Skip to content


Krishna Madhaorao Ghatate and anr. Vs. the Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application Nos. 903 and 995 of 1975
Judge
Reported inAIR1975Bom324; 1975CriLJ1828; 1975MhLJ822
ActsConstitution of India - Articles 14, 19, 21, 22, 141, 226, 358 and 359; Maintenance of Internal Security Act, 1971 - Sections 3, 3(1), 16-A and 18; Maintenance of Internal Security (Amendment) Act, 1975
AppellantKrishna Madhaorao Ghatate and anr.
RespondentThe Union of India and ors.
Appellant AdvocateV.R. Manohar and ;J.P. Pendsey, Advs.
Respondent AdvocateP.G. Palshikar, Adv., ;S.C. Chagla, Adv. for ;Addl. Govt. Pleader and ;M.G. Rajkarne, Asst. Govt. Pleader
Excerpt:
a) the case involved a writ petition challenging a detention order under the section 3(1) of the maintenance of internal security act, 1971 - it was contended that the detention order could not be challenged on any grounds - the court examined the scope and effect of the presidential order and held that the said contention was not sustainable;b) the case questioned whether the decision of the supreme court regarding the scope of article 359 of the constitution of india was binding on the high court - it was held that the high court did not have the power to shape down the import of the supreme court decision by drawing fine and subtle distinctions - if the provisions of the law considered by the supreme court are the same as considered by any of the lower courts, then the supreme court.....dharmadhikari, j. 1. these special civil applications under article 226 of the constitution of india and criminal applications under section 482 of the criminal p. c., 1973 read with arts. 226 and 227 of the constitution of india are filed for a writ of habeas corpus, or any other appropriate writ, order or direction for release of the detenus, who have been detained under the provisions of the maintenance of internal security act, 1971, as amended by the maintenance of internal security (amendment), act, 1975, referred to hereinafter as the misa. these petitions have been filed by the near relations of the respective detenus. various contentions have ben raised in these petitions challenging the detention and the continued detention of the detenus, which according to the petitioners is.....
Judgment:

Dharmadhikari, J.

1. These Special Civil Applications under Article 226 of the Constitution of India and Criminal Applications under Section 482 of the Criminal P. C., 1973 read with Arts. 226 and 227 of the Constitution of India are filed for a writ of habeas corpus, or any other appropriate writ, order or direction for release of the detenus, who have been detained under the provisions of the Maintenance of Internal Security Act, 1971, as amended by the Maintenance of Internal Security (Amendment), Act, 1975, referred to hereinafter as the MISA. These petitions have been filed by the near relations of the respective detenus. Various contentions have ben raised in these petitions challenging the detention and the continued detention of the detenus, which according to the petitioners is illegal. The detenus were detained under the orders of the Commissioner of Police, Nagpur, or the District Magistrate of the District concerned vide detention order served on them on different deters in June and July, 1975. Apart from the orders passed by these officers under Section 3(1) of the MISA, in all these cases a declaration was also issued by the competent authority under Section 16-A of the MISA, as the competent authority was satisfied that it is necessary to detain the detenus for effectively dealing with the emergency proclaimed by the President of India. These declarations were duly communicated to the detenus.

2. The respondents in these petitions, namely, the Union of India and the Commissioner of Police, have raised a preliminary objection contending that all these applications are not maintainable, nor they could be heard by this Court in view of the presidential Order promulgated on 27th June, 1975 issued in exercise of the power conferred upon the president under clause (1) of Article 359 of the Constitution of India. As the questions involved in all these petitions are identical and the common arguments were advanced before us by the learned counsel for the petitioners as well as the respondents, all these petitions are being disposed of by this common judgment.

3. It is contended by Mr. Chagla, the learned counsel for the respondents, Commissioner of Police and the State of Maharashtra, that in view of the Presidential Order dated 27th June, 1975 issued under Art. 359(1) these petitions cannot proceed, because, in substance, the petitioners are seeking to enforce their fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. According to him, in view of the presidential Order suspending the right to move any Court for enforcement of the rights k guaranteed under Articles 14, 21 and 22 and in view of the subsection of the provisions of Article 19 under Article 358, the petitioners cannot now challenge their detention on any ground whatsoever. Further in view of the amendments to MISA and particularly the amendments to Sections 16 and 18, even the procedural right conferred upon the petitioners by the MISA are also taken away, and therefore, according to whom, none of the grounds on which the detention of the detenus is challenged in these petitions is now available to the petitioners. He further contended that in the past a challenge was permissible in limited compass because the earlier Presidential Orders were conditional in nature. According to him, the present Presidential Order dated 27th June, 1975 is omnibus and a blanket one. It is all comprehensive and unconditional, and therefore, the pleas on which the detention could have been challenged in view of the earlier Presidential orders, are not now available to the petitioners and the said challenge is not now open in view of the present blanket and all comprehensive order issued by the president on 27th June, 1975. He further contended that a right of a citizen to liberty is guaranteed under Article 21 of the Constitution. As that right itself is taken away by virtue of the order issued under Article 359(1) , there is no further right to liberty de hors Article 21 of the Constitution, and therefore, these petitions are not maintainable. According to him, the law laid down by the Supreme Court in various earlier cases is of little assistance. In this context he has made a reference to the decisions of the Supreme Court in Makhan Singh v. The State of Punjab, : 1964CriLJ217 ; The State of Maharashtra v. Prabhakar Pandurang Sanzgiri, : 1966CriLJ311 ; K. Ananda Nambiar v. Chief Secretary to the Govt. of Madras, : 1966CriLJ586 and Ram manohar Lohia v. The State of Bihar, : 1966CriLJ608 . According to the learned counsel, in all these cases the Supreme Court was concerned with the conditional order. He further contended that the law laid down therein clearly indicates that if the Presidential Order would not have been a conditional one, then in these cases also the Supreme Court would have held that the petitions were not maintainable. In support of his contention he has drawn our attention to the various observations made by the Supreme Court in these cases. Therefore, in substance, it was contended by him that all the earlier decisions of the Supreme Court, which have carved out an area for judicial enquiry in the matters of preventive detention, are of no assistance in deciding the present controversy. According to him, in all these cases the Supreme Court dealt with conditional order and not with a blanket or comprehensive Presidential Order. On the contrary, from the observations made in these decisions which were based on a conditional order, it is clear that if the order would not have been a conditional one but was a blanket one, then from the very observations made by the Supreme Court an inference could safely be drawn that no challenge to the detention order on any ground was open. He further contended that it is not material as to how the matter was brought before the Court, but that is material is to find out as to what the petitioners substance intended to do. If in substance ultimately the petitioners the seeking enforcement of their fundamental right under Article 21, then in view of the Presidential Order they cannot be permitted to do so. He also contended before us that Makhan Singh's case has been duly explained by the Supreme Court in a subsequent decision, namely, Ram Manohar Lohia's case, and therefore, the observations made by the Supreme Court in Mahan Singh's case is no more good law. Shri Chagla has further contended that in view of the order issued by the President under Article 359(1) of the Constitution even the executive action resulting in the detention of a person is not open for challenge. According to him, it is not open for a citizen to demand enforcement of an injunction or otherwise incorporated in Article 21. Any breach of this injunction cannot be enforced in a Court of law in view of the suspension of Article 21 itself. He further contended that even the challenge that the detention of a person is not in accordance with the MISA is not now open to view of the blanket - Presidential Order. According to him, such a blanket order has been issued by the President for granting an omnibus protection to the executive actions during the period of emergency. He further contended that in view of the amendment to Article 359; namely the provisions of Article 359(1)(A) now the Articles mentioned in the Presidential Order are wholly suspended for all purposes. If in spite of such a blanket and general presidential Order it is held that the petitioners can approach this Court for a writ of habeas corups, then the very purpose of the Presidential Order will be frustrated and the Article 359(1) itself will be rendered nugatory. Therefore, according to Shri Chagla, even if the executive action is not supported by law, still it cannot be challenged, as a right to enforce right to liberty itself has been taken away.

4. Shri A. S. Bobde, the learned counsel appearing for Union of India, has supported this preliminary objections raised on behalf of the Commissioner of Police as well as the State of Maharashtra. While supporting the arguments advanced by Shri Chagla he contended that the right to liberty is now enshrined in Article 21 of the Constitution. There is no right to liberty outside the provisions of the Constitution. According to him, Article 19, 21 and 22 are the total repository of a right of person to liberty In pre-Constitution period Section 491 of the Code of Criminal procedure itself created right and granted a remedy. Now all these eights are codified in the Constitution. There was or is no common law or natural rights to liberty which is enforceable by the Court of law. In support of his contention Shri Bobde has relied upon the decision of the Supreme Court in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, : AIR1973SC1461 and has contended that there is no higher law above the Constitution. He further contended that Article 21 applies only to a State action and for this proposition he has relied upon a decision of the Supreme Court in Smt. Vidya Verma v. Dr. Shiv Narain, : 1956CriLJ283 . Shri Bobde further contended that by the present presidential order the powers or jurisdiction of the High Court under Art. 226 of the Constitution of India to issue a writ of habeas corpus are not wholly suspended. Though there is no initial want of jurisdiction in the High Court to entertain a petition for issue of a writ of habeas corpus, in view of the presidential Order there is want of locus in the petitioners to approach the Court for enforcement of their fundamental rights which are suspended. According to him, in view of the Presidential Order the locus standi of the petitioners is affected and now the petitioners have no locus standi to approach this Court for a writ of habeas corups. He further contended that in view of the fact that the MISA is now put in the Ninth Schedule by thirty-ninth amendment to the Constitution all challenges are barred. According to him, even the ground of challenge based on allegation of mala fides is also barred by virtue of the amendment to the MISA itself. He contended that by virtue of the amendment to the MISA it is not now necessary to record or communicate the grounds of detention to the detenue. If this is so, according to the learned counsel, the question of lac of bona fides or mala fides will not arise. In support of this proposition he has relied upon two decisions of the Supreme Court, namely, the District Collector of Hyderabad v. M/s. Ibrahim and Co., : [1970]3SCR498 and Mohd. Yaqub v. State of Jammu and Kashmir, : 1968CriLJ977 .

