(1) These 84 applications, which have been filed by the detenus under Se action 491 of the Criminal Procedure code and Art. 226 of the Constitution of India, for a writ of habeas corpus, raise common questions of fact and law and can, therefore, be conveniently disposed of by a common judgment.
(2) For deciding the material points raised in these applications, a few facts, which are, more or less, common with variations of dates and other minor details which do not affect the decision of the case, may be outlined as follows:
(3) The general pattern of the facts in all these cases is as follows: On 29th December 1964, orders of detention were passed by the Commissioner of Police against some of the detenus under Rule 30 (1) (b) of of Defence of India Rules, 1962, framed by virtue of Se action 3 of the Defence of India Act, 1962. In some cases, these orders were passed on 30th December 1964. In respect of the applicants in Criminal Applications Nos. 465 to 481 of 1965, the orders of detentions were passed by the District Magistrate, Thana, on 29th December 1964. It can be stated in a general way that all the applicants had made applications under Se action 491, Criminal Procedure Code and Art. 226 of the constitution, for writs of habeas corpus challenging the validity of the orders of detentions passed against them by the various authorities. It may be mentioned that District Magistrate cancelled the orders of detention passed by him against detenus in Criminal Applications Nos. 465 to 481 of 1965, on 20th February 1965 and passed fresh orders of detention on the same day. The orders of detention dated 29th December 1964, had been challenged in the High Court on the ground that the District Magistrate had failed to make report forthwith as required by Rule 30-A. That seems to be reason why the orders dated 29th December 1964, were cancelled and fresh orders of detention passed on 20th February 1965. the orders of detention dated 20th February 1965, also were challenged in the High Court. That means that on the crucial dates. viz., 10th March 1965 and 11th March 1965, when the Central Government passed orders of detention in all the cases, habeas corpus applications were pending in the High Court. these hebeas corpus applications were fixed for hearing in the High Court on 22nd March 1965. In the meantime, while the applications were pending before the High court and were to come up for hearing on 22nd March 1965, the Central Government passed order of detention against all the applicants; orders against some were passed on 10th March 1965 and against others on the 11th March 1965. The hearing which was scheduled to take place on 22nd March 1965, came to be adjourned to 29th March 1965. On that date all the applications came to be dismissed as fruitless on the ground that the detenus were under detention by the orders of the Central Government passed on the 10th and the 11th. The State Government cancelled the orders of detention passed by the Commissioner of Police on 30th December 1964 and by the District Magistrate on 22nd February 1965. the orders of detention passed by the Union Government, were served on the detenus on 14th March 1965. what is pertinent to note is that the orders of detention which are now challenged in these applications have been passed by the Union Government either on the 10th of March 1965 or the 11th March 1965.
(4) By way of illustration, we may set out the order of detention passed by the Central Government in respect of petitioner Anant Bhaurao Savant in Criminal Application No. 460 of 1965. The wording of the other orders is similar in material particulars to the wording of this order. The order runs as under:
GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS
Whereas the Central Government is satisfied that with a view, to preventing shri Anant Bhaurao Savant from acting in any manner prejudicial to the defence of India, civil defence, the public safety and the maintenance of public order, it is necessary to make the following order;
Now, therefore, in exercise of the power conferred by clause (b) of sub-rule (1) of Rule 36 of the Defence of India Rules, 1962, the Central Government hereby directs that the said Shri Anant Bhaurao Savant be detained. And in pursuance of sub-rule (4) of Rule 30 of the said Rules, the Central Government hereby determines that the said shri anant Bhaurao Savant be detained in Arthur Road District Prision, Bombay., and unless otherwise directed by the Central Government, so far as may be, under the same conditions, as to maintenance, discipline and punishment of offences and breaches of discipline as have been provided for in relation to security prisoners under the Bombay Conditions of Detention Order, 1951 [referred to in the Government of Maharashtra, Home Department (Special), No. SB.III/DOR.1162-III dated the 9th November, 1962] which shall for this purpose apply as if any reference therein to Government also included a reference to the Central Government.
By order and in the name of President
(Signed) B. S. RAGHAVAN,
Deputy Secretary to the Government of India.
Seal of Government of India,
Ministry of Home Affairs,
10th March 1965.'
(5) The material averments contained in these applications may be summed up as follows: In the first place, the petitioners were detained under the orders of the authorities, such as, Commissioner of Police, Bombay, and the District Magistrate, Thana, on 29th and 30th December 1964 along with hundreds of communists all over the country at the instigation of the Union Home Minister, New Delhi. According to the petitioners, the real object in issuing the orders by the Union Government was to prevent the formation of the Communist Ministry in Kerala, which the Communist Party could have accomplished with the co-operation of other left parties. On the day the Central Government passed the orders of detention, the hebeas corpus petitions were pending. As a matter of fact, they were fixed for hearing on 22nd March 1965. The Union Home Minister was a party to all those petitions. The main ground on which the orders of detention are challenged as invalid is that the said orders were passed while the orders of detentions passed by competent authorities, such, as the Commissioner of Police, Bombay, and the District Magistrate, Thana, were in force and also because they were passed during the pendency of the habeas corpus petitions filed in the High Court. The Union Home Minister, who is added as respondent No. 1 in these proceedings, had made a statement on the All-India Radio on the 1st January 1965,containing untruthful, wild and baseless allegations, falsifications, fabrications and fictitious distortions. The orders of detention dated 10th March 1965 and 11th March 1965. therefore, are male fide. The orders of detention have been passed by the Union Home Minister in collusion with the State Government, Maharashtra.
(6) It is contended that, there was no possibility of the Union Home Minister having been satisfied about the requirement of detaining the petitioners in view of the fact that the petitioners were already under effective detention as a result of the orders passed by competent authorities. The orders are also mala fide, inasmuch as, they were made with a view to delay the review. It is on these broad allegations that the petitioners have challenged the validity of the orders of detention passed by the Central Government on 10th March 1965 and 11th March 1965. The Union Home Minister was added as respondent No. 1 to these applications. In the first instance, the Central Government was not added as a party to these applications. Later on, the applications were amended, and the Central government has now been added as party-respondent in all these applications. The State of Maharashtra has also been added as co-respondent. The Superintendents of Jails also have been added as formal respondents to these applications.
(7) The Union Home Minister has put in his affidavit and in a general way denied the correctness of the allegations contained in the applications. In the same way, the State of Maharashtra have also put in an affidavit denying the allegations so far as the orders issued by the authorities under them are concerned.
(8) Mr. Garg, Advocate, has appeared on behalf of the petitioners in two Applications Nos. 457 and 460 of 1965. In Application No. 491 of 1965, petitioners Samuel Augustine appeared personally before us and argued his case. Mr. Singhvi assisted by Mr,. Madan Phadnis appeared on behalf of the petitioners in the rest of the applications. Mr. C. K. Daftary Advocate-General of India assisted by the Solicitor-General and the Government Pleader, Bombay State appeared on behalf of the Central Government. The Government Pleader, State of Bombay, also appeared on behalf of the Government of Maharashtra.
