reasons for agreeing with the conclusions reached by my learned brother, Hansaria, J. who delivered the opinion of the Court in Jatin Mali wherein detenu's plea based on infraction of Section 3(5) of the Act was rejected. The expression 'as presently advised', I consider, adequately protected my views and reservations. In so far as I am concerned, the plea was rejected because on the facts of the case, Joynath could not be invoked. Indeed, there was no occasion, in Joy Nath, to deal with the effect of non-consideration only of the report. In the respect (Sic) case undoubtedly the reference in categorical terms makes a clear demand for an express judicial pronouncement on the ambit and purport of Section 3(5) of the Act. Thus, I do not consider myself bound by the views expressed by the Bench, albeit referentially, in Jatin Mali. Indeed, in this reference the, view expressed in Bikash Narayan is squarely and pointedly in issue. I was not a party to this decision and I propose, therefore, to express my opinion on the issue, uninhibited by what was stated in Jatin Mali.
LIBERTY ON HIGH SEAS.
43. The law of preventive detention is tolerated as a 'necessary evil' and the ship of, liberty is protected against the pernicious effect of the blizzard by means of judicially untrenched procedural safeguards. Otherwise, on high seas, liberty's ship has no chance of survival against 'evil' spells of misdirected adventures. Indeed, this judicial duty flows from the constitutional mandate but the mandate of the Preamble or of Article 21 itself sprang from the innate concept of liberty. Not long ago, the learned American Judge learned Hand said that 'liberty lies in the hearts of man and woman''. Verily, he also declared, 'when it dies there, no Constitution no law, no Govt. can save it'. From Gopalan : 1950CriLJ1383 to A.K. Roy : 1982CriLJ340 is a long story. Happily, the value of liberty has risen in the scale of justice. Though it is reiterated judicially from time to time that the law of Preventive Detention is 'not basically impermissible' under the Constitution, the position which obtains today is that any law impinging on the right to personal liberty is amenable to the test of not a single Article but the entire conspectus of Articles 14, 19, 31 and 22.. There is further the outstanding effect of A.K. Roy which has, in categorical terms, laid down that a Preventive Detention measure cannot be used punitively. This Court has therefore held in a number of cases, indeed in Bikash Narayan 1984 Cri LJ 81 (Gauhti) itself, that such infractions can be judicially interdicted (see also Naran Tanti v. State, Civil Rule (HC) 79/83, decided on 25.3.83; Ranjan Goswami v. District Magistrate, Civil Rule (HC) No. 110/83, decided on 17.5.83, etc). For the same reason it can be said that the provisions of a law of preventive detention have to be so construed as not to violate our own accepted view or the judicial mandate of the highest Court of the land. In other words, the provisions are to be construed in a manner as will ensure that the detention does not acquire a punitive character 'at any time'.
44. Briefly, the scheme of the Act, which is cast in the constitutional mould of Articles 21 and 22 must and does manifest, according to me, the legislative intent to regulate the power of preventive detention in a manner as will agree with minimum curtailment of liberty and permitting recourse to the law only in cases of genuine 'necessity'. Section 3 confers on the authorities concerned the 'power to make orders to detain certain persons' but we must read the provision carefully to see if this power is circumscribed in its birth in any manner. So read, it appears to me that Sub-section (1), (2) and (3) deal generally with the activities which are considered 'offensive' as well as with the functionaries or the authorities who are invested with the power of a person when it may be 'necessari' to detain him to achive this objective. In what manner and subject to what conditions he may be detained are laid down in Sub-section (4) and (5) and in other provisions of the Act. In my opinion, Sub-section (4) and (5) specify some of the conditions which circumscribe the power of detention provided in Sub-sections (1), (2) and (3). The steps which are to be taken after a detention order is passed are stated in Sub-section (4) & (5) and importantly this process is made time bound though in both cases a 'report' of this act is to be made to the authorities named therein. Sub-section (4) besides embodying the constitutional requirement of furnishing, 'as soon as may be', the 'grounds' to the detenu, as provided under Section 8 of the Act, require further that besides the said 'grounds', with the said report, 'other particulars' have also to be submitted 'forthwith' to the State Govt. Sub-section (5) similarly provides for 'grounds' and 'other particulars' to be submitted by the State Govt. to the Central Govt. with its report after detention order is made or is approved by it. However, significantly, in Sub-section (5) the nature of the 'particulars' is also specified. This must have, it is stated, 'a bearing on the necessity for the order.