5. On the other hand it is contended by Shri Manohar, the learned counsel for the petitioners in Special Civil Applications Nos. 903 and 995 of 1975 that the pleas raised in these petitions and particularly the plea that the order passed by the detaining authority is not made in compliance with the provisions of Section 3 of the MISA and the same has been made in mala fide exercise of the power, are virtually outside the scope of Article 359(1) of the Constitution and consequently outside the scope of the present Presidential Order. He further contended that the pleas raised in the petition to begin within the scope of Article 359(1) itself, by Mr. Presidential Order issued under Article 359(1) they cannot be brought within the scope. According to the learned counsel, the power of the president to issue an order under Article 359 of the Constitution has got its own inherent limitation. The said power is restricted by the very words and the phraseology used in the said Article. Therefore, according to Shri Manohar, the filed held by makhan Singh's case still remains unaltered. He further contended that by the Presidential Order issued under Article 359, the provisions of Article 21 are not wholly suspended. Only the right of a parson to enforce his fundamental rights guaranteed under Article 21 is suspended and that too under circumstances. This obviously will not apply to a plea which is outside the purview of Article 359(1) of the Constitution itself. According to the learned counsel, Article 21 is in the nature of an injunction against the State and the injunction contemplated by the said Article is still in pration. The nature of the injunction against the State is that it shall not detain any person without the authority of law and this part of the Article is not suspended. Therefore, obligation of the State to act in accordance with law is not obliterated. he further contended that when a plea is raised by the detenus that the order passed is not in accordance with Section 3 of the MISA namely, the enactment under which he is detained, by raising such a plea the petitioner is not trying to enforce his fundamental rights either under Articles 14, 19 and 21 or 22 of the Constitution. By this the petitioners are only contending that the public authority, which must acting accordance with law or with some legal authority, has acted beyond the scope or without the sanction of the said authority and such a plea is outside the scope of Article 359 of the Constitution. He further contended that only because the order is issued by the President under Article 359(1) suspending enforcement of certain fundamental rights, the executive is not permitted to run its machinery without the authority of allow or without a legal sanction. The rule of law is not suspended. In a rule of law, the power of the executive is always limited by the laws of the country. It is not open to the executive to sit in appeal and decide whether the power exercised by it is in accordance the law or not. This is wholly the province of the judiciary. By ,ere issuing of an order under Article 359 it was not intended to condone all illegalities or to make lawless actions lawful. In support of his contention Shri Manohar has relied upon the decisions of the Supreme Court in Makhan Singh v. The State of Punjab; the State of Maharashtra v. Prabhakar Pandurang Sanzgiri; K. Ananda Nambiar v. Chief Secretary to the Govt. of Madras; Ram manohar Lohia v. The State of Bihar (cit, supra); Jaichand Lal Sethia v. The State of West Bengal, : 1967CriLJ520 ; Mohd. Yaqub v. State of Jammu and Kashmir and the District Collector of Hyderabad v. M/s. Ibrahim and Co. (cit supra). he also relied upon the decisions of the Supreme Court in Bennett Coleman and Co. Ltd. v. Union of India, : [1973]2SCR757 and Shree Meenakshi Mills Ltd. v. Union of India, : [1974]2SCR398 . Mr. Manohar has further relied upon an unreported decision of this Court in Smt. Shardadevi Kamdar v. State, Criminal Application No. 58 of 1974, decision of Delhi High Court in Manikben v. Union of India, (Criminal Writ No. 1 of 1975 , decided on 20-4-1975 and Smt. Bharati Nayyar v. Union of India, (Criminal Writ No. 121 of 1975, decided on 15-9-1975). He has also relied upon the decisions of the Madhya Pradesh High Court in Shivkant v. Additional District Magistrate, Jabalpur, 1975 MPLJ 662 and Haji Ibrahim v. The State of Madhya Pradesh . He has further relied upon two decisions of Allahabad High Court in Daya Shankar v. Union of India and Panna Lal v. The State of Uttar Pradesh . He has further relied upon two decisions of Allahabad High Court in Daya Shankar v. Union of India, and Panna Lal v. The State of Uttar Pradesh, . Shri Manohar has also relied upon a recent decision of the Supreme Court in Krishna Murari v. Union of India, (1975 S.C. Notes, Note No.230, page 259, decided on 15.7.1975) and a decision of the Madras High Court in M. Karunanidhi v. M. Raman Asstt. Commissioner of Police, Intelligence, Egmore, Madras, : AIR1968Mad54 . So far as the construction of the present Presidential Order is concerned, Shri Manohar contended that the order in general terms has been issued by the person can be detained or arrested. On previous occasions the orders were made by the President having regard to the specific enactment. Further, in some of the earlier orders, Article 22 as a whole was not suspended. He further contended that the 38th amendment to the Constitution, by which Article 359(1)(A) has been added, the position is not changed, as contended by Shri Chagla. According to the learned counsel, the said Article was amended to overcome the difficulty pointed out by the Supreme Court in Makhan Singh's Case, wherein it was observed that unless the Parliament was observed that unless the Parliament makes a law granting immunity, the immunity will not flow from the provisions of Article 359(1) itself as is the case with Article 359(1) itself, the petitioner are entitled to approach this Court praying for a writ of habeas corpus. In view of the above contentions raised by Shri Manohar before us, he has not gone into a general question as to whether apart from article 21 a person has a right to liberty, namely, the question as to whether apart from Article 21 a person has a right to liberty, namely, the question as to whether a person can claim a right to liberty is enshrined in Articles 19 and 21 of the Constitution alone. In view of these contentions, therefore, it is not necessary for us to go into the general question in this behalf.

6. Shri A.P. Deshpande, the learned counsel for the petitioner in criminal Application No.24 of 1975 has contended before us that the Government established by law has no unfettered discretion, nor its action can be immuned from judicial scrutiny or review. For this proposition Shri Deshpande has relied upon a decision of the Supreme Court in Khudiram Das. v. The State of West Bengal, : [1975]2SCR832 . He further contended that the provisions of the Presidential Order or the Constitution of India cannot be interpreted in a way which will take away a right of a citizen to approach the Court of law for seeking a right of habeas corpus either under Article 226 or Article 32 are not suspended. Therefore, according to the learned counsel, in spite of the Presidential order suspending certain fundamental rights a person cannot be detained without an authority of law. In support of his contentions he has relied upon two decisions of the Supreme Court, namely, Tirath Singh. v. Bachitar Singh, : [1955]2SCR457 and State of Madhya Pradesh v. M/s. Azad Bharat Finance Co., : 1967CriLJ285 .

7. Shri Pendsey, the learned counsel for the petitioner in Criminal Application No.36 of 1975 has contended that an obligation is cast upon the executive under Article 256 of the Constitution to act in accordance with the existing law. From this obligation a corresponding right flows in a citizen and the said right is outside Part III of the Constitution, and therefore, cannot be taken away by any order issued by the President under Article 359 of the Constitution.

8. For properly understanding the controversy involved in these petitions it is necessary to refer to the relevant provisions of Article 359 of the Constitution which are as under:

'359(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order.

(A) While an order made under Clause (1) mentioning any of the rights any of the rights conferred by Part III is in operation, nothing in that part conferring those rights shall restrict shall restrict the power of the State as defined in the said Part to make any law or to take executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, ceases to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.

(2) An order made as aforesaid may extend to the whole or any part of the territory of India.

(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.'

By virtue of the power conferred upon the president by Article 359(1) of the Constitution,. the President issued the following order on 27th June, 1975:

'G.S.R. 361 (E) - - In exercise of the powers conferred by clause (1) of Art.359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any Court for the enforcement of the rights conferred by Arts.14, 21 and Art 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force.

This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.

This Order shall be in addition to and not in derogation of any Order made before the date of this Order under clause (1) Art.359 of the Constitution.'

From the bare reading of this order it is quite clear that the order is worded in general terms. Further it cannot be forgotten that this order is in addition to and not in derogation's of any order made before 27th June, 1975 under clause (1) of Art.359. Initially the President had issued an order on 3rd November, 1962 as altered by an order dated 11th November, 1962 suspending the right of a person to move any Court for enforcement of the right conferred by Articles, 14, 21, and 22 of the Constitution of India, if such a person to move any Court for enforcement of the right conferred by Articles 14, 21, and 22 of the Constitution of India, if such a person is deprived of any such right under the Defence of India Ordinance , 1962 or any rule or order made thereunder. Thereafter second order was issued by the President on 16th November 1974. By this order the right of a person to move any Court with respect to the orders of detention, which have already been made or which may thereafter be made under S.3(1) (c) of the MISA, as amended by Ordinance 11 of 1974, for enforcement of a right conferred by Articles 14, 21, and 22 of the Constitution generally. By virtue of the provisions of Article 358 of the Constitution Article 19 is already suspended. In view of the amended Article 359(1)(A) of the Constitution, the same effect is achieved so far as Articles, 14, 21, and 22 are concerned, as a result of the present Presidential Order. However, in our opinion from this an inference cannot be drawn that a person is not entitled to approach the High Court under Article 226 of the Constitution of India for a writ of habeas corpus.

9. It is not disputed before us by the learned counsel for the respondents that the power and jurisdiction of this Court to entertain petitions to issue writ of Habeas Corpus under Art.226 of the Constitution is not suspended. However it is contended by them that though there is no want of jurisdiction in this Court to issue such a writ under Art.226, in view of the Presidential Order there is want of locus in the petitioners to approach the Court for enforcement of the suspended fundamental rights. The very locus standi of the petitioners is affected and therefore the contended on behalf of the respondents that though the Court's power to issue a writ in the nature of habeas corpus has not been touched by the Presidential Order, the petitioner's right to move the Court for a writ of that kind has been suspended by the order of the President, with the result that the petitioners have no locus standi to enforce their right, if any during the period when the Presidential, Order is in operation and hence these petitioners are not maintainable. It is not possible for us to accept these contentions.

10. In our opinion in a given case if it is shown that the pleas raised by the petitioners challenging the detention of the detenus are outside the scope of Art.359(1) of the constitution, then the said pleas are not affected by the Presidential Order issued under the said Article. The repository of a power of the President to issue an order suspending enforcement of the rights conferred by Part III of the Constitution during the period of emergency is contained in Article 359(1) itself. It is not necessary for us to deal with this aspect of the matter in detail in view of the authoritative pronouncement of the Supreme Court in Madhansingh's case.

11. However, a contention has been raised by the learned counsel for the respondent that the law laid down in Makhan Singh's case is no more a good law in view of the amendments made to the Constitution as well as in view of the present order of the President. According to the learned counsel for the respondents, the observations in the said decisions were based on a presidential Order which was conditional in nature and appeal to the cases where the order of detention was passed in strict compliance with the provisions of the Defence of India Act, or Rules or Order made thereunder only, and therefore, the Presidential Order was a conditional one and not a blanket or general, as is the case in the present petitions. The counsel for the respondents has gone to the extent of contending that the observations made by the Supreme Court in Makhan Singh's case were per incuriam and the law laid down therein is no more good law.

12. In our opinion there is no substance in this contention. in Makhan Singh's case apart from the presidential Order issued under Article 359(1) of the Constitution the very object and scope of Article 359(1) was fully considered by the Supreme Court. As to what is the object of Art.359(1) and the effect of the Presidential Order issued there under was fully considered by the Supreme Court in the said decision. The Supreme Court has pointed out the distinction between Article 358 and Art 359. The Supreme Court has also considered the question as to what are the pleas which are open to a citizen in challenging under Art.226 of the Constitution. While considering this question, in paragraphs 35-a 36 and 38 the Supreme Court observed as under:

'It still remains to consider what are the pleas which are now open to the citizens to take in challenging the legality or the propriety of their detention either under Section 491(1) (b) of the Code, or Article, 226(1) of the Constitution. We have already seen that the right to move any Court which is suspended by Art.359(1) and the Presidential Order issued under it is the right for the enforcement of such of the rights conferred by Part III as may be mentioned in the Order. If in, challenging the validity of his detention order, the detenu is pleading any right to move any Court in that behalf is not suspended, because it is outside Article 359(1) and consequently outside the Presidential Order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. in contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside Article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order.

Take also a case where the detenu moves the Court for a writ of Habeas Corpus on the ground that his detention has been ordered mala fide. It is hardly necessary to emphasise that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention is mala fide would not be enough; the detenu will have to prove the mala fides. But if the mala fides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by Art. 359(1) and the Presidential Order. That is another kind of plea which is outside the purview of Articles 359.

There is yet another ground on which the validity of the detention may be open to challenge. If a detenu contends that the operative provisions of the law under which he is detained suffers from the vice of excessive delegation and is, therefore, invalid, the plea thus raised by the detenu cannot the threshold be said to be barred by the Presidential Order. In terms it is not a plea which is relatable to the fundamental rights specified in the said Order.'