(9) Before proceeding to discuss the points that arise for our consideration, it will be convenient to set out the rival arguments advanced before us. It may, however, be mentioned that, although a number of allegations have been made in the applications, the arguments confined themselves to a few of them. The main argument advanced by Mr. Garg is that the orders of detentions passed by the Home Minister are invalid and illegal for the simple reason that, at the time these orders were passed, the petitioner were already under detention. That being the case, it could not be postulated that they would commit acts prejudicial to the defence of India, public security, etc., so long as they were in prison. He, therefore, contended that, satisfaction, which is the condition precedent to the passing of a valid order, was absent, and, therefore, the orders passed are invalid. In support of his argument, Mr. Garg relied upon the decisions of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan, : 1964CriLJ257 , and in Makhan Singh v. State of Pubjab, : 1964CriLJ269 . He reinforced this line of argument by pointing out that, it is not the case of the Union Government, as put forward in the affidavit put in by the Union Home Minister, that at the time when he passed the orders of detention, he anticipated that the petitioners would be released. It is therefore, contended that, it is clear that the orders of detention have been passed in respect of persons who were incapable of indulging in prejudicial activities. It was further contended that the fact that the orders of detention passed by the authorities under the State Government, which were subsisting at the time, were withdrawn by the State Government after the Central Government passed fresh orders of detention, is indicative of the fact that the State Government and the Central Government were acting in collusion with on another. It was suggested that it was at the instance of the Central Government that the State Government withdrew the previous orders of detention passed by the authorities under their control. Mr. Singhvi, who supported the line of arguments pursued by Mr, Garg, went a step further and stated that, it is clear on the faces of these orders that they were passed in respect of persons who were already in detention. Mr. Garg also contended that the primary evidence as to what was passing on in the mind of the Central Government when they passed the orders of detention, that is to say, whether they were anticipating the release of the petitioners, would be the statement of the Union Home Minister. He pointed out that the statement not only is silent on that point, but it is implicit in the statement that the orders of detention were passed in respect of persons who were in detention. It is pointed out that there is nothing to indicate in the affidavit that the Union Home Minister at any time expected or apprehended that the prisoners would be released in the near future, and, therefore, in anticipation, he passed the orders of detention. Mr. Garg strenuously contended that, in the absence of the primary evidence of the Union Home Minister, it would not be permissible for the Central Government ot rely upon the circumstances throwing light on the question as to what was passing on in the mind of the Union Home Minister. Mr. Garg advanced no argument on the question mala fides except to refer to the allegation contained in the petitions, viz., that the detentions were effected with a view to block the formation of a Ministry in the State of Kerala by the Communist Party who formed the largest single group in the Legislative Assembly Mr. Singhvi, however, laid some stress upon the question of mala fides and argued that the orders of detention were passed for a collateral purpose, that is to say, with the object of delaying the reviews, and , in fact, the orders of detention did delay the review contemplated under Rule 30-A of the Defence of India Rules.
(10) Mr. Daftray, the Attorney-General, on the other hand, contended that valid orders of detention could be passed even when the persons in respect of whom they have been passed are under detention. As an abstract proposition of law, there is nothing in the Defence of India Rules, to prevent the detaining authority from passing such orders while the detenus are already under detention or in prison. The Attorney-General further argued that, it is open to the Central Government to rely upon the circumstances, such as that petitions were pending before the High Court, in which the val;idity of the orders of detention was challenged and also the circumstances that the Union Home Minister was a party to these petitions, and, therefore, knew what were the allegations on which the petitions were based. He argued that it is not necessary that the Union Home Minister should make an affidavit stating in so many words that he anticipated or apprehended the release of the petitioners, and, therefore, passed the orders of detention. For that purpose, the Attorney-General stated that he was entitled to rely upon the surrounding circumstances and inferences that can legitimately flow therefrom. Alternatively, he contended that, it is clear from the circumstances of the case that hundreds of orders of detention were passed on the same day in respect of hundreds of detenus in more than one province. It is, therefore, possible to perceive a plan behind this widespread operation, viz., that the Union Government felt the need of passing orders of detention themselves instead of leaving the matter in the hands of the State Governments and their delegates. He further suggested that it would be quite reasonable if the Central Government expected that the State Governments would fall in line and withdraw the orders of detention passed by them or the authorities under their contraol. He also suggested that it was open to the Union Government to give directions to the State Governments calling upon them to withdraw or cancel the orders of detention already passed by them.
(11) It is significant that both sides have been placing reliance upon the decision and also the dicta in the two cases of the Supreme Court referred to above. In fact, the entire superstructure of the arguments on both sides is based upon the ratio of those decisions. It will therefore, be convenient to analyse these two decisions and see how far these decisions or the observations contained in them assist us in deciding the points in issue.
(12) The facts in the first case, that is, in Rameshwar's case, : 1964CriLJ257 were as follows: One Rameshwar Shaw was an undertrial prisoner and was in jail custody. The District Magistrate, Burdwan passed an order on 9th February 1963 under Se action 3 (1) of the Preventive Detention Act. The order recited that the District Magistrate was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. This order was served on the petitioner on February 15, 1963 in Burdwan Jail, where he had been kept as a result of a remand order passed by a Court of competent jurisdi action which had taken cognizance of a criminal complaint against him. It was urged that the order was bad in law in view of the fact that the prisoner was already in custody, and, therefore, was incapable of carrying on activities prejudicial to the public order or public safety. It was further urged that the order was bad also because the same was served on the detenu while he was in jail custody. It was incidentally contended that there could not be proper satisfa action of the detaining authority about the need of detaining the detenu merely on the basis of his past activities. The Supreme Court held that the past conduct can form the basis of the satisfa action as it will indicate as to how the petitioner is likely to behave in future. They also held that as an abstract proposition of law, there is nothing in the provisions of the Preventive Detention Act to prevent the detaining authority from passing an order of detention while the detenu is in custody. It is necessary to refer to the actual words used by the Supreme Court in this connection. At page 338, paragraph 12, Their Lordships have observed;
'As abstract proposition of law, there may not be any doubt that Se action 3(1) (a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in conne action with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.'
Thereafter, Their Lordships proceeded to give two significant illustrations. As the first illustration, their Lordships took the case of a person who was sentenced to rigorous imprisonment for ten years. Their Lordships pointed out-
' 'It cannot be seriously suggested' that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him.'
In other words, Their Lordships considered the importance of the consideration of the proximity of time in passing orders of detention. When the prisoner is in jail and is vet to undergo a long term of imprisonment,and the order is passed which is to come into operation after the period of sentence is over, it is evident, in such case, that the possibility of the detenu indulging in prejudicial activities is too remote. The order of detention passed in such circumstances can hardly satisfy the requirements of satisfa action which is a prerequisite of passing of the order of detention. The Supreme Court then took up another illustration, and that was of a person who was undergoing imprisonment for a short period, say, for a month or two, and, it was known that he would be released from jail soon. Their Lordships pointed out that, it may be possible for the authority to consider the antecedents of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and, if the authority is bona fide satisfied that such detention is necessary, it can make a valid order of detention a few days before the person is likely to be released. The Supreme Court has given these two illustrations with a view to emphasize the importance of the proximity of time. According to them, a valid order of detention could be passed in respect of a person who is already in jail and is likely to come out of the jail within a short period, and, it would be possible to predicate in respect of that person on the basis of the past history and the antecedents that he is likely to indulge in prejudicial activities as soon as he regained his freedom. The Supreme Court, however, has been careful in pointing out that the instances given by them were illustrative and could not possibly be exhaustive. They added the caution-
'Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.'
(13) The Supreme Court then turned to the question about the validity of the service of the order of detention which was effected while the detenu was in cutody. '. . . . . . . . . . . . On these facts, what we have to decide is; was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in jail?' they then referred to the process of the making of the order of detention and the various stages through which that process passes. the first stage is to examine the materials adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the material found is satisfactory, then there is basis for making a proper order of detention. The next stage is reached when the authority has to consider the necessity of preventing him from acting in a prejudicial manner, and, while considering that question, the authority has to be satisfied that the person if not detained would act in a prejudicial manner, and, this inevitably postulates the freedom of a action to the said person at the relevant time. they answered the point by posing a question in the following manner:
'If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner?