45. In my opinion the provisions of Sub-section (4) and (5) are in the nature of conditions subsequent (commonly called 'safeguards') whereby the continuing validity of the detention order or, in other words, the validity of the continued detention, can, and has to be, tested. The recent decision of the Supreme Court in Merugu Satyanarayanan : 1982CriLJ2357 establishes the premises that the conditions precedent which are reflected in the first three sub-sections manifest or project 'necessity' as to true complexion of the power of preventive detention see also, Kanchanlal : 1979CriLJ1306 . That the main stay of continued detention to also the same is, therefore, not difficult to appreciate. In Sub-section (4) the object of 'necessity' is spelled out by providing the consequence of the infraction thereof - automatic termination of detention. If Sub-section (5) does not manifest a similar consequence, its requirement of furnishing within seven days the particulars having a tearing on the 'necessity' for the order (by which the detention can be continued up to three months) obligates the Court to seek the logical purpose and object of the said 'necessity' I have no doubt that this object is fulfilled by the provision of revocation provided in Section 14(1) and the purpose by the constitutional mandate of Articles 21 and 22.
46. It does not appear difficult to me to realise that the object of the time-table inscribed in both Sub-section (4) and (5) is to concretise the constitutional limitations embodied by Clause (4) and (5) of Article 22 to which the power of preventive detention is expressly subjected. A constitutional duty, in my opinion, is imposed on the State by virtue of Article 21 to provided in the relevant statutory enactment machinery, one or more, to evaluate the 'necessity' of continued detention to ensure minimum curtailment of liberty. Clause (4) of Article 22 does not confer absolute power on the State to continue uninhibited detention of person up to three months because in Clause (5) communication of grounds 'as soon as may be' and 'earliest opportunity of making representation against the order' is envisaged.
47. If the right available to the detenu under Article 22(5) is to be made meaningful and effective then there must exist other suitable statutory machinery also besides the constitutionally entrenched Advisory Board, whose role is not made effective until the end of the three-month time-bridge. The statutory machinery, in my Opinion, must take care of the supervening events arising during the intervening period and indeed also beyond it, after confirmation of detention on Board's report because the 'necessity' to detain may cease 'at any time'. The moment it ceases the detention will acquire a punitive character and will be violative of the constitutional injunction. Indeed, it is for this reason that in all successive preventive detention laws, enacted since 1950, provision is invariably made for revocation of the detention order. This provision, in my opinion, embodies the constitutional duty ingrained in Article 22(5). I do not read Article 22(5) to confine its scope of operation to the consideration merely of 'representation' made by the detenu. If what Article 22(5) aims to achieve is also realised by a statutory provision, it must be said to be done in the performance of the same constitutional duty. So, if the purport of Article 22(5) is to terminate continued detention if it is found not to be 'necessary any further, it must be said that Section 14(1) also achieves the same purpose. The purport of Article 22(5), in my opinion is that if continued detention is not 'necessary' it must terminate and not that it can be terminated only when a representation is submitted. Indeed, in Section 14(1) it is expressly provided that 'at any time' a detention order may be 'revoked or modified'. The use of the word 'does not, and cannot, sap the content of the constitutional duty mandated by Article 22(5).