From the bare reading of these paragraphs it is obvious that the Supreme Court has referred to the pleas which has outside article 359(1) and therefore, has laid down that the right of the detenu to move a Court for his right of the detenu to move a Court for his release on such a ground cannot be affected by the Presidential Order. The phraseology used in this behalf is not that any of the grounds referred to in these paragraphs are merely outside the presidential Order. In the said paragraphs it is succinctly laid down by the Supreme Court in para 43 of the judgment which reads as under:

'The question is: is this assumption well founded? Assuming that the Presidential Order had suspended the citizens right to move any court for enforcing their fundamental rights under Arts,. 14, 21 and 22 and had made the said Order applicable to persons detained under the preventive Detentions Act of 1950, could that Order have effectively prevented the detenus from contending that their detention was illegal and void? In such a case, if the detenu was detained under challenged the validity of his detention on said act had not been complied with, would his challenge be covered be Article, 359(1) and the Presidential Order issued under it? In other words, can it be said that in making the said challenge he was enforcing the fundamental rights specified in the Presidential Order? If it is held that he was challenging the validity of his detention because the mandatory provisions of the Act had not been complied with his challenge may be outside Article 359(1) and the Presidential Order. If on the other hand, it is held that in substance the challenge is to enforce his makes the challenge by reference to the relevant statutory provisions of the Act themselves, that would have brought his challenge with the prohibition of the Presidential Order. Normally as we have already held a challenge, against the validity of the detention on the ground that the statutory provisions of the act under which the detention is ordered have not been complied with, would fall outside Article 359(1) and the presidential order, but the complication in the hypothetical case under discussion arises because unlike other provisions of the Act, the represent the fundamental rights guaranteed by Article 22 and it is open to argument that the challenge in question substantially seeks to enforce in question substantially seeks to enforce the said fundamental rights. In the context of the alternative argument with which we are dealing at this stage, it is unnecessary for us to decide whether the challenge in question would have attracted the provisions of Article 359(1) and the Order or not. We are referring to this matter only for the purpose of showing that the Parliament may have thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by taking recourse to the Preventive Detention Act of 1950, and that may be the genesis of the impugned, Act. If that be so, it would not be permissible to suggest that in passing the Act, Parliament was acting mala fide.'

Therefore, if a plea raised is outside the scope of Article 359(1) the plea cannot be brought in within the scope of the said be brought in within the scope of the said Article when it is outside Article 359(1) itself.

13. Faced with this difficulty it was contended by Shri Chagla, the learned counsel for the respondents that these observations of the Supreme Court were pericardium and were based on assumptions. According to him, the question as to whether the fundamental rights specified in the presidential issued under Article 359 are even the erotically alive or not during the period specified in the Order was not decided by the Supreme Court. He further contended that in view of the amendment to Article 359 introducing Article 359(1)(A) the assumption on the basis of which the said judgment in Makhan Singh's case proceeded is no longer available. In this context he has drawn our attention to para 10 of the said judgment. He has also made a reference to the observations in para 27 wherein it was observed that the Presidential Order suspends the jurisdiction of the Court pro tanto in that behalf. Shri Chagla has also drawn our attention to Paragraph 33 of that judgment which indicates that a general order could also be issued by the President, but according to him, in that case the Supreme Court was considering a conditional order and the enquiry in the said case was contemplated to find out as to whether to a particular case the Presidential Order applied or not. Shri Chagla wanted us to read the observations of the Supreme Court in paragraphs 35a, 36 and 43 in this context. In our opinion, this will not be the correct approach.

14. It is not open to the High Court to whittle down the import of the Supreme Court decision by drawing fine and subtle distinctions. If in substance the provisions of law considered by the Supreme Court are the same, as the one under consideration of this Court, then the Supreme Court decision must be applied. Even obiter dicta of the Supreme Court are binding upon the subordinate Courts. If the supreme Court had an occasion to consider the true scope of Article 359(1) of the Constitution then the observations on that point would naturally bind the High Court even on the assumption that they were obiter in nature. It will not be open to the High Court to ignore the same by showing that these observations are per incuriam, nor it could be ignored because somebody feels that relevant provisions were not brought to the notice of the Court or the occasion to consider the true scope of Article 359 was the Presidential Order which was a conditional one.

15. In our opinion, such an approach will be contrary to the well established law of precedents as well as judicial discipline. As to when a judgment could be considered per incuriam was also considered by the Supreme Court in Mamleshwar Prasad v. Kanaaiya Lal, : [1975]3SCR834 . Even if the argument of Shri Chagla is tested on the touch-stone laid down in the said decision, in our opinion it cannot be said that the observations made by the Supreme Court, the Supreme Court came to the conclusion that some of the pleas raised were beyond and outside the scope of Article 359(1) itself. It cannot be forgotten that the law laid down by the Supreme Court in Makhan Singh's case was further followed in various other cases, including in Ram Manohar Lohia's case. If a plea raised is outside the purview of Art.359(1) then in our opinion, it is open for the petitioners to approach the Court for a writ of habeas corpus under Article 226 of the Constitution on the basis of such a plea, because such a plea is also beyond the purview of the Presidential Order issued under Article 359(1) of the Constitution. This aspect of the matter can be considered from another point of view also.

16. It is quite clear from the decision of the Supreme Court in Smt. Vidya Verma v. Dr. Shiv Narain (cit supra) that violation of a right to the personal liberty by a private individual is not within the purview of Article 12. Therefore, to such a case the persons of Article 21 will not apply. Will it mean that this Court is not competent to issue a writ of habeas corups in such a case also? If the contention advanced on behalf of the respondents is accepted that repository of a right of personal liberty is only enshrined in Articles 12 and 19 and a persons has no right of liberty de hors these Articles, then while entertaining an application under Article 226 of the Constitution will it be possible for this Court to issue a writ of habeas corpus n such a case? Suppose in a given case a wrong person is detained because of mistaken identity, will it be possible for such a person to enforce his right of liberty by filing a petition for grant of writ of habeas corups under Article 226 of the Constitution? The cases can also be visualised in which a plea could be raised by a detenu that the power exercised by the State Government in detaining him is beyond the scope of the executive power of the State Government either on the ground of territorial jurisdiction or otherwise. If the order of detention is passed by an Officer of the Government who is either not competent to do so, or is passed by a Government which is not the appropriate Government in the given case could it be said that in such a case also a person has no locus standi to approach the Court under Article 226 of the Constitution of India? If the contention raised on behalf of the respondents is accepted that the repository of the rights to personal liberty is only enshrined in Articles 19 and 21 of the Constitution of India and they are wholly suspended because of the Presidential Order issued under Article 359(1), then it will have to be held that even in such a case the detenu will have no locus standi to approach the Court under Article 226 of the Constitution. Is it the scope of Article 359 of the Constitution that by mere issuing an order under Article 359(1) suspending Articles 14, 21, and 22 the president can convert a lawless action in a lawful one? In our opinion, this will be the negation of rule of law itself. However Shri Bobde the learned counsel for the Union of India contended before us that in a case where a person is detained due to mistaken identity or by a private person, he has a right to approach the Court for a writ of habeas corpus. But according to Shri bobde this right flows from the principle that a private individual has no power to detain a person and in another case a person is detained due to mistake. He further contended that it is absence of power and not a right to liberty which confers such a right or cause of action or locus standi in such cases. however, in our opinion, these are noting but inherent limitations flowing from Rule of law.

17. It cannot be forgotten that the laws embody a code of conduct and self discipline which a nation adopts and enforces through the machinery of Courts. Rule of law is not merely a concept. It is neither a doctrine nor an abstract principle. It is a way of life solemnly adopted by a nation. It is not a fiction, but it is a reality of our national life. In substance it embodies a principle of rationality which is intended to strike against arbitrary and discriminatory action taken by the State. It postulates that a person or authority exercising executive or governmental functions or powers must act within the authority of law, and therefore, ultimately must submit to the jurisdiction of the competent law courts both as to the existence and extent of such authority. Nobody can be permitted to use the power in such a way which will run counter to the policy and object of the law. In our opinion, the rule of law will have no meaning if the person aggrieved is not entitled to the protection l from the Court of law on any ground whatsoever. As observed by the Supreme Court in Khudiram Das v. State of West Bengal (cit. supra) 'the Courts have by judicial decisions carved out an area limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial secrutiny'. In that case the Supreme Court in para 11 of the judgment has observed as under:

'This discussion is sufficient to show that there is nothing like unfettered discretion immune from judicial review ability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. 'Law has reached its finest moments' said Justice Douglas, 'when it has freed man, from the unlimited discretion of some ruler, some ......official, some bureaucrat ........ Absolute discretion is a ruthless muster. It is more destructive of freedom than any of man's other inventions' united States v. Wunderlich, (1951) 342 US 98.

And this is much more so in a case where personal liberty is involved. That is why the Courts have devised various method of judicial control so that power in the hands of an individual officer or authority is not misused or abused or exercised arbitrarily or without any justifiable grounds'.

It is no doubt true, as observed by the Supreme Court in Sadhu Ray v. The State of West Bengal, AIR 1975 SC 919, that 'the area and depth of the probe, of course, is conditioned by the particular law, its purpose and language, but our freedoms are not wholly free unless the judiciary have a minimal look at their executive deprivation, even though under exceptional situations'. In our opinion the rule of law is one of the essential features upon which our whole constitutional system is based, and therefore, as a necessary corollary all executive actions which operate to the prejudice of a citizen must have some authority of law or a legal sanction behind it. In this context a reference could be made to the observations of the Supreme Court in State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170 wherein the Supreme Court has held that 'all executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule'. In para 7 of the said judgment the Supreme Court further observed as follows:

'We are, therefore, of the view that the order made by the State in exercise of the authority conferred by Section 3(1) (b) of the Madhya Pradesh Public Security Act. 25 of 1959, was invalid and for the acts done to the prejudice of the respondents after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Article 358 of the Constitution, since the order was not supported by any valid legislation'.

From these observations of the Supreme Court it is quite clear that even during the period of emergency absolute immunity cannot be claimed from the process of Council if the order is not supported by any valid legislation or a legal sanction. The true exposition of rule of law has been laid down by the Supreme Court in S.G.Jaisinghani v. Union of India, : [1967]65ITR34(SC) . In the context in para 14 of the said judgment the Supreme Court has observed as under:

IN the context it is important to emphasize that the absence of the arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law form this point of view means that decisions should be made by the application of known principles and rule and, in general , such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decisions taken in accordance e with the rule of law. 9 See Dicey - 'law of the Constitution' - Tenth Edn., Introduction ex). 'Law has reached its finest moment's stated Douglas, J. in United States v. Wounderlich, (1951) 342 US 98 'when it has freed man from the unlimited discretion of some ruler..........Where discretion is absolute, man has always suffered'. If is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes (1770) 4 Burr 2528 'means sound discretion guided by law. It must be governed by rule, nor by humour: it must not be arbitrary, vague and fanciful'.

The principle of rationality which is intended to strike against arbitrary and discriminatory action taken by the executive is not merely a guarantee of equality under Article 14, but it is also evolved as a rule of administrative law. In this context a reference could usefully be made to the observations of the Supreme Court in Amarjit Singh v. State of Punjab : (1975)ILLJ228SC and particularly to the following observation in para. 9 of the said judgment:

'It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its action to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. vide the judgment of Mr. Justice Frankfurter in Vitaralli v. Section, (1959) 359 US 535 : 3 Law Ed 1912. This view is of course not based on the equality clause of the United States Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action'.

18. In this view of the matter in our opinion, even in spite of the emergency or the Presidential Order as the rule of law is not suspended, all the executive actions depriving a person of his right to liberty must have an authority of law. The rule of law prevails even during the course of emergency, and therefore, every executive action must be supported by legislative authority or a valid legal sanction. In State of Bihar v. Kameshwar prasad Verma : 1965CriLJ494 the Supreme Court made a reference to the following observations of Lord Atkin in Eshugbavi Eleko v. Officer Administering govt. of Nigeria 1931 AC 662 : AIR 1931 PC 248 which the Supreme Court found to be appropriate and applicable in this context:

'In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that High Court can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive'.

The Supreme Court further observed that ' it is the same jurisprudence which has been adopted in this counter on the basis of which the courts of this country exercise jurisdiction'. In our opinion the law laid down by the Supreme Court in makhan Singh's case will have to be understood in this context.