Then they proceeded to observe- 'At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is consideration which would be absent when the authority is dealing with a person already in detention. The satisfa action that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under Se action 3(1) (a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by Se action 3(1) (a) and is outside its purview.'
In the concluding paragraph, they referred to the decision of the Assam High Court in Sahadat Ali v. State of Assam , and stated that the facts of that case illustrated how an order of detention can be passed against a person even though he may be in detention or jail custody and also how the said order should be served on the detenu after he is released. It is thus clear that distin action was drawn between the making of an order and the service of that order. Although, generally speaking, there is nothing to prevent the authority from passing an order of detention against a person who is in custody, still the order could not be validly served on that person so long as he is in custody. It is equally important to note that, although in Rameshwar's case. : 1964CriLJ257 the Supreme Court held that the order of detention was invalid, still that verdict appears to have been based on the circumstance that, at the time of the service of the order also the detenu was in jail, and, therefore, it could not be predicated in respect of him that he was likely to indulge in prejudicial activities.
(14) The decision in this case has been explained by the Supreme Court in a subsequent case in : 1964CriLJ269 . Before dealing with the facts in Makhan Singh's case, : 1964CriLJ269 it would be useful to refer to the passages appearing in that judgment in which the Supreme Court has explained the effect of the decision in Rameshwar's case, : 1964CriLJ257 . After referring to the question posed by them in the earlier case viz., 'if a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner?', they referred to the two illustrations given by them and also to the distin action between the making of an order and the service thereof. At p. 1123, they have observed-
'. . . . . . . . . . . the effect of the said decision is that an order of detention cannot be validly served on a person who is already in jail custody and in respect of whom it is rationally not possible to predicate that if the said order is not served on him, he would be able to indulge in any prejudicial activity.'
At paragraph 9 also they observed-
'. . . . . . .. . . . his application was allowed and he was ordered to be set at liberty on the ground that the service of the order detaining him was effected when he was in jail.'
(15) The facts in Makhan Singh's case : 1964CriLJ269 were as follows:
On October 22, 1962, F. I. R. was filed at the Police Station, Jandiale, that offences under Sections 307, 324, 364 and 367, Indian Penal code, had been committed by certain persons indulging the appellant. In pursuance of the investigation which commenced on the receipt of the said F. I. R., the appellant was arrested on October 25, 1962. On October, 26, 1962, Emergency was declared by the President. On November 1, 1962, the appellant was transferred to judicial custody of the Sub-Divisional Magistrate, Amristar. On November 20, 1962, an order of detention was passed against the appellant under Rule 30 (1) (b) of the Defence of India Rules, 1962. This order was served on the appellant on November 21, 1962, and, it appears, he was removed to the jail at Hissar. On January 30, 1963, he was brought back to Amristar, and, on February 9, 1963, he filed the writ petition.
(16) Mr. Garg, who appeared on behalf of Makhan Singh in that case, urged two contentions before the Supreme Court. The first was that the order was invalid, inasmuch as, it was made in respect of a person who was in custody at the time of the making of the order. Secondly, the order was invalid also by reason of the fact that, at the time it was served, the detenu was in jail. Mr. Garg naturally relied upon the decision in Rameshwar's case, : 1964CriLJ257 in support of both these propositions. The Supreme Court pointed out that they had left the question about the validity of the order in Rameshwar Shaw's case, : 1964CriLJ257 undecided, and that the decision was pronounced on the basis that the order was served while the detenu was in custody. The Supreme court did not pronouncing a verdict on the validity of the making of the order on the ground that the material placed before them was not sufficient ot reach a conclusion one way or the other. They reiterated the proposition laid down by them in Rameshwar Shaw's case, : 1964CriLJ257 viz., that as an abstract proposition of law, there was nothing in the Preventive Detention Act, or the Defence of India rules to prevent the detaining authority from passing an order of detention against a person who was already in custody. They also had in their minds the two illustrations given by them, and , in particular, the second one, which envisaged that the person concerned was serving a short term of imprisonment, that the term was to expire soon, and that, in anticipation of his release, an order was passed a few days prior to the release with a view to prevent him from indulging in prejudicial activities after he is released. At p. 1125, their Lordships explained as to why they did not record any finding on the validity of the order of detention in Rameshwar's case, : 1964CriLJ257 by saying-
'It would be recalled that in that case also, Rameshwar Shaw was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid. In fact, this Court made no finding on that question and based its decision on the narrow ground that the service of the order was invalid. We propose to adore the same
course in the present appeal.'
After saying so, their Lordships proceeded to point out as to under what circumstances a valid order of detention could be made when the detenu is already in custody, and, in that connection, referred to certain possibilities which would have to be taken into account by the detaining authority-
'In dealing with the question about the validity of the making of the order, it would be necessary to ascertain some more relevant and material facts. Even though the appellant was in jail custody, it is not unlikely that he could have applied for bail and might have obtained an order of bail, and bearing that contingency in mind, the appropriate authority would be justified in making an order of detention against the appellant,. provided of course, the authority waited for the service of the order after the appellant was released on bail; so that, on principle, it would be difficult to state as general proposition that an order of detention cannot be validly made against a person who is in jail custody for the reason that investigations proceeding in regard to an offence alleged to have been committed by him. In fact, as we have already pointed out in the case of Rameshwar Shaw, : 1964CriLJ257 . . . . . . as an abstract proposition of law, this Court has held that an order of detention can be validly made against a person in jail custody. Whether or not the said making of the order is valid in a particular case may have to be determined in the light of the relevant and material facts. In the absence of any such facts in the present case, we do not think we would be justified in dealing with Mr. Garg's argument that the making of the order was invalid. In fact, we were told that after the criminal case pending against the appellant was transferred from Amritsar to a Court of competent jurisdi action in U. P. the said Court has allowed the appellant's application for bail, subject of course, to his detention under the impugned order of detention; and so, the possibility that the appropriate authority might have apprehended that the appellant would move for bail and might succeed in that behalf, cannot be ruled out in dealing with the question about the validity of the making of the order. Besides,. when a person is in jail custody and criminal proceedings are pending against him, the appropriate authority may, in a given case take the view that the criminal proceedings may end very soon and may terminate in his acquittal. In such a case, it would be open to the appropriate authority to make an order of detention, if the requisite conditions of the Rule or the se action are satisfied, and serve it on the person concerned if and after he is acquitted in the said criminal proceedings.'
It will thus be seen that their Lordships have added two more illustrations to the two illustrations which were mentioned in Rameshwar's case. : 1964CriLJ257 . One is the possibility of the detenu making an application for bail and getting an order for bail. If the contingency is borne in mind and an order of detention is passed on that basis the order is valid. The second is, when the person in jail is prosecuted, and the authority took the view that the criminal proceedings may end very soon and may also terminate in his acquittal, in which case again, a valid order of detention can be passed.
(17) It is important to note that, although as many as three affidavits were put in on behalf of Makhan Singh; in none of the affidavits it was stated that Makhan Singh was about to file an application for bail. It appears that, as a matter of fact, no application for bail was made when the application for writ of habeas corpus was filed. An application was made later, and, before the time the appeal came up before the Supreme Court, Makhan Singh had already been released on bail. There was no other material placed before the Court about the progress of the criminal prosecution in which Makhan Singh was involved. That is why their Lordships referred to the paucity of the material furnishing a possible basis for the passing of a valid order of detention although, the detenu was then in custody. In other words, the various possibilities that have been hinted at as forming the basis for the passing of a valid order are just possibilities and were not based on any averment contained in affidavit or any other evidence. The two possibilities which were stressed as forming the basis of passing a valid order of detention were, (i) that Makhan Singh may apply for bail and he may succeed in securing a bail; (ii) the criminal prosecution may end soon and may result in his acquittal.