48. In Bikash Narayan 1984 Cri LJ 81 (Gauhti) the decision of the Supreme Court in Sabir Ahmed (1980-3 SCC 296) was considered and the observations made therein were carefully noted. It was also noted that the Court did hold that, for the reasons alluded, the Central Govt. was required to consider the report recorded by it with 'reasonable expedition'. Still, the Bench which decided the case took the view that as it was a case in which a representation had in fact been made its ratio had to be confined, therefore, to such a case. Why it was so held in Bikash : was it an obiter dictum? I think, not, because, the point of law was not incidentally but directly raised before the Supreme Court and it was duly decided. As a result, the unanimous decision of the Court on the point of law became 'law' binding on all Courts in the country in virtue of Article 22(5). Indeed, what question of law the Supreme Court faced is stated clearly in para 9 of the report. Counsel for the State contended that the power of revocation, though of supervisory nature, did not invest the detenu with a right to move the Central Govt. for revoking the detention. The contention was rejected and reasons therefor were given. In para 12 of the report reasons are stated. The Court held that the supervisory power of revocation was a statutory safeguard and the power may 'either be exercised on information received by the Central Govt. or from its own sources including that supplied under Section 3 by the State Govt. or from the detenu in the form of a petition or representation'. It appears to me that the Bench deciding Bikash overlooked the word 'or' which proceeded the expression herein underlined and as a result took a constricted view of the said decision, by confining itself to the underlined expression. It appears to me crystal clear that the gist of the decision was that the discretion to revoke was 'coupled with a duty' and, as the Court observed, the duty was 'inherent in the very nature of the jurisdiction.' Thus, whether or not a report/representation was made, the duty ('supervisory responsibility') had to be discharged in any case. The fact that Central Govt. had to act even suo motu to ensure 'constant vigilance and watchful care' indicated, in my opinion, the constitutionally entrenched nature of the obligation which was manifested in the provision of revocation reposited in Section 14(1). Indeed, the view expressed by me in the foregoing paragraphs, that the power of revocation was a manifestation of the constitutional duty to ensure minimal curtailment of liberty by regulating the detention period according to 'necessity' so as to prevent it from acquiring a punitive character, finds support from Apex Court's views, just alluded. More about it is to be found in Sat Pal 1981 Cri LJ 1867 (SC) but before 1 proceed thereto I may add that detenu's standing to make grievance against non-consideration of the report (which Bikash denied him) would in the premises aforesaid become unquestionable. For breach of a constitutional duty the appropriate remedy is nowhere but in the 'constitutional' Court (or writ Court). Indeed, the 'law' of our land is that Judicial Review is a basic structure of our constitution and rules of standing must, therefore, be subordinated to this concept.
49. Reference may now be made to Sat Pal 1981 Cri LJ 1867 (SC), although it was not cited, and therefore not considered, in Bikash 1984 Cri LJ 81 (Gauhti). The Supreme Court was called upon to decide in that case the question as to whether the power of revocation of the detention order was exercisable only after the representation was rejected by both State Govt. and Advisory Board and the detention order was confirmed. Another proposition canvassed before the Court was that the detenu has no right to make simultaneously a representation and an application for revocation. The Court held in categorical terms that the purpose of a representation under Article 22(5) was to secure revocation of the detention order and both must be dealt with by the appropriate Govt. simultaneously. It was further observed that the 'general consensus of opinion' (albeit judicial opinion) on the scope and nature of the power of revocation had undergone a change. The vintage view that the detention No 'right or privilege' in the matter was not accepted any more. Echoing the view expressed in Sabir Ahmed the Court held that the 'supervisory power'1 was an additional check or safeguard: There is no doubt that the modern view was explained in detail' in Sabir Ahmed : 3SCR738 though it was not cited in this case. Similarly, the old view can be said to have been expressed in Dhana Ali 1976 Cri LJ 622 (SC)(supra) which was considered and distinguished in Sabir Ahmed though it was accepted in Bikash.