19. However, a contention was raised by Shri Chagla that the law laid down in Makhan Singh's case has been explained by the Supreme Court in its subsequent decision in Ram Manohar Lohia v. State of Bihar (cit. supra). He further contended that the result of the Presidential Order was not considered by the Supreme Court in Makhan Singh's case and in this context he as drawn our attention to the observations made by Hidayatullah, J. (as he then was) in Ram Manohar Lohia's case wherein it was observed that 'in view of this objection it is necessary to state the exact result of the President's Order for this has not been laid down in any earlier decision of this Court'. From this Shri Chagla wants us to draw an inference that in Makhan Singh's case the Supreme Court has not laid down the exact result of the Presidential Order issued under Article 359(1) of the Constitution Shri Chagla has also relied upon the observations of Sarkar, J. in para 4 of the said judgment and has contended that from the said observation it is quite clear that if all the rights conferred upon a person under Article 359(1) of the Constitution. Shri Chagla has also relied upon the observations of Sarkar. J. in para 4 of the said judgment and has contended that from the said observations it is quite clear that if all the rights conferred upon a person under Articles 14,19 ,21, and 22 of the Constitution are taken away or suspended nothing survives. In our opinion , this will not be the correct reading of the said judgment. In paras 24 and 30 of the said judgment a specific reference has been made to Makhan Singh's case, wherein it was found by the Supreme Court that if the mala fides are alleged, the detenue cannot be precluded from substantiating his plea on the ground of bar created by Article 359(1) of the Constitution. This position is further clear from the observations of Hidayatullah, J. (as he then was) in para 27 of the judgment in Ram Manohar Lohia's case that 'the President did not make lawless actions lawful'. Therefore, it is obvious from that judgment also than by mere issuing an order under Article 359(1) of the Constitution, the illegitimate enforcement of law is not condoned. not the lawless actions are made lawful.

20. It cannot be ignored that in Makhan Singh's case the Supreme Court was directly concerned with the construction of Article 359(1) of the Constitution. (See paras 8, 13 and 19 of the judgment) The law laid down in Makhan Singh's case was subsequently affirmed and reiterated in Ram Manohar Lohia's case. As a matter of fact the illustration given in Makhan Singh's case was wholly reproduced in para 32 of the said judgment, wherein the Supreme Court observed as under:

'The cited case can have no relevance here because the statute provided for ouster of Courts' jurisdiction in very different circumstances. Although this Court has already stated that allegations of bad faith can be considered, it may be added that where statutory powers are conferred to take drastic action against the life and liberty of a citizen those who exercise it may not depart from the purpose. Vest powers in the public interest are granted but under colour of exercising the statutory power, acts from some improper or ulterior motive, he acts in bad faith. The action of the authority is capable of being viewed in two ways. Where power is misused but there is good faith the act is only ultra vires but where the misuse of power is in bad faith there is added to the ultra vires character of act, another vitiating circumstances. Courts have always acted to restrain a misuse of statutory power and the more readily when improper motives underlie it. The misuse may arise from a breach of the law conferring the power of from an abuse of the power in bad faith. In either case the Courts can be moved for we do not think that Article 359 or the President's Order were intended to condone an illegitimate enforcement of the Defence of India Act'.

The law laid down in Makhan Singn's case also finds support in Jaichand v. The State of West Bengal and K. Ananda Nambiar v. Chief Secretary to the Govt. of Madras (cit supra). Having made a reference to Makhan Singh's case in para 6 of the judgment as to what was laid down in that case the Supreme Court in K. Ananda Nambiar's case, in para 7 of the Judgment had indicated one more ground on which the order of detention could be challenged. Therefore, in our opinion, it is not correct to say that the law laid down in Makhan Singh's case is no more good law.

21. The observations in Ram manohar Lohia's case therefore cannot be read torn from its context. From the observations on which Shri Changla wanted to rely an inference cannot be drawn that the executive action of the detaining authority cannot be tested at all. It is no doubt true that if the action is purported to be taken under a specific Act, it cannot be tested with reference to other laws or with reference to suspended fundamental rights. In such a case it will have to be tested with reference to law or legal authority under which the action was purported to have been taken. In the present case, the presidential Order being in general terms it will apply to all laws under which action could be taken. In that case the action will have to be tested with reference to enactment under which the action is taken. Executive action not based on any existing law will have to be tested on the basis of executive power of the appropriate authority under the Constitution. In a given case executive action not based on any existing law might stand on a different footing. If it is not in breach of statutory law holding the field and under which the order is purported to be passed. But it is not possible for us to hold that the present Presidential Order though blanket one has granted a blanket power or a free licence to the executive to act without any authority of law or legal sanction and therefore, if the executive acts in such a way then that action of the executive is not immune from judicial scrutiny. In our opinion the entire fabric of the Indian Constitution being based on the Rule of Law and distribution of power amongst the agencies created by the Constitution, unless power to pass an order is demonstrated or shown to have been passed under some legal authority, the Constitutional and the legal effect thereof would be normally open to challenge. It is not the intention of the Presidential Order issued under Article 359(1) to suspend all laws or judicial scrutiny, or all challenges even during emergency . In this context a reference could be made to the warning given by the Supreme Court in G.Sadanandan v. State of Kerala : 1966CriLJ1533 , which reads as under:

'In conclusion we wish to add that when we come across orders of this kind by which citizens are deprived of their fundamental right of liberty without a trial on the ground that the emergency proclaimed by the President in 1962 still continues and the powers conferred on the appropriate authorities by the Defence of India Rules justify the deprivation of such liberty, we feel readily disturbed by the though that continuous exercise of the very wide powers conferred by the Rules on the several authorities is likely to make the conscience of the said authorities insensitive if not blunt to the paramount requirement of the Constitution that even during emergency, the freedom of Indian citizens cannot be taken away without the existence of the justifying necessity specified by the Rules themselves. The tendency to treat these matters in a somewhat casual and cavalier manner which may conceivably result from the continuous use of such unfettered powers, may ultimately post a serious threat to the basic values on which the democratic way of life in this country is founded. It is true that cases of this kind are rare, but even the presence of such rare cases constitutes a warning to which we think it is our duty to invite the attention of the appropriate authorities'.

22. It was also contended by Shri Bobde, the learned counsel for the respondents that in view of the amendment to Article 359 of the Constitution of India introducing Article 359 of the Constitution of India, introducing Article 359(1)(a) and the amendment to the Ninth Schedule whereby the present Act is included in the said Schedule, read with Article 31-B of the Constitution, the law laid down in Makhan Singh's case is no more a good law.

23. In our opinion there is no substance in this contention also. Article 31-B of the Constitution validates certain Acts and Regulations and declares that the law which is included in the Ninth Schedule shall not be deemed to be void or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provisions of Part III of the Constitution. We are not concerned in this case with this aspect of the matter at all, because before us the Act or its provisions are not challenged on that ground. Article 359(1)(a) will not come into operation and affect the right of a person to approach the Court, if the plea raised in his petition is outside the purview of Article 359(1). Article 359(1)(A) permits the State to make law or to take any executive action which the State would, but for the provisions contained in Part III of the Constitution be competent o make or to take. practically the said Article is akin to Article 358 of the Constitution.

24. In the District Collector of Hyderabad v. M/s. Ibrahim and Co. : [1970]3SCR498 the Supreme Court has considered the true scope and effect of Article 358 of the Constitution of India. In this context a reference could usefully be made to the decisions of the Supreme Court in Bennett Coleman and Co. Ltd. v. Union of India : [1973]2SCR757 and in Shree Meenakshi Mills Ltd. v. Union of India : [1974]2SCR398 . It seems to us that 38th amendment to the Constitution has been made by the Parliament by adding Article 359(1)(A) so as to overcome the difficulty pointed out by the Supreme Court in makhan Singh's case, wherein it was observed that 'unless the Parliament makes a law granting immunity, the immunity will not flow from the provisions of Article 359(1) itself as is the case with Article 358'. Therefore, to grant such an immunity Article 359 was amended. The effect of 38th amendment inserting Article 359(1)(a) to the Constitution will be that in addition to the right under Article 19 already provided by Article 358, the other right also referred to in Part III of the Constitution, during the subsistence of Emergency cannot invalidate the legislative or executive action. But still it cannot make a lawless action lawful if a plea on which the said action is challenged is outside the purview of Article 359(1) of the Constitution. Such a view seems to have been also taken by Delhi High Court in Mrs. Bharati Nayar v. Union of India (Criminal Writ No. 121 of 1975, decided on 15-9-1975). In this context it was also contended by Shri Manohar that MISA, namely Act No. 26 of 1971 is a pre-emergency legislation, and therefore, executive action taken under the said Act is not wholly immune from challenge. In support of this contention Shri manohar has relied upon the following observations of the Supreme Court in State of Madhya pradesh v. Thakur Bharat Singh AIR 1967 SC 1170:

'Counsel for the State urged that in any event so long as the State of emergency declared on October 20, 1962 by the President under Article 352 was not withdrawn or revoked the respondent could not move the High Court by a petition under Article 226 of the Constitution on the plea that by the impugned order his fundamental right guaranteed under Article 226 of the Constitution on l the plea that by the impugned order his fundamental right guaranteed under Article 19(1)(d) of the Constitution was infringed. But the Act was brought into force before the declaration of the emergency by the President. If the power conferred by Section 3 (1) (b) authorised the imposition of unreasonable restrictions, the clause must be deemed to be void, for Article 13(2) of the Constitution prohibits the State from making any law which takes away or abridges the rights conferred by Part III, and laws made in contravention of Article 13(2) are to the extent of the contravention void. Section 3(1) (b) was, therefore, void when enacted and was not revived when the proclamation of emergency was made by the President . Article 358 which suspends the provisions of Art. 19 during an emergency declared by the President under Art. 352 is in terms prospective. after the proclamation of emergency nothing in Article 19 restricts the power of the State to make laws or to take any executive action which the State but for the provisions contained in Part II was competent to make or take. Article 358 however, does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency. Counsel for the State while conceding that if Section 3(1) (b) was, because it infringed the fundamental freedom of citizens void before the proclamation of emergency and that it was not revived by the proclamation submitted that Art. 358 protects action both legislative and executive taken after proclamation of emergency and, therefore, any executive action taken by an officer of the State or by the State will not be liable to be challenged on the ground that it infringes the fundamental freedoms under Art. 19. In our judgment, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it and the terms of Article 358 do not detract from that rule. Article 358 expressly authorities the State to take legislative or executive action provided such action was competent for the state to make or take, but for the provisions contained in part III of the Constitution Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others; it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority, which if the provisions of Art. 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles; 91) the sovereignty of the people with limited authority , i.e., the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of by the people; (2) There is distribution of powers between the three organs of the State legislative, executive and judicial each organ having some check direct or indirect on the other, and 93) the rule of law which includes judicial review of arbitrary executive action. As pointed out by Dicey in his 'Introduction to the Study of the Law of the Constitution'. 10th Edn. at p. 202 the expression 'rule of law' has three meanings or may be regarded from three different points of view.

'It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government'.

'In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment or explosion from its territory, and the like, tan is either legally claimed or in fact exerted by the Government in England; and a study of European polities now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects'. We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person be supported by some legislative authority'.

On the other hand it is contended on be half of the respondents that subsequent Amendment Ordinance and the Act No. 39 of 1975 being post-emergency legislation these observations of the Supreme Court are no of any assistance and cannot be relied upon. However, in the view which we have taken it is not necessary to probe into this question in detail.

25. It was also contended by Shri Manohar that even after the proclamation of present emergency and the Presidential Order the Supreme Court has entertained a petition for habeas corpus in Krishna Murari v. Union of India 1975 SCC (Cri ) 547. According to him, if such a petition was not maintainable in view of the present Presidential Order or amendments to the Constitution the Supreme Court would not have entertained the petition and directed the release of detenu on July 15, 1975. He further contended that this aspect is relevant to decide the question involved in these petitions. In this context he has drawn out attention to wares the following observations of the Supreme Court in para 4 of Ram Manohar Lohia's case:

'This Court in fact heard applications under Article 32 challenging detentions under that Act: See Rameshwar Shaw v. District Magistrate of Burdwan : 1964CriLJ257 '.

On the other and it is contended on behalf of the respondents that the detention in that case was pre-Presidential Order dated 27-6-1975 and these various aspects were not argued in that case.

26. However, in the view which we have taken, it is not necessary to deal with these contentions in detail. Therefore, taking an over all view of the whole matter, in our opinion, the preliminary objection taken by the respondents that the detention orders cannot be challenged on any grounds whatsoever cannot be sustained. In the view which we have taken, it is not necessary for us to deal with the other decisions cited by not the parties in detail.