(18) Mr. Singhvi contended that the illustration mentioned in Rameshwar Shaw's case, : 1964CriLJ257 and the possibilities mentioned in Makhan Singh's case, : 1964CriLJ269 and the observations based thereon are in the nature of obiter dicta and do not form an integral part of the decision. He pointed out that their Lordships expressly refused to make a finding on the question of validity of the order passed in Makhan Singh's case, : 1964CriLJ269 . They refused to pass a verdict on the ground that the material placed before them was insufficient and scanty, and, it was in that conne action that they referred to the two possibilities, viz., that, of an application for bail succeeding, and, the possibility of the the petitioner's securing an acquittal in the near future. The proposition that was canvassed on behalf of Makhan Singh for acceptance by the Supreme Court was that in no case other than a case when the release of the prisoner was imminent could a valid order of detention be passed. It was with a view to expose the sweeping character of the aforesaid proposition of law and to refute the same that their Lordships have taken certain hypothetical instance and pointed out that, in respect of such cases, a valid order of detention could be made even though the detenus are not free to indulge in prejudicial activities.
A decision was invited on that point, and if the Supreme Court pronounced a decision, in that circumstance, we do not think that the observations could be treated as obiter dicta. In any case,even the obiter dicta of the highest Court are binding upon the Courts subordinate to it. Itis clear that the Supreme Court has laid down well considered propositions, and, it is not as if they have made passing or incidental remarks. The observations have come to be made in the course of discussion on the very point which was hotly canvassed before their Lordships.
(19) It is in the light of the two decisions of the Supreme Court set out above, on which both sides rely that we have to consider the facts and circumstances of this case. The facts over which there is no dispute are these: On the date the Union Home Minister passed the orders of detention, the applications filed by the petitioners for their release under Se action 491, Criminal Procedure Code and Art. 226 of the Constitution of India, were pending. They were to be heard on 22nd March 1965. The petitions were based on the allegations that the orders of detention passed by the authorities subordinate to the State Government were passed at the instigation of the Union Home Minister. Reliance was placed on the circumstance that hundreds of communists all over the country were arrested and detained on the same day. It was a countrywide operation and revealed that there was a common plan behind the same. In other words, the contention was that the detaining authorities had not applied their own minds and had not arrived at their own satisfa action about the need of detaining the prisoners. They had failed to examine the individual cases and acted as conscious automata. The Union Home Minister was a party to these proceedings, so also, the State of Maharashtra also was a party to these Proceedings. The petitions were contested by the State Government. The Union Home Minister was made a party apparently because, according to the petitioners, their detentions were effected at his instigation. In addition to the above, we have also the following few facts; It appears that, in the petitions pending before the High Court, the petitioners wanted to rely upon the circumstance that various authorities passed the orders of detention on the 29th and 30th of December, and that, on the 1st of january the Union Home Minister came out with a statement seeking the justification of these detentions. An argument could be founded on the juxtaposition of these dates and the justification sought to be made by the Union Home Minister that the authorities had not applied their mind and had not arrived at a satisfa action about the need of issuing orders of detentions, and that they acted at the behest of the Union Home Minister. the relevant facts about the position that prevailed in regard to the petitions pending in the High Court at the time when the Union Home Minister issued the orders of detention on the 10th were present to the mind of the Union Home Minister. The Union Home Minister could not predict as to what impact such averments and the arguments based thereon could produce on the mind of the Court. It was possible to conceive for him that the line of arguments put forward on behalf of the detenus could possibly be accepted by the High Court. It is this possibility which must have been present to the mind of the Union Home Minister at the time he passed the orders of detention of which stress was laid by the Attorney-General for supporting the argument that the orders of detention were necessitated by reason of the possibility having been considered by the Union Home Minister.
(20) Mr. Garg for the detenus contended that it is not permissible for the Court to speculate as to what might have passed in the mind of the Union Home Minister when he passed the orders of detentions. What passed in his mind is a matter which was within the special knowledge of the Home Minister. If he apprehended that the High Courts could release the detenus, and, he took that possibility into account,and, therefore, issued the orders of detentions, the Union Home Minister must come forward to say so. There is nothing to indicate on the affidavit put in by the Union Home Minister that he had borne that possibility into mind or had taken it into consideration while passing the orders of detentions. It is true that the affidavit does not state as a fact that, while passing the orders of detention, the Union Home Minister apprehended that the petitions would succeed and the detenus would be released. The affidavit is also silent on the question as to whether he considered that possibility, and, therefore, passed these orders. Mr. Garg relied upon Se action 60 of the Indian Evidence Act and argued that the direct evidence on this point would be the sworn statement of the Union Home Minister. He also referred to Se action 106 of the Evidence Act and argued that this is a matter within the special knowledge of the Union Home minister, and therefore, it was for him to disclose the state of his mind. Mr. Garg further contended that the question as to whether the Union Home Minister anticipated or expected that the detenus would be released by the High Court, has now become a fact ionissue; in fact, according to him, this is the only material fact on which the decision of the case depends. It is necessary to consider this argument carefully and closely and see how far it is valid.
(21) Before doing so, it may be mentioned that the settled law is that reliance can always be placed on circumstances and circumstantial evidence is as good evidence as any other evidence. The surrounding circumstances have been put on the record of the case, viz., the fact that petitions were pending. the nature of the averments on which the petitions have been based is also a matter on record. It is then a matter of inference or speculation as to what might take place in the Court of Law. It is clear that the decision could not be predicted, and, in any case, was not in the hands of the Union Home Minister and could not also be within his contemplation or comprehension. this was, undoubtedly, region of guess work, and, all that the Home Minister could do was to make an intelligent guess. The question for our consideration is whether the state of mind involving a guess or an intelligent guess or an inference can be regarded as a fact within the meaning of the expression in the Evidence Act. 'Fact' has been defined by the Indian Evidence Act, in S. 3 to include any mental condition of which any person is conscious; as has been observed by Lord Justice Bowan, 'the state of mind is as is, however, necessary to note that it is only a mental condition of which a person is conscious which falls with the inclusive definition of the term 'fact' Se action 14 of the Indian Evidence Act, says what facts showing the existence of state of mind are relevant. It runs thus:
'Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person,. . . . . . are relevant. when the existence of any such state of mind .. . . . is in issue or relevant.' the words used, viz., 'intention', 'knowledge', etc., are preceded by the expression 'such as'. Therefore, apparently, what follows is an illustrative list and is not necessarily exhaustive. On a close consideration, however, it appears to us that the list was exhaustive except in those cases where a special plea of unsoundness of mind, etc., has been raised. The expression used while defining 'fact', viz., 'of which any person is conscious' is significant in that connection. the object apparently is to make simple mental phenomena which could be inferred from the acts relevant. As soon as we are dealing with complex mental phenomena, such as, fear, apprehension, etc., there will be no guide on the basis of which we can prove those phenomena and raise an inference about their existence. We are, therefore, inclined to hold that distin action will have to be made between simple mental phenomena as mentioned in Se action 14, and complex mental phenomena. The question of the unsoundness of the mind stands entirely on different footing and need not detain us for the purpose of the discussion. In any case, it appears clear to us that an inference which is arrived at by a process of ratiocination does not stand on the same footing as a mental condition as defined in se action 3 of the Indian Evidence Act. As stated above, all that the Union Home Minister could do was to calculate as to the possible effect of the averments and circumstances prevailing in the petitions pending in the High Court. Any calculation could turn out to be correct or incorrect. Is it, therefore, necessary for the Union Home Minister to mention such a possible inference or calculation in his affidavit? It is settled that all that need be mentioned in a sworn statement such as an affidavit is facts. It will be difficult to categorize the guess or calculation which the Union Home Minister might indulge in as a fact.