50. Reliance, in my opinion, on Julius case 1874 80 All ER Rep 43 (supra), to divine the nature of the jurisdiction under Section 14(1), is not permissible. Under a written Constitution different considerations obviously arise while construing statutory provisions. It was not necessary in Julius to test the provision on the anvil of any written guarantees of liberty. Indeed, Julius, on which implicit reliance was placed in Bikash 1984 Cri LJ 81 (Gauhti) was on the interpretation of the expression 'it shall be lawful' which occurred in the 3rd section of the Churc Discipline Act which appertained to the domain of Ecclesiastical laws. Construing the expression with the aid of usual canons of construction it was held that the natural meaning of the expression was permissible and enabling only and the Bishop was given 'complete discretion' to issue or decline to issue a commission to any person for making inquiry in respect of any offence against Laws Ecclesiastical in every case of any clerk in holy orders. It is beyond my comprehension how, therefore, Julius can be accepted as a safe guide to divine the legislative intent of the provisions of Sections 3(5) and 14(1) of the Act which are amenable only to a 'purposive' interpretation, which is gaining currency even in England as expressed by the House of Lords in Shah v. Barent B.C. (1983) 1 All ER 226. That apart, under Indian constitutional set up the over arching concept of rule of law embedded in Article 14 does not countenance the concept of 'complete discretion' (see Khudiram : 2SCR832 , Jaisinghani : 65ITR34(SC) . Our constitutional mandates are inexorable; common law rules are flexible. Breach of procedural safeguard is considered as a breach of constitutional duty and the order is struck down see Sher Mohmmad : 3SCR154 .
51. For the foregoing additional reasons, I concur with my learned brother's opinion rendered in the leading judgment that the discretionary power of the Central Govt. under Section 14(1) in the context of Section 3(5) is coupled with duty to consider the report with reasonable expedition and for doing so any representation or petition by detenu is not necessary.
52. I have read with profit the judgment of my learned brother N.I. Singh, J. I do not propose to express any view on the question referred because of the following:
53. After this reference was once heard and the judgment was under preparation, it came to our notice that the Hon'ble Supreme Court had dismissed in limine the petition for special leave to appeal (S. L. P. for short) filed by one Jatin Mali whose habeas corpus petition had been rejected by this Court. The importance of this development lies in the fact that while dismissing Jatin Mali's prayer for writ of habeas corpus, a Bench of this Court had approved of the decision rendered in Bikash Narayan 1984 Cri LJ 81 on the point involved in this reference. In Jatin Mali, it was clearly stated in para 10 that for the reasons given in Bikash Narayan, a detenu could not make a grievance in a writ Court, in absence of a (Sic) sent to the Central Government. This Court concluded by saying that 'no infirmity has therefore been introduced in the present case on account of the failure of the Union of India to file ^return stating that it had considered the report.'
54. As the question involved in this reference is the correctness of the above view expressed in Bikash Narayan, and as the Supreme Court had dismissed the S.L.P. of Jatin Mali where this view was affirmed, the Counsel of the parties were further heard on the question whether this Court can still examine the correctness or otherwise of the view. The pertinent question which arises is whether the order of this Court passed in Jatin Mali has merged with that of the Supreme Court or not. If it has, this Court is apparently not competent to decide whether the view expressed in Jatin Mali regarding the non-consideration of the report is legally sound or not.
55. It has, therefore, to be seen as when does the doctrine of merger operate. As stated in C.I.T.v. Amritlal Bhogilal : 34ITR130(SC) , if an appeal is provided against an order, the decision of the appellate authority is the operative decision in law, and the original decision merges in the appellate decision. Of course, this could be said only where the order in question has been the subject matter of appeal. In Amrit Lal, the order of the I.T.O relating to registration was not held to be a subject matter of appeal preferred by the assessee; indeed, such an order is not appealable. So, this part of I.T.O.'s order was held revisable by the Commissioner, despite appellate order of the I.A.C. It was therefore stated in State of Madras v. Madurai Mills : 1SCR732 that merger is not a rigid doctrine, application of which depends on the nature of the appellate or revisional order, and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. In Madurai Mills the only question raised in revision was about deduction of tax collected by the assessee. It was therefore held that the question relating to exemption of yarn purchased by the assessee and the order passed thereon, had not merged with the revisional order. It may be stated here that the doctrine of merger applies to revisional order also, as the power is, vide Shankar v. Krishnaji : 1SCR322 , basically and fundamentally appellate.