27. it is not doubt true that while deciding a question, as to whether the petitioners are entitled to challenge their detention on a particular ground or not, it will have to be decided having regard to the ground raised as well as the facts and circumstances of each case. No general rule can be laid down in this behalf, nor it is advisable to lay down any general rule. It cannot also be forgotten that it is not the mere form, but the substance of the matter which will have to be looked k into while deciding such a question. In deciding such a question, the substance of the matter will have to be taken into account and no undue or exaggerated importance could be attached to the form of the challenge. Therefore, in our opinion, it is nt possible for us to hold without going into the merits of the matter that the petitions filed are liable to be dismissed in limn as contended by the learned counsel for the respondents. The preliminary objection raised in this behalf is, therefore, overruled.

Special Civil Application No. 903 of 1975 and Spl. Civil Application No. 995 of 1975

28. Though in these and other connected petitions initially the Ordinance issued by the President on 30th June, 1975 and 15th July 1975 as well as the emergency declared by the President on 25th/26th June, 1975 was challenged on various grounds the said challenge was given up by all the petitioners by filing necessary purses and making a statement at the Bar. The only contentions which are argued before us so far as the merits of the cases are concerned were based on 3 grounds, namely there was no requisite satisfaction of the detaining authority which is a condition precedent for passing an order of detention under S. 3 of the MISA. In support of this ground it was contended by the counsel for the petitioner that there was no application of mind at all by the concerned authorities. On the contrary, from the record it appears that the detaining authority had acted on the dictation of someone else. As a limb of same contention it was also argued by the learned counsel for the petitioners that the satisfaction of the detaining authority was not based on any material. Even If it is assumed that there was some material before the detaining authority the said material has no rational probative value or nexus with the object of the detention and on the basis of the said material no reasonable man could have come to this conclusion that it was necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the security of India, or security of the State or maintenance of public order. It was further contended that the satisfaction was either based on a misconstruction of the provisions of the Statute or reliance was placed on irrelevant grounds. A further contention was also raised that the power was exercised by the competent authority mala fide, and therefore, the said order is vitiated and is bad in law. As a necessary corollary of this contention it was also argued that when the order of detention itself was vitiated the declaration issued by the competent authority under Section 16-A of the Act is also bad in law, because the said declaration is also based on the same material or no material as the case may be.

29. A contention was also raised by Shri Manohar, the learned counsel for the petitioners, that the petitioners have made out a prima facie case for challenging the subjective satisfaction of the detaining authority and on being satisfied that a prima facie case is made out this Court had issued a rule nisi. If this is no, then the burden shifts upon the detaining authority to support its own detention order by placing before this Court the relevant material, either in an affidavit or by producing the necessary documents. According to the learned counsel, mere assertions of the detaining authority that he had material in his possession on the basis of which he was satisfied that it was necessary to detain the detenue is no enough. The onus being on the detaining authority, the detaining authority must discharge the said onus by filing a proper affidavit and by producing the material before the Court. According to the learned counsel, the detaining authority has failed to carryout his obligation in these cases, and therefore, even before this Court there is no material on record from which a legitimate inference can be drawn that there was some material before the detaining authority from which a reasonable satisfaction could be arrived at that if was necessary to detain the detenus for preventing them from acting in a manner prejudicial to the security of the State or maintenance of public order or the security of India itself.

30. Shri Udhoji, the learned counsel appearing for some of the petitioners, contended that the orders of detention have been passed by the detaining authority mechanically and in a casual manner without any application of mind. According to him, the detaining authority had reproduced the section of the MISA in the detention order mechanically without applying his mind to the facts and circumstances of each case. Therefore according to the learned counsel on this count also the orders passed by the detaining authority are illegal. Shri Udhoji has further contended that the various detenus before this Court in these petitions were either ordinary members of Bhartiya Jan Sangh which is recognised a political Jan Sangh which is recognised a political party and is not banned by the Government or the detenus were either the office-bears , ordinary members or sympathisers of the R. S. S. which is a cultural organisation and has nothing not do with politics as such. According to the learned counsel, mere membership of the R. S. S. or the Bhartiya Jan Sangh is not enough from which a reasonable inference could be drawn that the activities of a particular person are prejudicial to the security of India, or the security of State or the maintenance of public order. He further contended that the various detenus were arrested immediately after the proclamation of emergency on the 27th June, 1975 and even before the order banning the R. S. S. was issued by the Government According to the learned counsel, mere affiliation, sympathy or membership of a banned organisation or a political organisation is not enough unless a further material is placed before the Court to indicate that a particular person or a detenue was acting in such a manner which was prejudicial to the security of India, the security of the State or maintenance of public order. According to Shri Manohar and Shri Udhoji, the learned counsel for the petitioners, there was no material before the detaining authority from which a reasonable inference in this behalf could be drawn.

31. Therefore, in substance the orders of detention are challenged before us by the petitioners on the ground that there is no compliance with the mandatory provisions of S. 3 of the MISA and that the orders have ben passed in mala fide exercise of the power So far as the question of mala fides is concurred, the learned counsel for the petitions have restricted their argument to the mala fides in law, namely, malice in law. According to the learned counsel for the petitioners, as the party in power did not like the activities of another political party, namely, Bhartiya Jan Sangh, these orders have been passed by the detaining authority at the instance of the party in power without application of his independent mind to the facts and circumstances of each case.

32. For properly appreciating the contentions raised on behalf of the petitioners in these various petitions it will be necessary to refer to the relevant provisions of the MISA. The power to make an order of detention is conferred upon the detaining authority by Section 3 of the MISA which reads as under:

'3. Power to make Order detaining certain persons:-

(1) The Central Government or the State Government may:-

(a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him formation in any manner prejudicial to -

(i) the defence of India, the relations of India with foreign powers, or the security of India, or

(ii) the security of the State or the maintenance of public order, or

(iii) the maintenance of supplies and services essential to the community or

(b) if satisfied with respect to any foreigner that with a view to regulating his continued prescience in India or with a view to making arrangements for his expulsion from India;

it is necessary so to do, make an order directing that such person be detained.

(2) Any of the following officers namely -

(a) District Magistrate,

(b) Additional District magistrate specially empowered in this behalf by the State Government.

(c) Commissioners of Police, wherever they have been appointed. (may, if satisfied as provided in sub-section (1) exercise the power conferred by said subclause).

(3) When any order is made under this section by an Officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government:

Provided that where under Section 8, the grounds of detention are communicated by the authority making the order after five days but not later than fifteen days from the date of detention this subsection shall apply subject to the modification shall apply subject to the modification that for the words 'twelve days', the words 'twenty-two days' shall be substituted.

(4) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order'.

Thereafter by a subsequent amendment, Section 16-A was inserted in the MISA. Section 16-A reads as under:

'16-A (1) Notwithstanding anything contained in this Act or any rules of natural justice, the provisions of this section shall have effect during the period of operation of the proclamation of Emergency issued under clause (1) of Article 352 of the Constitution in the 3rd day of December, 1971 or the proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of twelve months from the 25th day of June. 1975, whichever period is the shortest.

(2) The case of every person (including a foreigner) against whom an order of detention was made under this Act on or after the 25th day of June 1975, but before the commencement of this section, shall unless such person is sooner released from detention be reviewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act, is necessary for dealing effectively with the Emergency in respect of the which the proclamations referred to in sub-section (1) have been issued (hereafter in this section referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with l the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned.

(3) When making an order of detention under this Act against any person (including a foreigner) after the commencement of this section,. the Central Government or the State Government or as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if on such consideration the Central Government or the State Government or the officer as the case may be, is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned:

Provided that where such declaration is made by an officer, it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declaration shall cases to have effect unless it is confirmed by the State Government after such review, within the said period of fifteen days. (4) The question whether the detention of any person in respect of whom a declaration has been made under sub-section (2) or sub-section (3) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months, and if, on such reconsideration, it appears to the appropriate Government that the detention of the person is no longer necessary for effectively dealing with the emergency that Government may revoke the declaration.

(5) In making any review, consideration or reconsideration under sub-section (2), (3) or (4), the appropriate Government of officer may, if such Government or officer considers it to be against public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned.

(6) In the case of every person detained under a detention order to which the provisions of the sub-section (2) apply, being a person the review of whose case is pending under that sub-section (2) apply, being a person the review of whose case is pending under that sub-section or in respect of whom a declaration has been made under that sub-section

(i) sections 8 to 12 shall not apply; and

(ii) Section 13 shall apply subject to the modification that the words and figures 'which has been confirmed under Section 12' shall be omitted.

(7) In the case of every person detained under a detention order to which the provisions of sub-section (3) apply, being a person in respect of whom a declaration has been made under that subsection .-

(i) Section 3 shall apply subject to the modification that for sub-section (3) and (4) thereof, the following sub-section shall be substituted, namely:-

'(3) When any order of detention is made by a State Government or by an officer subordinate to it the State Government shall within twenty days, forward to the Central Government a report in respect of the order'. (ii) Sections 8 to 12 shall not apply: and

(iii) Section 13 shall apply subject to the modification that the words and figures 'which has been confirmed under Section 12' shall be omitted'.

Apart from Sections 16-A a new section, namely, Section 18, was also added by an amendment which excludes the rights conferred by natural law or common law, if any.

33. Therefore, from the bare reading in these various provisions it is quite clear that the Act under which the present detonation orders are passed contemplates an order to the passed by the detaining authority under Section 3 of the Act. if he is satisfied with respect to the detenue that with a view to preventing him from acting in any manner prejudicial to the security of India or the security of the State or maintenance of public order it is necessary to detain him. Such an order could be passed by the district magistrate of a district or Commissioner of Police Under sub-section (3) of Section 3 of the Act when an order is made under this section either by the District magistrate or the Commissioner of Police Under sub-section (3) of Section 3 of the Act when an order is made under this section either by the District Magistrate or the Commissioner of Police he has to report the fact to the State Government forthwith together with the grounds on which the order has been made and such other particulars as in his opinion have bearing on the matter. Newly added Section 16-A contemplates that in a given case under sub-section (2) of Section 16-A a declaration could be issued by the competent authority that the detention of such a person is necessary for dealing effectively with the emergency if he is so satisfied. If such a declaration is made by an officer and not by the State Government itself, it is to be reviewed by the State Government to which such officer is subordinate within fifteen days from making the declaration. Such a declaration loses its efficacy if it is not conlaration loses its efficacy if it is not conlaration loses its efficacy if it is not confirmed by the State Government within 15 days. By sub-section (4) of Section 16-A a subsequent reconsideration of the detention is contemplated. If a declaration is issued by the detaining authority or the State Government then sub-section (7) of Section 16-A applies to such a detention. By sub-section (7) of Section 16-A the provisions of Section 3 of the MISA are modified. By virtue of the provisions of sub-section (7) (ii) of Section 16-A the provisions of Sections 8 to 12 do not apply to such a detention order. Therefore, from the bare reading of these provisions it is obvious that apart from the detention order issued by the detaining authority, a declaration is contemplated by the detaining authority itself or by the State Government to the effect that it is necessary for dealing effectively with the emergency that the detention of such a person is necessary. if the detention order is passed by the officers who are subordinate to the State Government , then they are obliged to send the necessary papers to the State Government and if the declaration is issued by the State Government itself then the State Government is obliged to send its own report to the Central Government in this behalf. Therefore, the consideration of the material as well formation of opinion and satisfaction is contemplated of opinion and satisfaction is contemplated at two different stage. First when the initial order of detention is issued by the detaining authority under Section 3 of the Act. Then Section 16-A provides that while making an order of detention under the said section it is open for the detaining authority to issue a declaration that the detention of such a person under the Act is necessary for dealing effectively with the emergency. If such a declarations issued by the officer concerned, it is required to be reviewed by the State Government to which such an office is subordinate within 15 days from the date of making the declaration and such a declaration cases to have any effect unless it is confirmed by the State Government after a review within a period of 15 days. Therefore, a review by the State Government is also contemplated if the order of detention is pass by an officer subordinate to it . Sub-section (2) of Section 16-A governs certain detention orders passed on or after 25th June, 1975 but before the commencement of the section, namely Section 16-A The provisions of Section 16-A are to apply notwithstanding anything contained in the Act or any rules of natural justice. Therefore, by adding this non obstacle clause to Section 16-A an overriding effect is given to Section 16-A. Once such a declaration is made under Section 16-A it is pertinent to note that the application of Section 3 to 12 is done away. Therefore in a cawed of detention which is covered by the declaration under Section 16-A it is no more necessary of the detaining authority to follow the procedure presumes to be the scheme of the present legislation. added to this there is a declaration of emergency and the Presidential order issued under Article 359(1) of the Constitution. The proclamation of emergency was issued by the President of India in a following terms:

'In exercise of the powers conferred by clause (1) of Article 352 of the Constitution, I. Fakhruddin Ali Ahmed, President of India by this proclamation declare that a grave emergency exists whereby the security of India is the retained by internal disturbance'.