(22) As repeatedly stated, however, there were certain facts which started in the face of the Home Minister. He had to take them into account. And, as a matter of fact, he has stated in his affidavit that he has taken all the material facts into account. In other words, he must have taken all the possibilities or the contingencies into account. It is clear from the fact that he tried to justify the detentions made by the different authorities in his broadcast and also the fact that he subsequently issued orders of detention, that he had arrived at a decision that it was necessary to take a action against the detenus. If that is so, as a reasonable man, should he not be expected to have taken all the possibilities into account and taken a action in the light of those possibilities? Admittedly, the petitioners were already in detention. The State Government, which was also a party to the petitions pending in the High Court, were opposing the applications. Ordinarily, therefore, we should expect them to continue the orders of detention. In spite of this, the Home Minister has intervened and taken action. could it be an act of superfluity? Could it be treated as an act of supererogation? Here we may refer to what can be called a twofold presumption that arises in such matters. Reference was made by Mr. Garg to a decision of the Supreme Court in the case of M/s. Pannalal Binjraj v. Union of Inida, : 1SCR233 , for the purpose of showing that the burden of proving mala fides against the authorities resting upon the aggrieved party is different from the burden which rests upon the prosecution. the prosecution must prove the guilt to the hilt. So far as the burden resting upon an aggrieved person on the plea of mala fides or malice is concerned, it is enough that an inference of malice could reasonably arise in the circumstances of the case. The learned Attorney-General relied upon the same case for a different purpose, viz., for the purpose of showing that there is a twofold presumption in respect of the actions taken a highly placed functionary as the Union Home Minister. Their Lordships have observed:-
'It may also be remembered that this power is vested not in minor officials but in top ranking authorities like the Commissioner of Income-tax and the Central Board of Revenue who act on the information supplied to them by the Income-tax Officers concerned. This power is discretionary and not necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is divested in such high officials.. . . . . . There is moreover a presumption that public officials will discharge their duties honestly and in accordance with the rules of law. . . . . . . . .'
Reliance was placed by the Supreme Court on their earlier decision in : 28ITR941(SC) Matajog Dobey v. H. C. Bhari. In the present case, the a action has been taken by no less a person than the Union Home Minister. the observations, therefore, would apply with greater force in these cases. It has always been the policy of Parliament that the discretion of exercising the power of detention should not be vested in petty officials but should be vested with highly placed top-ranking officers. the second presumption will be the presumption that, no man would act without motive. Nobody is expected to take a thoughtless or motiveless action. In fact, it was the suggestion put forward on behalf of the petitioners that there is a well conceived plan behind tha action taken against the petitioners and their compatriots throughout the whole of the country. In the circumstances, we think that a presumption could be drawn that the Home Minister acted after taking all the factors into account. Undoubtedly, he acted with a design. If that is so, we can reasonably presume that, he bore the contingency or the possibility of the High Court releasing the petitioners in the habeas corpus petitions, in mind in passing the orders of detention.
(23) Considerable reliance was placed by Mr. Garg on the sentence in Makhan Singh's case. : 1964CriLJ269 , viz., that 'Even though the appellant was in jail, custody it is not unlikely that he could have applied for bail and might have obtained an order of bail, and bearing that contingency in mind, the appropriate authority would be justified in making an order of detention against the appellant.' Mr. Garg put particular stress on the sentence 'bear that contingency in mind' and posed the question as to who says that he has borne this contingency in mind? In our view, that question is futile. All that needs to be borne in mind is the contigency, and, not a fact. Is it necessary for anybody to say explicitly that he took that contingency into account when a reasonable presumption could arise that he must have taken it into account? More than once, the Supreme Court has referred to the possibilities or contingencies to be taken into account. when they refer to relevant facts, they mention them with a view to say that, on the basis of those facts, the possibilities could and must arise. This, in our view, is the only correct reading or interpretation of the decision of the Supreme Court. It is enough if all the facts and circumstances were laid bare before the Court from which inferences could bedrawn. In Makhan Singh's case, : 1964CriLJ269 the relevant facts were not placed before the Court. One of them was, whether an application for bail was made or was in contemplation. Here the petitions were actually pending to which the Union Home Minister was himself a party, eo nomine.
(24) In this connection, we may refer to the arguments advanced by the learned Attorney-General relating to the difficulties of the Government in the matter of putting in the shape of an affidavit their anticipation of release or apprehension of release which, according to Mr. Grag, could alone form the basis of a valid order of detention. he pointed out that we must bear in mind that the habeas corpus petitions pending in the High Court were based on the allegation that a action was taken by different authorities under the States at the instigation of the Union Home Minister. Admittedly, hundreds of communists all over India were ordered to be detained by the various authorities. Mr. Nanda came out on the broadcast speech on the 1st January 1965, with full support of the a action taken in the different States. If Mr. Nanda stated in the form of an affidavit that he apprehended that the petitioners would be released in those petitions, it might mean that he laid himself open to the charge that he has accepted the responsibility for the detentions. further, it would be awkward to a person who occupied the status of the Home Minister of India to give expression to a feeling and put it in the form of an apprehension or anticipation to the effect that the prisoners would be released or were likely to be released by the High Court. We feel that there is considerable substance in the argument advanced by the learned Attorney-General. The learned Attorney-General went a step further and stated that it would not have been proper on the part of the Home Minister to have given expression to his feelings in that fashion. In any case, it appears to us, it was needless for the Home Minister to say that he had taken the possibility of their being released into account when he advised the President to pass the orders of detention.
(25) Another point on which Mr. Garg laid considerable emphasis was that the orders of detention must take effect from the date and the time they have been passed. He, therefore, contended that, all that need be taken into account is the fact that, at the time when the orders of detention were passed, the petitioners were in jail, and so, the orders passed could not be valid. In this conne action he referred to the provisions of rule 30-A of the rules under the Defence of India Act and pointed out that, for the purpose of review, the period begins to run from the date of the order. On the other hand the learned Attorney-General referred to sub-rule 6(a) of Rule 30, which provides that, an order under clause (b) of sub-rule (1) may be executed at any place in India in a manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, and, argued that the orders does not become operative before it has been served upon the petitioners. The learned Attorney-General also referred to Rule 141 of the Defence of India Rules, relating ot the manner of publication, affixation and defacement of notices. Sub-rule (1) of rule 141, however, begins with a non-obstante clause viz., 'Save as otherwise expressly provided in these Rules'. The learned Attorney -General, therefore, contended that rule 141 has no application so far as the service of the order of detention passed under clause (b) of sub- rule (1) of Rule 30 is concerned, because, there is a special provision for its execution. Mr. Garg pointed out that, sub-rule (6) of Rule 30 provides for the taking of a action under the relevant provisions of the Criminal Procedure Code, in a case where the Government has reason to believe that a person in respect of whom the order of detention has been passed has absconded. Mr. Garg says that this shows that certain consequences begin to flow from the moment the order is passed. The learned Attorney-General pointed out that, it is always open to the detaining authority to revoke or withdraw the order before the same has been served upon the petitioner which shows that there is no effective order till the same has been served upon the detenu. Mr. Garg's reply is that, it is always open to the authorities, who have made the order, to revoke or withdraw the same. That does not mean that the order is either inchoate or provisional. He conceded that the order would not be complete till it has been formally authenticated as provided by the rules of business under Articles 166 or 77 of the constitution. He, however, argued that, as soon as the order has been formally authenticated, it is a complete order. In our view, the discussion on this question is of academic significance so far as the decision of the points involved in this case are concerned. One thing is clear, and, it is this that there are two stages in the detention, viz., the making of the order, and, its service. Without the service of the order, the order, though passed, is infructuous, and in, that sense, inchoate. It is only after the implementation of the order by service that the order begins to be operative , in the sense that the petitioner will be taken in the custody by the appropriate authority. Whatever that may be, the Supreme Court has made a clear distin action between the two stages, viz., the making of the order and its service. They have pointed out that, it is not necessary for the passing of a valid order that the person was free at the time the order is made. The order is valid provided the same is passed with a view to forestall the indulging in prejudicial activities by the detenu after regaining freedom in the near future. At the same time they emphasized that at the time when the order is served, the prisoner must be a free man, free to indulge in prejudicial activities. If the argument advanced by Mr. Grag is accepted, then it would logically follow therefrom that no valid order of detention could be passed while the prisoner in respect of whom the order is passed is in jail or in custody. Once we come to the conclusion that the Home Minister passed the orders of detention in the expectation that the petitioners were likely to be released, the order is valid, provided, at the time the orders were served again, the petitioners were free men.
