B.L. Hansaria, J.
1. This Court being the protector of the fundamental rights of the citizens, has to take a serious view when orders of detention are passed which even the counsel representing the State finds difficult to support and sustain. The present is a case of this nature. This would be apparent from the sole ground given for detaining the petitioner to prevent him from acting in a manner prejudicial to the maintenance of public order. We set out the grounds:
On 2.1.83 a closed door meeting of AAGSP, Jorhat was held at Chandra Kama Handique Bhawan, Jorhat, from 1 p.m. to 3 p.m. under the presidentship of Shri Prosenjit Boruah where the subject along with Shri Debeswar Saikia (Governor of AAGSP Jorhat), Surendra Nath Bordoloi Binanda Gogoi (both AJBD members, Jorhat), Rajib Bora (AJYGP, Jorhat), Niren Sarmah, Probhat Hazarika were the main participants. In the meeting they discussed about organizational matters as well as about ensuing election of Assam. They criticized the Govt. for alleged preparation the holding Assam Assembly Election Without solving the foreigners' problem of Assam and decided to resist the election by any means, if held before March 1983 without solving the foreigners' problem and for the purpose of resisting the election they urged upon all to be in readiness for taking part in next phases of agitation when announced by AASU/AAGSP.
2. No fault can be found in the democratic set up to which we are wedded, if people criticize the Government for an act which they think to be unreasonable. The petitioner was absolutely within his rights to have criticized the Government for making preparations to hold election without solving the foreigners' issue. The decision to resist the election 'by any means' cannot be taken to be a decision to create problem of public order. The means could have been absolutely peaceful and thus permissible under the law, this apart urging people to be in readiness for taking part in the next phases of agitation cannot be a valid ground to detain a. person unless it is known and stated when the next phase of agitation would start and what it be. Finally, it is a matter of extreme doubt if on a single incident like the case at hand, the required satisfaction could have been reasonably arrived at.
3. Realising perhaps the difficult position in the case, no return was filed on behalf of the District Magistrate and the learned Senior Government Advocate was fair in submitting that he is not in a position to sustain the order. We have felt sad in having noted not only the casualness of the District Magistrate but also the fact that the petitioner who is a Lecturer in J.B. College, Jorhat, was order to be placed in 2nd Class in Jail. It has been stated from the bar by Shri Bora that persons of lesser standing than the petitioner were given higher status in jail. May we remind the detaining authority that the provisions of the National Security Act cannot be used as a punitive measure:
4. Having noted the facts of the case we had ordered for the release of the detenu and being satisfied with the misuse of the power had also awarded a token cost of Rs. 500/- against the State. We had stated that a reasoned judgment would follow, and the above are our reasons for setting aside the order.
5. I would add a few words. The order of detention was to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order. The ground alluded speaks that the petitioner was a party to the meeting wherein 'they discussed about organizational matters as well as about ensuing election of Assam.' It also states that 'they criticized the Govt...and they urged upon all to be in readiness for taking part in the next phases of agitation when announced by AASU/AAGSP.' There is no inkling as to what the detenu said. There is no smell as to whether the detenu made the alleged statement that he would resist the election. Could the detenu be made liable for any alleged statement made by others and detained under the National Security Act, 1980 made vicariously. Apart from the fact that 'the subject', that the detenu was present in the meeting, I find nothing to connect the detenu with the alleged utterances said to be prejudicial to the maintenance of public order. Therefore, the ground does not disclose that the detenu was the author of any such alleged statement. If he were also the author of the statement 'the grounds' would have indicated as the detenu was referred as 'the subject' in the 4th line of the order extracted above.
6. The expressions 'to be in readiness for taking part in the next phases of agitation' are per se innocuous and cannot, by any stretch of imagination, come within the purview of 'public disorder'. In the absence of any material to show that 'the next phases' had any rational connection or nexus with public disorder, the impugned order made under Section 3(3) of the National Security Act, 1980 was invalid and without jurisdiction.
7. I agree with my learned brother that the impugned order is invalid and must be set aside. I also agree that cost should be awarded for the reasons (a) that the detenu is a responsible and respectable Lecturer of J.B. College of Jorhat, (b) that most disappointingly he was detained 'as 2nd class prisoner in Jail' and not as a detenu as contemplated under the National Security Act, 1980. It is undoubtedly a very disappointing order, to say very softly, (c) that the detenu had to expend money to defend his case before this High Court, and (d) that the detenu was deprived of the most cherished freedom, his 'personal liberty', on sleazy and frivolous excuse. I would describe the alleged ground of detention as 'groundless detention' in the eye of law.