Therefore the presidential Order which is worded in general terms referred to here in before was issued by the President. As already observed, the result of this Presidential Order was to suspend the enforcement of the fundamental rights guaranteed under Articles 14, 21 and 22. Article 19 of the Constitution already stood suspended by virtue of the provisions of Article 358 and the proclamation of emergency. It is pertinent to note that the declaration of emergency was thought expedient because according to the President of India, a grave emergency existed in the country whereby the security of India was threatened by internal disturbance. As already observe, before us neither the proclamation of emergency nor the presidential Order issued under Article 359(1) or the various amendments made to the MISA have been challenged. The whole argument of the petitioner is, therefore, restricted to the general submissions already referred to herein before.

34. The petitioner is Special Civil Application No. 903 of 1975 has approached this Court under Article 226 of the Constitution of India praying for a release of dtente Shri Madharao Narayanrao Chatate of Nagpur. In para 3 of the petition it is contended that the detenus is the resident of Nagpur and is a law abiding citizen. It was also contended that he believes in democracy and democratic from of Government as envisaged in the Constitution of India. The detenue, according to the petitioner has never advocated in and has always condemned acts of violence and there is o iota of evidence, much less could there be with the detaining authority to come to the satisfaction that the activities of the detain were likely to be prejudicial to security of India. In the petition itself it is stated that the detenu is the Sangharsha of Nagpur Branch of the R. S. S. According to the petitioner, this organisation is nt a political organisation, but is a cultural one dedicated to the service of the, country through character building of the people. It is also contended that the R. S. S. rejects the doctrine of violence and there is no evidence with the respondent that this organisation indulged or indulges in any act of violence. In para 7 of the petition, it is stated that on the 4th July, 1975, at about 3.00 p. m. the Union of India banned the R.S. S. along with some 25 organisations under the Defence of India Rules and immediately thereafter within few hours the detenu was detained under the MISA. According to the petitioner, the said detention is illegal because it is based on non-existing grounds. According to the petitioner, the second respondent, that is, the Commissioner of Police, could have no material before him to be satisfied that the dtente was acting in a manner prejudicial to the security of India. In the petition a long history commencing from the Utter Pradesh Assembly elections has been stated. A reference is also made to the elections in Gujarat and a decision of Allahabad High Court in an election petition of Smt. India Gandhi. According to the petitioner, five political parties formed National Sangharsha Samiti to educate the public opinion to question the property of the continuance of the Prima Minister in the Office. A reference is also made to the detention of several members of various parties. In para 10(n) of the petition was contend by the petitioner that on 30th June, 1975 Shri Balasaheb Deoras reached Nagpur after his tour, bur he was arrested the Nagpur railway station under the MISA. It was admitted before us that Shri Balasaheb Deoras is the Sar Sangh Chalak of Rashtriya Swayam Sewak Sangh. Then on 4th July, 1975 the respondent No. 1, Union of India, banned the R. S. S. along with 25 other organisations. According to the petitioner, this was a gross abuse of power under the Defence of India Rules inasmuch as R. S. S. has never engaged in any militant agitation or tried to subvert the Government much less systematically as alleged by the Home Minister Shri Brahmanada Reddy, and thereafter in the petition the detention was challenged on various grounds, some of which are given up.

35. The allegations made in the petition are denied by the respondents. The respondents have denied the fact that the R. S. S. was merely a cultural organisation and had never engaged itself in any militant agitation or has not tired to subvert the Government systematically. It was admitted by the respondents No.1 the Union of India, and the detenu was ordered for effectively dealing with the emergency as well as the detaining authority was satisfied that the preventing the detenu from acting in any manner prejudicial to the security of India, it was necessary to detain him. The detaining authority denied that there was no evidence to justify the conclusion that the activities of the detenu or his party were prejudicial to the internal security of India. On the contrary according to the respondent No.2, the detaining authority, after examining and considering the activities of the detenu which related to the period prior to the proclamation of emergency he has ordered the detention of the detenu as he was satisfied that it was necessary to detain the detenu under the MISA.

It was denied by the detaining authority that the R.S.S. was a cultural organisation dedicated to the services of the country through the character building of the people or that it rejects the doctrine of violence. He denied the allegations that there was no evidence with the respondents that the organisation of R.S.S. indulged or indulges in acts of violence. According to the respondent No.2 the detaining authority, after considering all the material before him, has taken an independent decision based on his own satisfaction. The respondents admitted that the organisation known as the R.S.S. was banned by the Government. The allegations regarding mala fide exercise of power or the non-existence of the material were also denied by the detaining authority. He also denied by the detaining authority. He also denied the allegation that the order was passed on the direction of somebody else. In an additional affidavit filed on 29th September, 1975 the detaining authority denied that the detention order was passed by him in mala fide or colourable exercise of power. According to him, the activities of the detenu were examined and considered by him and he was satisfied from the information gathered that the activities of the detenu were such that if permitted to be carried on the same would be prejudicial to the security of India. He further stated that he was satisfied that it was necessary to detain the detenu with a view to prevent him from continuing any such activities and acting in a manner prejudicial to the security of India. According to the detaining authority, had he not passed the impugned order the detenu would have impugned order the detenu would have continued to carry on the said activities. The detaining authority has also claimed privilege from producing the relevant material which was in his possession before this Court and has failed an affidavit in that behalf.

36. As already observed, apart from the contentions, referred to hereinbefore, it was contended by Shri Manohar, the learned counsel appearing for the petitioners in these cases, that as the petitioners have made out a prima facie case that their detentions are illegal, now the burdens is upon the detaining authority to justify the said detaining by producing the relevant material before this Court. He further contended that the returns filed in these cases cannot be termed to be good returns. In support of this proposition Shri Manohar has relied upon several decisions of the Supreme Court including the decisions in Bhut : 1974CriLJ690 . Niranjan Singh v. State of Madhya Pradesh : [1973]1SCR691 , Sk, Serajul v. State of West Bengal : AIR1975SC1517 , Khudiram Das v. The State of West Bengal : [1975]2SCR832 and Sadhu Roy v. The State of West Bengal AIR 1975 SC 919 and has further contended that the counter-affidavits filed by the detaining authority as well as the respondents in these cases, if tested on the basis of the guidelines and standards laid down in these decisions of the Supreme Court, then it cannot stand the scrutiny and therefore, are liable to be wholly the detaining authority has not produced before the detention order, the detenues in the present cases are entitled to be released. He further contended that only because the organisation known as the R.S.S. has been band by the respondent No.1 Union of India, and the detenu in Special Civil Application No.903 of 1975 is the Sangha Chalak of Nagpur be drawn that his activities were such which were prejudicial to the security of India.

37. However, according to the learned counsel for the respondents, after the amendments to the MISA and particularly in view of the provisions of Section 16-A and Section 18 of the Act and in view of the suspension of the fundamental rights guaranteed under Articles 14, 19, 21 and 22, the law laid down in these cases of the Supreme Court is now not applicable to the facts and circumstances of these cases. It is further contended by the learned counsel for the respondents that in view of the declaration issued under Section 16-A and non-application of the provisions of Sections 8 to 12 it is not now obligatory on the part of the detaining authority to record any detenu. A contention was also raised `by Shri Bobbed the learned counsel for Union of India, that as the provisions of Section 8 to 12 of MISA are not applicable to the present case and as the fundamental rights under Articles 14, 19, 21 and 22 of the Constitution are suspended the question of lack of bona fide will not arise. As already observed, in support of this proposition he has relied upon two decisions of the Supreme Court namely. The District Collector of Hyderabad v. M/s. Ibrahim and Co. and Mohd. Yaqub v. State of Jammu and Kashmir (cit. supra). The counsel for the respondents further contended that if this is so , then by mere filing a petition before this Court under Article 226 of the Constitution, the petitioner cannot get the same material which he is not entitled to get under law. By mere filing a petition under Article 226 of the Constitution, the mandatory provisions of law cannot be circumvented. On the contrary, according to the learned counsel for the respondents there is an injunction or a prohibition so far as the detaining authority is concerned and he cannot be forced or directed to produce the material before this Court which he is prohibited from communicating not the detenu, More so in view of the provisions of sub-section (7) of Section 16-A of the MISA. It is further contended by the learned counsel for the respondents that it cannot be forgotten that the emergency in India was declared by the President because in his opinion there was a grave threat to the security of India due to internal disturbance. In the background of this declaration the provisions of the MISA were amended and the order under Article 359(1) of the Constitution was issued. It was further contended by the learned counsel for the respondents that in this case the petitioners has not made out a prima facie case, and therefore, question of filing a return does not arise. According to the learned counsel, on the basis of the very allegations made in the petition and admitted position, the petition is liable to be dismissed. It is contended by the learned counsel for the respondents that it is an admitted position that the detenu in Special Civil Application No.903 of 1975 was a responsible officer-bearer, namely, the Sanghchalak of Nagpur Branch of the R.S.S. which is a banned organisation. Soon after the proclamation of emergency and banning of the organisation. Soon after the proclamation of emergency and banning of the organisation he was detained. The various allegations made in the petition clearly indicate the activities of the detenu and his interest in the political life. Though the challenge based on the various grounds has been given up, the allegations in the petition further indicate that some political parties had framed a systematic programmer of agitation. Therefore, according to the learned counsel for the detaining authority, this admission itself clearly indicts that there was material before the detaining authority on the basis of which a satisfaction could be reached. It is well settled that so far as the sufficiency of the material is concerned it is not open for this Court to scrutinise the detaining authority from which he could reach a satisfaction, then the said satisfaction being subjective in nature, cannot be tested objectively and therefore, the scrutiny in that behalf is wholly barred.

38. For properly appreciating these contentions it will be useful to make a reference to the notification issued by the Government banning the R.S.S. It is clear that the said notification was issued by the Ministry of Home Affairs on the 3rd July 1975, though in the petition it is stated that it is issued on the 4th of July, 1975. The said notification reads as under:

'MINISTRY OF HOME AFFAIRS'

Orders

New Delhi, the 3rd July, 1975.

S.O. 306 (E) - Whereas the Central Government is satisfied with respect to the organisation known as Rashtriya Swayam Sevak Sangh that it is an organisation which is, and whose members and the persons in control whereof are, indulging in activities prejudicial to the internal security, the public safety and the maintenance of public order:

Now, therefore, in exercise of the powers conferred by sub-rule (1) of R.33 of the Defence and Internal Security of India Rules, 1971, the Central Government hereby directs that the said rule shall apply to the Rashtriya Swayam Sevak Sangh aforesaid.'

The notification is also not challenged before us. Therefore, the question which arises in this cases for consideration is to find out as to whether in this background it could be said that there was no material before the detaining authority to record a satisfied that, with a view that he was satisfied that, with a view to prevent the detenu from acting in any manner prejudicial to the security of India, it was necessary to detain him.