(26) Mr. Garg pointed out that in Makhan Singh's case, : 1964CriLJ269 although the Supreme Court refused to go into the question of the validity of the detention order and based their decision upon the circumstance that when the order was served the prisoner was in jail. Their Lordships eventually did set aside the order. He, therefore,argued that the making of the order and its service are integrally connected and could not be severed from one another. We do not find much substance in this line of reasoning. After observing that the order of detention passed in the expectation or in anticipation of the release of the prisoner would be valid. their Lordships proceeded to point out that, as a matter of fact, the order was served upon the prisoner while he was in jail custody. That circumstance would affect the so-called expectation or anticipation on which the order was based; it is not the time-lag between the making of the order and its service which is decisive on the point. It is possible to conceive of a case when the order has been served upon the detenu a few days after its making. the detaining authority could be entitled to wait till the prisoner is actually released. What is, however, more important to establish is that the detaining authority expected that the prisoner would be released within a reasonably short period of time. An element of subjectivity is implicit in the expectation or anticipation formed by the detaining authority. If it could be demonstrated that such an expectation could not be reasonably, probable e.g., from the fact that the authority had to wait for a long time for the prisoner to come out for effecting service, then that may affect the validity of the order.
(27) The learned Attorney-General pursued an alternative line of argument. He said in effect: 'Take the allegations contained in the petitions as they are. Assume that a short of all India operation was contemplated when the detention orders were passed by the Union Home Minister. Assume further that the Home Minister did not want to keep the matter of detentions in the hands of the State Governments or their delegates, because, the State Governments might cancel the orders, and the Central Government had no control, either over the State Government, or, the authorities under them. Assume again that the Central Government wanted to centralize these matters and bring them under an unified control'. He argued that, if the Central Government took a general policy decision, and, after examining the individual cases, decided on the line of a action and the persons against whom the same should be taken, would not the Central Government expect that the State Government would fall in line with the a action contemplated or taken by the Central Government? In that connection, he pointed out that, both in the centre as also in all the provinces, at the relevant time, there was State administrations which were under the control of the Congress Party. Given the desire on the part of the detentions, would they not oblige the Central Government by withdrawing or cancelling the orders of detention passed by them or by the authorities subordinate to them? He suggested that as a matter of commonsense, it would be reasonable for the Home Minister to assume that as soon as he took action, the State Governments would proceed to cancel the orders of detention passed by the authorities. He then raised the crucial question, would not the orders of detention be valid when they were passed in the reasonable expectation that the State governments would cancel the existing orders of detention? This is a novel situation for which no solution can be found in the cases decided so far. The Supreme Court did not contemplate this kind of expectation. The expectation or anticipation contemplated by the Supreme Court was one which arose from circumstances over which the detaining authority had no control. It is, therefore, possible to take the view that in holding that valid orders of detention could be passed on the kind of expectation mentioned by the learned Attorney-General, we would be extending the principle enunciated by the Supreme Court. It may also be possible to take the view that, in the circumstances mentioned by the learned Attroney-General, the Union Home Minister is not acting in the expectation that something might hapend, but, he is acting with the intention of bringing about a deliberate result, viz.., the release of the prisoners by cancellation of the orders passed by the authorities subordinate to the State Government. Even on these considerations, we are inclined to the view that the orders of detention would be valid although the release of the prisoners has been brought about by the passing of the orders of detention by the Central Government. It is enough that the result was in contemplation whether deliberately desired and designed or likely arise as a result of fortuitous circumstances. The Principle laid down by the Supreme Court, in our view, is not a rigid one. It is flexible and can be extended according to the circumstances of the case After holding that, as an abstract proposition of law, a valid order of detention could be passed against a person who is already under detention. The Supreme Court left the application of the principle to depend on the facts prevailing in each case. Although the illustrations they gave related to cases where the release contemplated did not depend upon the wish or the desire of the detaining authority, it would not be correct ot hold that the illustrations given were exhaustive. There may arise different set of circumstances, and, when, for reasons best known to himself, the authority contemplates or designs the result, viz., the release of the prisoners, and, on that assurance proceeds to pass an order of detention, the order, in our view, would be valid.
(28) The learned Attorney-General reinforced the above line of argument by saying that the Court should take into account the consitutional position under which it would be open to the Central Government to compel a sort of obedience to the a action taken by the Central Government. According to the learned Attorney-General, the aforesaid argument would be available even when a dire action is required to be given by the Central Government to State Government, in case the State Government Becomes recalcitrant for whatever reasons (e.g., because it is composed of a political party different from the political party in office in the Centre, or, for any other reason). In that connection, he referred to Article 353 of the Constitution, which runs thus:-
'While a Proclamation of Emergency is in operation, then-
(a) notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to nay State as to the manner in which the executive power thereof is to be exercised:
(b) . . . . . . . . . . . . . .'
He therefore, argued that it would be open to the Central Government to give directions to the State Government as to the manner in which its executive power is to be exercised and the directions would be in the nature of mandates Mr. Garg replied that the executive power of the State is confined within the limits of the powers of the State Legislature to make laws and does not extend beyond that. In that connection, he referred to Article 162, which runs thus:
'Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: . . . . . . . . . .'
The learned Attorney-General makes a twofold reply to this argument. firstly, he contends that Article 162 does not lay down an exhaustive definition of the executive powers of the State. In that connection, he refers to the power of the Governor to grant pardons or reprieves, to his power to summon, prorogue, dissolve the assembly and also to the power to nominate members ina certain proportion to the Council of a State. He, therefore, suggested that there is a residue of executive powers which has been left undefined by Article 162 of the Constitution. Secondly,. he referred to Article 256, 257 and 258 of the Constitution. Article 256 runs thus;
'The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.'
Article 258 provides - (material part set out)-
'(1) Notwithstanding anything in this Constitution.
(2) A law made by Parliament which applied in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.
(3) Where by virtue of this article,powers and duties have been conferred or imposed upon a State or officers or authorities thereof, there shall be paid by the government of India to the State such sum as may be agreed or , in default of agreement,as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of any extra costs of administration incurred by the State in conne action with the exercise of those powers and duties.'