56. It was laid down in Collector of Customs v. East India Commercial Co. : 2SCR563 , and Haji Esmail v. Competent Officer : 3SCR134 that where the appellate authority has disposed on the appeal, the operative order is that of the appellate authority, whether it has reversed, modified or confirmed the original order. It was stated in para 5 East India Commercial Company that it is this principle which says that the appellate order is the operative order after the appeal is disposed which is the basis of the rule that the decree of the lower Court merges in the decree of the appellate Court; this is irrespective of the decision, whether the same is of reversal, modification or confirmation. It was made clear in the 1963 decision, which was reiterated in Gojer Brother v. Ratanlal : 1SCR394 , that even where an appeal is dismissed, merger takes place.
57. To dislodge the effect of these decisions, the contention of Shri Medhi advanced in written arguments is that in Jatin Mali there was no appeal before the Supreme Court. It is difficult to accept this contention. The dismissal of S.L.P. has to be regarded as in limine dismissal of the appeal itself. The provision of Article 136 has to be regarded as kin, in this context, to Sub-section (3) of Section 378, Cr.P.C., because of which no appeal against acquittal is entertained except with the leave of the High Court. Now, if leave is refused, it would be difficult to contend and hold that the High Court has not affirmed the order of acquittal, and that trial Court's order has not merged with that of the High Court.
58. Reference may usefully be made to Saheodan Singh v. Darao : 3SCR300 . Though it has dealt with the question of res judicata, yet the two suits having common issues were decided on merits and two sets of appeals were preferred therefrom, but one set was dismissed on preliminary ground like limitation. The question was whether the decision would operate as res judicata in so far as the other set of appeal is concerned. The Court stated as below in para 20:
Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary grounds like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appellate Court will be res judicata and the appellate Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and if that is so the decision of the appeal Court will be res judicata whatever may be the reason for the dismissal....
59. This was founded on the proposition that 'where a decree of the trial Court is appealed from the decision of the trial Court loses the character of finality, and what was once res judicata becomes res judice (res-subjudice?) and it is the decree of the appellate Court which will then be res judicata'. As such merger was read even where dismissal of appeal was due to delay or non-printing of paper book.
60. For the case at hand, I do not propose to examine the question whether dismissal of a petition under Article 226 without passing speaking order would prevent re-approach under that article, as that is not the point involved here Reference may however be made to a recent decision of the Supreme Court in Jharia v. State of Rajasthan : 3SCR475 where it was held that if the Court had earlier declined to interfere with a matter under Article 136, a petition for the self same matter under Article 32 is not maintainable.
61. If the above legal position is borne in mind, there can be no dispute that the order of this Court in Jatin Mali has merged with that of the Supreme Court. It is, however, contended by Shri Medhi that as no reason has been given while dismissing the SLP. and as what was merely stated by the Court was that 'special leave petition is dismissed', it is not known what has really weighed with the, mind of the Supreme Court in dismissing the petition. Though this position is factually correct, legally it does not make a difference. The Supreme Court has not been giving reasons for dismissal of special leave petitions. In Associated Tubewells v. Gujarmal : AIR1957SC742 this practice was noted and the Court observed that it did not want to depart from the practice. Shri Medhi submits that recording of reasons is essential for validity of a decision and refers M.P. Industries v. Union of India : 1SCR466 . That decision has dealt with the necessity of recording reasons in orders passed by quasi judicial tribunals. The raison d'etre of the same Court in a petition under Article 136 of the Constitution in M.P. Industries itself it was negatived that an order which omits to give reason would be invalid on that ground alone. It was pointed out that in order of Court dismissing an application often gives no reason, but that is not sufficient ground for quashing it. (See para 18). As no appeal lies from the order passed by the Supreme Court in a petition under Article 136, one of the purposes requiring recording of reasons does not apply to such an order.
62. Further, the order as passed, and as communicated to this Court by the Registra of the Supreme Court under Memo No. D. 9233/83/SCCR. II dated 20.9.83 shows that the S.L.P. was dismissed on merits. Shri Medhi was fair in stating that the ground relating to non-consideration of the report must have been taken in the S.L.P. whether the same was urged in oral submission was, however, not known to him. As to the raising of this point in the petition, there is nothing to doubt, as this was one of the three submissions advanced before this Court m assailing the detention order. Indeed, this point must have been urged in the Court also, as the two other infirmities pointed out (1) non-existence of the ground and (2) vagueness of the same, are worn out submissions, whereas there is no direct decision of the apex Court on the point under consideration; and so the senior counsel appearing for Jatin Mali must have prayed, indeed pressed, for a decision on this important question. Be that as it may, as the order is definitely a final disposal of the appeal, and on merits, it cannot be said that this Court's order has not merged with that of the Supreme Court.