39. The Act with which we are concerned only enjoins a duty upon a detaining authority to record his satisfaction. This satisfaction is wholly subjective. Therefore the burden at least to indicate prima facie that there was no material before the detaining authority or he has acted mala fide is upon the petitioner. In view of the various provisions of the Act such a burden is heavier because apart from the satisfaction to be recorded apart from the satisfaction to be recorded under Section 3 of the Act, in the present case while making an order of detention the detaining authority after considering the question as to whether a detention of such a person is necessary for dealing effectively with the emergency. The declaration issued by the detaining authority was also confirmed by the State Government on 16th July, 1975. As already indicated when the order is made by an officer mentioned in sub-section (2) of Section 3, namely, the Commissioner of Police or the District Magistrate, he has to report the fact to the State Government together with the around on which the order has been made and such other particulars as in his opinion have bearing on the matter. This was also done by the Commissioner of Police in the present case. Therefore, in the case before us, apart from the initial order of detention passed by the Commissioner of Police there is a declaration under section 16-A coupled with an approval of the detention by the State Government under sub-section (3) of Sec.3 of the Act and the confirmation of the declaration under the proviso to sub-section (3) of the 16-A of the MISA. Moreover in the present case an affidavit is filed before us on behalf of the State Government that the detaining authority had placed entire material before it and on examination of the said material the State Government was pleased to approve the detention and confirm the declaration issued under Section 16-A of the MISA. In our opinion, if all these provisions of the Act are read together coupled with the fact that the provisions of section 8 to 12 are no more available to the detenu in view of the declaration issued under Sections 16-A, the question of making our a prima facie case will have to be considered in altogether different context. In this behalf a reference could usefully be made to the observations of the Supreme Court in Abdul Gani v. The State of Jammu and Kashmir : [1971]3SCR275 . In that case the Supreme Court was concerned with an order of detention passed under Jammu and Kashmir Preventive Detention Act. In that case also no grounds of detention were served on the detenu and, therefore, there was no question of the detenu knowing the grounds in detail in order to make a representation against him. In this context in para 6 of the judgment the Supreme Court observed as under:

'The fourth point urged was that the District Magistrate, when making the order for detention, did not apply his mind, because his order does not mention the existence of any materials which would have impelled him to make the order of detention of the petitioner. In the order made under Section 3 of the Act, the existence of material does not require to be mentioned. The order recites that the District Magistrate is satisfied that it is necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the security of the State. That this satisfaction was based on materials is further clarified by the order of the Government confirming the detention which mentions that the District Magistrate, had with his report, sent to the Government the grounds on which the order had been made as well as other particulars having bearing on the matter. It is, therefore, not a case where the District Magistrate can be held to have passed an order without any material at all.'

40. As already stated, the challenge based on various varmints in the petition was given up and practically in all these cases the order of detention is challenged on the ground of non-compliance of Section 3 of the MISA or that it is vitiated because of malice in law. Though the challenges based on various avarmints and allegations made in the petitioners are given up, in our opinion the same are indicative of the attitude and inclination of the detenu toward the political life and various happenings. It also indicates the nature and sphere of association and affiliation with the political parties and banned organiations. From the various decisions of the Supreme Court it is quite clear that the area and depth of the probe is now further conditioned by the particular law, its purpose and language and now the judiciary can have a minimal look under exceptional situation in the case of preventive detention. In the cases of preventive detention investigation as to the truthfulness of the fact forming the basis of ground of detention cannot be embarked upon. In such cases the Court exercised peripheral jurisdiction and as observed by the Supreme Court in Khudiram Das v. State of W.B. : [1975]2SCR832 the power of preventive detention being clearly of a preventive nature and the measures contemplated is being taken by way for precaution to prevent mischief to the community and to some extent, therefore, based on suspicion or anticipation as distinct from proof is not open to objective determination and if the subjective opinion is formed by the detaining authority as regards the necessity of detention for specified purpose, then the condition of exercising power of detention would be fulfilled. The matters which are taken into consideration are not susceptible to objective determination and they could not be intended to be judged by objective standards. In this context the Supreme Court in para 8 of the judgment in Khudiram Das v. State of West Bengal (cit supra) has observed as under:

'Now it is clear on a plain reading of the language of sub-sections (1) and (2) the language of sub-sections (1) and (2) of Section 3 that the exercise of the power of detention is made dependent non the subjective satisfaction of the detaining authority that with a view to preventing a person from acting in a prejudicial and (iii) of clause (a) of sub-section (1). It is necessary to detain such person. The words used in sub-sections (1) and (2) of Sections 3 are 'if satisfied' and they clearly import subjective satisfaction on the part of the detaining authority before an order of detention can be made. And it is so provided for a valid reason which nature of the power of detention and the conditions on which it can be exercised. The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, it left free and unfettered,. it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent on suspicion or anticipation as distinct from proof. Patanjali Sastri, C.J. pointed out in State of Madras v. V.G. Row,. : 1952CriLJ966 that preventive detention is 'largely precautionary and based in suspicion' and to these observations may be added the following words uttered by the learned Chief Justice in that case with reference to the observations of Lord Finally in Rex v. Halliday, 1917 AC 260 namely that the Court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based.'

This being the nature of the proceeding, it is impossible to conceive how it can possible be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of clause (1) of sub-section (1) of Section 3 and if so whether it is necessary to detain him with a view to preventing him from so acting. These are not matters, susceptible of objective determination and they could not be intend to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action. Their determination, is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would be best fitted to decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as regards these matters constitutes the foundation for the exercise of the power of detention and the property or sufficiency of the grounds on which the satisfaction of the detaining authority is based. The Court cannot, on a review of the grounds substitute its own opinion for that of the authority for what is made a condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose, the condition of exercise of the power of detention, would the power of detention is not a quasi-judicial power. It was, however, sought to be contended on behalf of the petitioner relying on the observations of this Court in Bhut Nath Mate v. The State of West Bengal, : 1974CriLJ690 that the exercise of the power of detention 'implies a quasi-judicial approach', that the power must be regarded as a quasi-judicial power. But we do not think it would be right to read this observation was not meant to convey that the power of detention is a quasi-judicial power. The only thing which it intended to emphasise was that the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention.'

It is obvious from these observations that a satisfaction of the authority as to the inclination of such person to act in any prejudicial manner indicated in sub clauses (i) to (iii) of Section 3(1) (a) of the MISA though is sine qua non for making an order of detention is subjective. In view of the subsequent amendment to the MISA, the area and depth of the probe is further conditioned and manimised. Unless a cogent and clear-cut prima facie case is made out by the petitioner, even a minimal look into the matter is not possible. Apart from these amendments to the MISA itself, there is in the field a blanket Presidential Order issued, under article 359(1) of the Constitution and in view of this Presidential Order, a citizen is barred from enforcing certain fundamental rights, referred to therein. Therefore, the minimal look which was permitted under exceptional situation is further minimised.

41. It is no doubt true that the declaration under Section 16-A of the MISA cannot stand on its own footing. The declaration issued under Section 16-A acts as a shield over the detention order made by the detaining authority under Section 3 of the Act itself. It could be shown or demonstrated that the order shown or demonstrated that the order passed under Section 3 of the MISA itself was illegal on the grounds available then only because a subsequent declaration is issued under Section 16-A of the MISA, it is not open for the detained authority or the State Government to justify the detention of the detenu independently on the basis of this declaration alone. The detention order issued under Section 3 will not merge in the declaration. From the bare reading of various sub-sections of the bare reading of various of sub-sections of Section 16-A it is quite clear that the said provision contemplate making of an order under Section 3 independently of a declaration issued under Section 16-A of the MIISA and its confirmation 16-A of the MISA and its confirmation by the State Government the legality or validity of the detention order under Section 3 can be tested. However under Section 3 can be tested. However in such a case the burden is upon the petitioner to make out a prima facie case.

42. In the present case a plea of mala fide exercise of the power' has been raised in these petitions. It is well established that a mala fide exercise of the power is wholly outside the scope of the Act conferring a power and can always be successfully challenged. It is further well established that mere allegation that the detention is mala fide would not be enough. The detenu will have to prove that mala fides. Therefore, the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often made very easily and light heatedly without placing any materiel in support of such a plea. Normally the very seriousness of the allegations demands a credible proof of the allegations demands a credible proof of high order in support of such allegations. It is well settled that a prima facie case is a case, which disclose sufficient grounds for proceeding further in the matter. It cannot be equated with the proof. Only because rule nisi is issued, it will be fallacious to hold that Court believed the case to be true, in the sense that the allegations made are deemed to have been proved. Unless specific particulars in support of the plea that the authority has exercised the discretion in an arbitrary manner or capriciously are placed on record so as to show in what way the order is arbitrary or capricious, it cannot be said that the prima facie cases is made out. In our opinion, having regard to the stringent provisions of the Act, including Ss.16-A and 18, which were introduced the Act in the background of declaration of emergency, coupled with Presidential, order Under Article 359(1) of the Constitution, it is the duty of the petitioner in a petition for habeas corpus that for making out a prima facie case he should place before the Court sufficient particulars to indicate the nature or sphere facie, a reasonable inference can be drawn that there could not have been any material before the detaining authority on the basis of which a satisfaction as contemplated by Section 3 could be reached. Mere allegation or assertion is not enough. From mere allegations or assertions is not enough. From mere allegation or assertions an inference cannot be drawn that a prima facie case is made out by the petitioner. Otherwise it will amount to accepting the mere ipse dixit of the petitioner. Once such a prima facie case is made out from which though prima facie but a legitimate inference can be drawn that there could not have been any relevant material before the detaining authority or that the detaining authority has acted in mala fide in exercise of the power or the order, is vitiated by makes in law, then obviously the burden will shift upon the detaining authority to produce before this Court the detention order or the authority of law under which the person is detained. In the present case the order of detention was served upon the detenu, Coupled with the order of detention there is a declaration under Section 16-A by the competent authority, which on review has been confirmed by the State Government. Apart from this under sub-section (3) of Section 3 an order approving the detention was also passed by the State Government. In the facie case is still heavier and by mere allegations or assertions he cannot force the detaining authority to disclose the material which the detaining authority is not obliged to disclose the material which the detaining authority is not obliged to disclose as the provisions of Section 8 to 12 are not applicable to such a case. It thing which cannot be done directly cannot be permitted to be done indirectly. If the petitioner is not entitled to know the grounds or the details of the material on the basis of which the subjective satisfaction of the detaining authority is arrived at, as the provisions of Sections 8 to 12 are not applicable, by mere filing a petition under Article 226 of the Constitution, obliquely he cannot get the same material. At the same time if the petitioner has made out a prima facie case by making specific allegations and giving sufficient particulars in support of the same, the burden cannot be discharged by the detaining authority by merely filing an affidavit denying every thing. Once a prima facie case, as indicated above, is made out then it is the duty of the detaining authority to satisfy the Court about the existence of the material, of that he has not acted in mala fide exercise of the power. The detaining authority also owes a duty to the detenu as well as to the Court. An obligation of the detaining authority to the Court is to satisfy the Court. An obligation of the detaining authority to the Court is to satisfy the Court that he has acted in accordance with the provisions of law and has not exercised the power mala fide. Therefore, even if the law permits that the detaining authority need not communicate the grounds for detention to the detenu, or disclose the particulars of the material, the detaining authority is not wholly absolved of his responsibility, when a prima facie case is made out by the detenu. In such a case is made out by the detenu. In such a case in the return on in a counter affidavit the detaining authority must broadly indicate the nature of the prejudicial activities or the affiliation or association of the detenu with the banned organisation or with the political parties and its programmes or the nature or sphere of his other activities from which an inference could be ran in favour of the detaining authority that there was some material before him from which subjectively a satisfaction could be arrived at. It is well settled that judicial scrutiny cannot be shut out merely on the strength of ipse dixit of the detaining authority. In this context a reference could be made to the following observations of this Court in Madhusudan Tukaram Kulkarni v. State, : AIR1967Bom65 :

'The other submission of the learned Additional Government pleader, and which appeared to be his main submission, was that where an order of detention passed under Rule 30 of the Defence of India Rules, 1962 is challenged, the authority who made the order is under no obligation to disclose to the Court the grounds and particulars on which the order was made. It appears to us that the above statement is an over-simplification and contains only a half-truth. The correct position appears to be that in such cases the Court acts on the presumption that official acts have been regularly performed and assume that the detention order was validly made after the detaining authority was satisfied about the necessity of making it. This initial presumption may, however, be rebutted by the petitioner by showing prima face that the satisfaction of the detaining authority was not genuine. This the petitioner may do by placing before the Court facts which show prima facie that the order was made for some ulterior purpose, or that it was made without the detaining authority applying his mind to the available material or that there could be no material before the detaining authority on the basis of which the requisite satisfaction was rationally possible. When such a case is made out by the petitioner, the burden shifts to the detaining authority, and he is required to discharge that burden by placing such facts before the Court as are necessary to show that his satisfaction was genuine. This responsibility of the detaining authority is obviously subject to two qualifications. He is not required to disclose facts in respect of which a privilege can be properly claimed under Sections 123 and 124 of the Indian Evidence Act, Secondly, it is sufficient for the detaining authority to disclose facts which show that his satisfaction was genuine, an he is not required to go further to make it out that his satisfaction was justified under the circumstances of the case. Lastly, where it is necessary for the detaining authority to discloses facts for the purposes of showing that his satisfaction was genuine and he fails to do so, an inference would legitimately arise that the order of detention was not validly made. In such cases, the Court may not accept the bare statement in the affidavit of the detaining authority that his satisfaction was genuine and was reached after a careful consideration of the material available to him.