The learned Attorney-General pointed out that, in the present case, the Parliament has passed the Defence of India Act, under which it has power to delegate certain powers to the States. In exercise of the powers the Central Government has delegated to the state Government the power to issue orders of detention under rule 30 (1) (b), It is evident that it is not within the competence of the State Legislature to pass any law in respect of the Defence of India. That means that, in the exercise of its ordinary executive powers, the State Government could not be competent to issue orders of detention in conne action with the Defence of India . Mr. Garg suggested that the power that has been delegated by an Act of Parliament is a part of the executive power of the Union. This argument is evidently incorrect in view of the language of Article 258 (2) of the Constitution. Once the Parliament confers certain powers and imposes certain duties by an Act of Parliament, the executive powers of the State Government to that extent would be enlarged. When the State Government acts, it acts in the exercise of executive powers. In this connection, reference may be made to the decision of the Privy Council in Emperor v. Sibnath Banerji . It is not necessary to refer to the facts of that case, for we are relying on certain dicta of the Privy Council which affords guidance for deciding the question under consideration. The Privy Council was considering the effect of se action 124(2) of the Government of India Act, the wording of which is similar to the wording of Article 258(2) of the Constitution. Se action 124(2) runs thus:-
'An Act of the Federal Legislature may, notwithstanding that it related to a matter with respect to which a Provincial Legislature has no power to make laws, confer powers and impose duties or authorise the conferring of powers and the imposition of duties upon a Province or officers and authorities thereof.'
It was argued before the Privy Council that the power that was conferred on the Province was a fraction of the executive power of the Federal Government, and, therefore, this power could be exercised only with the aid of the Federal Machinery . Their Lordships repelled this argument. Their Lordships also referred to se action 49 (2) of the Government of India Act, which , ineffect, provided that the executive powers of the province were co-extensive with the powers of the Legislature to make laws, and were not prepared to accept the proposition that the se action laid down the maximum limit of the executive powers of the province. The entire passage would be relevant and instructive. It runs thus:-
'Their Lordships are unable to agree with such a narrow reading of these provinsions, which would involve the necessity of the Federal Legislature making provision in each case for the executive machinery to carry out the powers and duties so imposed, instead of using the existing Provincial machinery. This view is supported by sub-se action (4) of se action 124, which provides inter alia that where an Act of the Federal Legislature, by virtue of sub-se action (2) confers powers and imposes duties upon a Province or offices and authorities thereof in relation to a matter with respect to which a Provincial Legislature has no power to make laws, the Federation is to pay to the Province such sum as is agreed, or determined by arbitration in respect of any extra costs of administration incurred by the Province in connection with exercise of those powers and duties. This appears to contemplate extra costs incurred by the existing machinery of Provincial Administration 'Their Lordships construe sub-se action (2) of se action 49 as providing an extensible limit and not a maximum limit, and the provisions of sub-se action (2) of se action 124, as affording a means of such extention. But, further, Their Lordships construe the incorporation of the General Clauses Act, both in the Defence of India Act, and in the Defence of India Rules with its reference in se action 3 (43a) to the provisions of Part 3 of the Act of 1935, as to the acting or non-acting or of the Provincial Governor, as necessarily embodying the relevant provisions of Chapter 2 of Part 3, including in particular Se action 49' (The italic (herein ' ') is ours).
It is true that the Government of India Act, 1935, contemplated a threefold division of the exercise of the executive powers by the Governor. In some respects, the Governor could act in his individual judgment. On some other topic, he could act in his discretion, and in some other cases, he could act on the advice of the Ministers. The Governor, under the Constitution of Inida, is enjoyed to act in all cases on the advice of the Council of Ministers. That distin action only affects the manner of the exercise of the executive power and not its extent. The provisions of se action 124 of the Government of India Act, 1935, are analogous provisions to Article 258, Article 258 is modelled on se action 124 of the Government of India Act, 1935. The powers conferred by the Defence of India Act, therefore, operate to extend the scope of the executive power of the State which is ordinarily co-extensive with its legislative powers. It is not necessary to consider the question as to whether the provisions conferring powers on the Governor, such as of granting pardon, summoning and proroguing the Assembly and nominating members to the Council of a State, amount to extension of the executive powers of the State. It is clear from the provisions of Article 258, that, even in normal times, it is open to the Parliament to pass a legislation conferring special powers and imposing special responsibility upon the State. When that happens, the executive power of the State Government is extended beyond the field contemplated under Article 166 of the Constitution. It is significant to note that when orders of detention are passed by the State Government the orders are expressed to be made in the name of the Governor and are duly authenticated in accordance with the provisions of Article 166. That indicates that the power exercised by the State Government is part and parcel of the executive power of the State. As soon as additional power is conferred on the State Government that becomes part of the executive power of that Government. Article 353 is an emergency provision, and, it begins with a non obstante clause 'Notwithstanding anything contained in this Constitution' This clause indicates that the powers of the Central Government to give directions are not confined to the limits laid down by the Article 166 Article 256 also lays down that the executive power of the State shall be so exercised as to ensure compliance with the laws made by the Parliament. It further empowers the Union Government to give such directions to a State as may appear to the Government of India to be necessary for that purpose (that is, to ensure compliance with the laws made by the Parliament). We must, therefore, hold that, it would have been competent to Central Government to issue directions to the State Government calling upon them to withdraw or cancel the orders of detention passed by the various authorities under their control. That means that the Union Home Minister could reasonably contemplate the prospect of the State Governments cancelling the orders of detention resulting in the release of the prisoners. It would not be unreasonable to presume that the Central Government in this case wanted the orders of detention to be served upon the petitioners after their release in view of the position at law discussed above. As a matter of fact, the orders of detention have been actually served after the orders of detention were cancelled by the State Government and the detenus were being released from the Prison.
(29) It is not necessary to go into the question as to whether the two Governments acted in concert. It was the case for the petitioners that the two Governments acted in collusion with one another, suggesting that the State Government cancelled the orders with a view to pave the way for the implementation of the orders of detention passed by the Central Government. In fact, the suggestion goes a step further and attributes provides knowledge to the State Government as a result of the consultation between the two Governments. The allegation about collusion has been stoutly denied by the Union Home Minister in his affidavit. The affidavit put in on behalf of the State Government of Maharashtra suggests that, not only there was no collusion, but the two Governments acted independently of each other. We must hasten to add that it is not the case for the Central Government that in fact there was any consultation between the Central Government and the State Government, or that there was any collaboration between the two, and that the actions that were taken in concert. In our view, there is no basis for the allegation of collusion between the two Governments, (the word 'collusion' has a sinister significance), although there may be some basis for inferring that there may have been some consultation and the a action taken was a product of co-operation between the two Governments. whether this is a case of consultation and co-operation, or a case where the State Government has taken the necessary action, viz., cancelling the orders because the Central Government had already passed orders of detention, and, they felt it their duty to oblige the Central Government, the position in law remains the same. The only substantial question that need be considered is, whether the Union Home Minister was satisfied about the need of keeping the petitioners under detention. That satisfa action will be complete if for whatever reasons he took the view that the prisoners might be released soon. That result could be anticipated on the basis of the proceedings pending in the High Court, it may as well be anticipated because of the fact that the Central Government and the State Governments belong to the same political party and also because, in case of the recalcitrance, the Union Government had the requisite power of compelling obedience from the State Governments. In our view, the a action taken by the Union Home Minister was justified on the basis of his expectation. As a matter of fact, the State Government did withdraw the orders of detention, and, it is exactly on that basis that the allegation of collusion has been founded.