63. For the doctrine of merger to apply it cannot be said that the appellate order must contain reasons. It has been noted that sometimes though a case is heard for a few days, ultimately the matter is disposed of only by observing that no infirmity has been found in the main judgment and the appeal is dismissed. This is not a hypothetical situation but had happened in Cril. Appeal 542/81 H.K. Bhattacharyya v. District Magistrate which was heard by the Supreme Court for 8 days but the ultimate judgment to be passed was only this:
After hearing learned Counsel of the parties at very great length we are of the opinion that no interference with the impugned order is called for. The appeal is dismissed and the order directing the Government to release the appellant on parole is revoked.
Similarly, at times, it is observed that a particular order is set aside for which reasons (or detailed reasons) shall follow, but may not. This is what has happened in A.K.M. Hassan Uzzaman v. Union of India : (1982)2SCC218 . Of course, if while disposing of an appeal by speaking order, only one point is dealt with and the order is reversed, the decision of the lower Court on other points may remain unaffected as stated in Shri Prithivi Cotton Mills v. Broach Municipality : AIR1968Guj124 . Similarly, if while disposing of the special leave petition, the question of law is kept open, as was done in Management of D.T.C. v. B.B.L. Majale : AIR1978SC764 , it could not be said that lower Court's views on points of law have been confirmed. But when an appeal is disposed of after application of judicial mind, though without giving reasons, the doctrine of merger cannot be ruled out. The rider about judicial application of mind has been made because of the decision of the Privy Council in Chandri Abdul Majid. v. Jawahir Lal AIR 1914 PC 66 where it was observed as below when an appeal had been dismissed for want of prosecution:
The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognises authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all...there is no decree by His Majesty in Council in which it (the decree of the lower Court) had merged.
64. Because of above, I have no doubt absolutely in my mind that the order passed by this Court in Jatin Mali has merged with that of the Supreme Court. One of the points urged therein related to alleged infirmity in the order of detention because of non-consideration of the report by the Central Government. The comity existing between the two Courts prevents me to examine the matter afresh in this reference. It may, however, be stated that in taking this view, I may not be understood to have denied myself the right to reexamine the matter because of Article 141 of the Constitution, as I am not satisfied if any principle of binding nature on the point under reference can be read in the dismissal of the S.L.P. by the summit Court. So, the dismissal order cannot be taken to be a law on the question of the effect on non-consideration of report by the Central Government. I am however, desisting because of what has been stated about ' comity' between the two Courts.
65. Nonetheless, I have three comments to make. First, even if a matter is required to be considered by an authority, the non-consideration of the same may not always entitle an aggrieved person to approach a writ Court to seek redress. There are many administrative instructions or interdepartmental communications whose violation cannot be examined in a writ proceeding. Whether the present is such a matter, I do not propose to say anything because I am refraining myself from re-examining the issue because of what has been stated above. Secondly, when it was said in Bikash Narayan 1984 Cri LJ 81 (Gauhti) that the question relating to consideration of the report is a matter of 'complete discretion, this expression was used in a special sense (evident from the fact of its user within single quotes), and to distinguish it from 'discretion coupled with duty', (See para 12). It was never meant that any executive authority has unfettered discretion. This view could not have been taken after referring to Padifield 1968 1 All ER 694. Finally, Bikash Narayan has not said, indeed it could not have in the face of Sabir Ahmed : 3SCR738 noted in the decision, that the report need not be considered by the Central Government. (See para 9). What it really examined was the question relating to the effect of non-consideration : Whether the detenu could come in habeas corpus to seek his release on this score? This question has its undoubted importance for the detenu.
K. Lahiri, J.
I agree to the conclusion reached by my (earned brother Hansaria, J.