(30) That takes us to the question of malice. It has already been pointed out that, although a number of allegations have been made attributing mala fides to the Union Home Minister, the argument was concentrated on only a part of these allegations, and, it was that the orders of detention were passed for a collateral purpose. Mr. Singhvi argued that the object in passing the orders of detention was to delay the ordinary review which has to take place periodically within six months. The earlier orders of detention were made on 29th or 30th of December 1964 and the reviews were due by about June at the latest . The orders under challenge were passed on the 10th and 11th of March. In the case of the present orders, the time of review if extended to September. Mr. Singhvi, therefore, argued that, as a matter of fact, the review in the case of these petitioners has been delayed by at least three months, which itself is an indication that the orders were passed with a collateral purpose i.e., delaying the review. We are not impressed by this argument. It may be that, as a matter of fact, the review which could have taken place in June could now take place in September. A period of six months is the maximum limit of time laid down by the rule. The reviews could be made at any time earlier. If the authorities, therefore, were disposed to review the cases of any of the petitioners, they could do so without waiting till the last date of the period laid down for the review. The argument based on the actual fact of delay having come up as a result involves the usual fallacy 'post hocero propter hoc'. Merely because, certain consequence has followed, it does not mean that that consequence can be casually connected with the antecedent event. No material has been placed before the Court from which an inference could be drawn that the Central Government was inspired with the object of delaying the reviews. As stated above, the reviews could take place at any time. The only question is whether the detaining authority is prepared or in a mood to review cases of the orders of detention which may result in cancellation.
(31) We have discussed all the points that were urged before us. All that needs to be mentioned is that Mr. Garge told us that, although he wanted to urge two more points, he would not urge them before this Court but reserve them for being placed before the Supreme Court. We are unable to understand how such reservation could be made before this Court, and, what is the use of any such reservation made here. After all, it is for the Supreme Court to decide as to whether any point not urged could be allowed to be taken up in appeal. The points which Mr. Garge reserved for the Supreme Court were : (i) Rule 30 is invalid as it is violative of Article 194, by reason of the fact that one of the detenus happens to be member of the State Legislature; and (ii) It was contended that the power under Rule 30 is exercisable only by the Central Government. Since it is power of the Central Government and vests in the President as the head of the Union executive, the President must delegate the power to a particular Minister as required by se action 40, and, it is only in that case that the Union Home Minister could be entitled to take a action under Rule 30. It is not open to the Government to rely upon the rules relating to allocation of business. Mr. Grag went so far as to say that he did not accept the correctness of the decision of the Privy Council in , wherein it was stated that the Ministers are subordinate to the Governor.
(32) We may now refer to two cases the facts of which are slightly different. Samuel Augustine, who is the applicant in Criminal Application No, 491 of 1965 contends that, although at one time he was a member of a communist party he had ceased to be such member after the communist party split into two viz., left wing and the right wing. Samuel Augustine, who argued his own case before this Court, contended that, it is clear from the broadcast statement of the Union Home Minister that the object of the Government was to take action against the members of the left wing of the communist party. He,. therefore, contended that, since he did not belong to the left wing of the communist party, it appears clear that there is no application of mind, and, therefore, the order of detention is invalid. Similarly, K. B. Marolia, who is the petitioner in Criminal Application No. 467 of 1965, has contended that he has never been a member of the communist party, that he was merely a Sarpanch of Vasa village and also a member of the Zilla Parishad, and that, a action appears to have been taken against him merely because he won the ele action of the Sarpanch against a congress candidate. Although, these two petitioners have stated that they did not belong to the community party, at any rate, at the relevant time, that by itself would not be sufficient to conclude that the orders are invalid because they were passed on account of their activities as members of the communist party. The only ground suggested for the inference that they must have been detained because of their communist leaning is that they have been rounded up along with the other left wing communists. We have no means of ascertaining as to whether the orders against these two petitioners were passed by reason of their activities as members of the left communist party, or, for other reasons. The mere coincidence that a action was taken against them along with the other members of the left wing communist party is no ground for holding that the base of the a action was the one suggested by the petitioners. Mr. Nanda has stated that he has considered all the relevant material before passing the orders of detention. The grounds on which the detention is based have not been stated and need not be stated, because these grounds are not justifiable. There is no substance in the arguments advanced by these two petitioners.
(33) We may mention another argument advanced by Samuel Augustine, and that was that, he was transferred from Nagpur Central Prison to the Arthur Road District Prison without an effective order from the Central Government. For this purpose, he relies upon the circumstance that he was transferred on the 25th March, and the order of transfer was served on him four days later, that is, on 29th March 1965. Mr. Agashe on behalf of the State of Maharashtra, in his affidavit has stated that the order was passed on 22nd March 1965. Mr. Raghavan, Deputy Secretary to the Government of India, Ministry of Home Affairs, New Delhi, contended himself by saying that the order of the petioner's transfer from Nagpur Central Prison to Arthur Road District Prison was approved by the Central Government. Mr. Samuel Augustine contended that, had the order, as a matter of fact, been passed on 22nd March 1965, Mr. Raghavan,. who would be a party to that order, would not have failed to mention that fact in his affidavit. He further pointed out that it was not for Mr. Agashe to state that the order was passed on 22nd March 1965, because that was not a matter within his personal knowledge. We are not impressed by this argument. All that was stated in the petition was that there was no valid order of transfer. It was this averment that was traversed by Mr. Raghavan in his affidavit. Mr. Raghavan contented himself by stating that san action was given for the transfer. The order of transfer must have been communicated to the State Government and, there is, therefore, nothing wrong in Mr. Agashe stating categorically that the order of detention was passed on 22nd March 1965. As a matter of fact, the order admittedly was served on 29th March 1965, and the order of transfer purported to bear the date 22nd March 1965. Unless, therefore, there is anything from which it can be inferred that the order was antedated, we must hold on the facts of the case and admissions of the petitioner that valid order was passed on 22nd March 1965. Assuming that no order for transfer was passed, it is an admitted fact that his petition was posted for hearing in the High Court on 29th March 1965. An order for produ action of the prisoner had already been made by the High Court. It was, therefore, the duty of the jail authorities at Nagpur to transfer the prisoner in proper time to the Arthur Road Prison so as to enable the latter authority to produce him at the time of the hearing of the petition before the High Court. Admittedly, he was actually brought from Nagpur to Bombay on the 25th and kept in the Arthur Road District Prison. He was produced before the High Court on the 29th. We do not think that there was anything illegal about the transfer of the prisoner from the Nagpur Central Prison to the Arthur Road District Prison, Bombay.
(34) It may also be mentioned that, with respect to the petitioner in Criminal Application Nos. 465 to 481 of 1965, Mr. Singhvi contended that the orders of detention passed by the District Magistrate on 29th December 1965, were not validly cancelled. The orders were passed on 29th December 1964 and were cancelled on 22nd February 1965, and, on the same day, fresh orders of detention were passed by the District Magistrate, Thana. Mr. Singhvi had challenged these orders by habeas corpus applications before the High court. Mr. Singhvi conceded that, if the order of detention dated 22nd February 1965, was invalid, the order dated 29th December 1964, would remain invalid, and, therefore, he would not press this contention as no useful purpose would served by pursuing this argument.
(35) Finally, we may mention that the petitioner in Criminal Application No. 506 of 1965 has died pending the applicatiion. The application, therefoe, does not survive, and, no order need be passed in respect of the same.
(36) The result is that all the applications fail and are dismissed. Rule in all the applications is discharged.
(37) Applications dismissed.