It is thus clear that although the detaining authority is not required to justify to the Court the order of detention by stating the grounds and particulars on which the order was made, he may have in appropriate cases to disclosed such facts as would satisfy the Court that he (the detaining authority) was genuinely satisfied about the necessity of making the order. In particular, where on the facts averred by the detenu, it appears to the Court prima facie that there was no material before the detaining authority on which is subjective satisfaction was rationally possible, it is necessary for the detaining authority to place before the Court sufficient fact to rebut that conclusion'.

43. As to what will be the area of enquiry in view of the amendments to the MISA as well as the Presidential Order issued under Article 359(1) is a mute question which requires due consideration. When Sections 8 to 12 are in the filed, there is no difficulty in holding that the grounds of detention should be communicated to the detenu together with sufficient particulars so as to enable him to make a representation. If Article 22 is not suspended then the same result must follow but if Sections 8 to 12 are not applicable and Article 22 is also suspended, then the detenu is not entitled to know the grounds or get the particulars thereof. In spite of this , it cannot be forgotten that the subjective satisfaction is a condition precedent for making an order of detention under Section 3 of the Act. As to how such a satisfaction could be reached or could be scrutinised has been considered by the Supreme Court in Khudiram Das v. The State of West Bengal (cit. supra). After making a reference to the various provisions of the MISA in paragraphs 9, 10 and 11 of the said judgment the Supreme Court observed as under:

'But that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial review ability. The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for the executive the Court can always examine whether the requisite satisfaction is arrived at by the authority: if it is not, the condition precedent to the exercise of the power k would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saving that n subjective satisfaction is arrived at by the authority as required under k the statute. The simplest case is whether the authority has not applied its mind at all: in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v.Shibnath Banerji. is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose: such a case would also negative the existence of satisfaction on the part of the authority. The existence of improper purpose, that is a purpose not contemplated by ht statute has ben recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and therefore, if, in exercising the power, the authority has acted under the dictation of another body as the Commissioner of Police did in Commissioner of Police v. Gordhandas Bhanji, : [1952]1SCR135 and the officer of the Ministry of Labour and National Service did in Simms Motor Units Ltd v. Minister of Labour and National Service. (1946) 2 All Er 201 the exercise of the power would be bad and so would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rule of policy or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this happens, the satisfaction of the authority would not be in respect of the thing in regard to which hit is required to be satisfied. Then again the satisfaction must be grounded, 'on material which are of rationally probative value'. Machined v. King. AIR 1950 FC 129 . The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account. It may even be with taken into account, it may even be with the best of intention, as a relevant factor something which it could not property take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised. Pratap Singh v. State of Punjab. : (1966)ILLJ458SC . If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to then in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider.

There is also one other ground on which the subjective satisfaction reached by an authority can successfully be challenged and it is of late becoming increasingly important. The genesis of this ground is to be found in the famous words of Lord Halsbury in Sharpe v. Wakefleld. 1891 AC 173 '............. when it is said that something is to be done with in the discretion of the authorities ....... that something is to be done according to the rules of reason and justice not according to private opinion ...... according to law and not humour. It is to be not arbitrary, vague, fanciful, but legal an regular'.

So far as this ground is concerned, the Courts in the United States have gone much further than the Courts in England or in this country. The United States Courts are prepared to review administrative findings which are not supported by substantial evidence, that is by such relevant findings as a reasonable man may accept adequate to support a conclusion'. But in England and in India, the Courts stop short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. 'If, to use the words of Lords Graeene. M. R. in Associated Provincial Picture Houses Ltd. bv. Weednesbury Corporation, (1948) 1 KB 223 - words which have found approval of the House of Lords in smith v. Rest Ellor Rural District Council 1956 AC 736 and Fawceet Properties Ltd. v. Buckingham County Council, 1961 AC 636 - 'the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the Courts concerned;. In such a case, a legitimate inference may fairly be drawn either that the authority'. In such a case, a legitimate inference may fairly be drawn either that the authority 'did not honestly form that view or that informing it, he could not have applied his mind to the relevant facts'. Ross v. Papadopollos, (1958) 1 WLR 546. The power of the Court to interfere in such a case is not as an appellate authority to override a decision taken by the statutory authority, but as a judicial authority which is concerned. and concerned only, to see whether the statutory authority has contravened the law by acting in excess of the power which the legislature has confined in it. It is on this ground that the order of preventive detention made by the District Magistrate in Debu Matho v. State of West Bengal, AIR 1974 SC 316 was struck down by this Court. There, in that case, one single solitary act of wagon breaking was relied upon by the District Magistrate for reaching the satisfaction that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies and services to the community, it was necessary to detain him. This Court pointed out subject to certain reservations that it was difficult to see how

'one solitary isolated act of wagon breaking committed by the petitioner could possibly persuade any reasonable person to reach the satisfaction that unless the petitioner was detained he would in all probability indulge in further acts of wagon breaking'.

This Court did not go into the adequacy or sufficiency of the grounds on which the order of detention was based, but merely examined whether on the grounds given to the detenu, any reasonable authority could possibly come to the conclusion to which the District magistrate did. It is true that this ground in a sense tends to blur the dividing line between subjective satisfaction and objective determination but the dividing line is very much there howsoever faint or delicate it may be, the Courts have never failed to recognise it.

This discussion is sufficient to show that there is nothing like unfettered discretion immune from judicial revweability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. 'Law has reached its finest moments', said Justice Douglas, when it has freed man from the unlimited discretion of some ruler, some ............. official, some bureaucrat ................ Absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other inventions'. United States v. Wunderlich, (1951) 342 US 98.

The propositions of law laid down in this case are reiterated in subsequent recent decision of the Supreme Court in Krishna Murari Aggarwala v. The Union of India, : 1975CriLJ1648 . In this context in para. 6 of the said judgment the Supreme Court observed as under:

'It is true that the Court cannot go behind the subjective satisfaction of the detaining authority, but such satisfaction does not confer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area, though limited, within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectively. It is obvious that the subjective satisfaction of the detaining authority is a sine qua non for the exercise of power of detention and it has got to be exercised properly and discreetly. In Khudiram Das v. State of West Bengal, : [1975]2SCR832 this Court made the following observations:

'The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad'. 'In the instant case, in view of the contradictory stand taken by the detaining authorities, we are satisfied that the exercise of jurisdiction to detain the petitioner has not been made with due care and caution or in a proper and fair manner. On this ground also the order of detention stands vitiated'.

Mr. Bobde has drawn our attention towards the observations of the Federal Court in Basanta Ghose v. Emperor, and particularly towards the following observations:

'It was no doubt open to the detenu to show that the order was not in fact made by the Governor of Bihar or that it was a fraudulent exercise of the power.

The observations in (1942) AC 206. Liversidge v. Anderson and (1942) AC 284. Green v. Secretary of State for Home Affairs establish that the burden of substantiating these pleas lies on the detenu. In the words of Viscount Maugham, once the order is proved or admitted.

'It must be taken prima facie, that is until the contrary is proved, to have been properly made and that the requisite as to the behalf of the Secretary of State (here the Governor) was complied with', '............................... The mere fact that the detenu challenges the factum or the bona fides of the order or the fact that the officers of Government must naturally be in possession of information on the subject cannot be said it incumbent on the Government to adduce evidence in support of the order. In 1942 AC 284 Goddard L. J. (as he then was) referred to the possible ignorance of the detenu as to the reasons for his internment and said that that would not shift the burden of proof, because ' it in no way shows that the Secretary of State had not reasonable cause to believe or did not believe' that it was necessary to detain the person. Reference was made to (1943) 1 KB 607, Rex v. Carr-Briant as to the extent of the proof required to rebut the presumption in such cases; but as no proof whatever is forth coming in this case, no question of quantum of proof arises. The detenu no doubt made some sweeping assertions in his affidavit but no material or source of information with reference to which these assertions were made were disclosed in the affidavit. No value can therefore be attached to these asserts on. Even these affidavits did not assert that the orders of 3rd July, 1944 were not in fact made by the Governor. As regards the detenu's application to summon Mr. Houltion, it was certainly within the discretion of the learned Judge of the High Court to dismiss it, if they considered that it was only an attempt to fish for information that might be turned to some account by the detenu. To permit such a device would practically be to allow the rule as to the onus of proof to be circumvented'.

Keeping in view these principles the present cases will have to be scrutinised. Therefore, in the present cases apart from the quality of the returns filed on behalf of the detaining authority, can it be said that on an admitted position a prima facie case has been made out by the petitioner that there was no material before the detaining authority so as to reach a subjective satisfaction as contemplated by Section 2 of the MISA. It is an admitted position in the petition itself that the detenu in the present case is the Sangh Chalak of Nagpur Branch of the R. S. S. It is further an admitted position that the R. S. S. was banned by the Central Government vide a notification dated 3rd July, 1975 referred to here in before. Immediately thereafter the petitioner was detained on the 4th July, 1975. Therefore, could it be said that the position and office held by the detenu in the banned organisation was not a relevant fact which could have been taken into consideration for arriving at a satisfaction as contemplated by Section 3. It is well established that the sufficiency of the material cannot be gone into by this Court. If there is material before the detaining authority on the basic of which a satisfaction can be arrived at then, whether that material is sufficient or not is a matter which is foreign to the present enquiry. According to the respondents on the basis of admitted position it will have to be held that there was enough material before the detaining authority on the basis of which necessary satisfaction could be arrived at.

44. However, it is strenuously contended by Shri Manohar that mere holding an office in a banned organisation or a mere membership of a banned organisation could not be termed to be a material which is enough to arrive at such a satisfaction. In support of this contention Shri Manohar has relied upon the following decisions:

(1) Shripad Ramchandra v. Empower : AIR1931Bom129 ,

(2) Durgadas v. Rex AIR 1949 All 148,

(3) Nek Mohammad v. The Province of Bihar : AIR1939Pat1 ,

(4) M. R. S. Mani v. District Magistrate, Mathurai AIR 1939 k Pat 1,

(5) Madhusudan v. State : AIR1967Bom65 .

45. So far as the decision of this Court in Shripad Ramchandra v. Emperor : AIR1931Bom129 is concerned the Act with which this Court was dealing was punitive in nature. In view of the provisions of the Act it was necessary to prove that the accused was a member of an organisation after it was declared unlawful. As normally a person is presumed to be innocent, it was further held that the Crown was bound to prove this as a fact and in this context the observations were made by this Court. The nature of the enactment with which we are concerned in the present case is preventive in nature. As observed by the Supreme Court in Khudiram Das v. The state of West Bengal (cit. supra)( the power of detention is clearly of a preventive nature. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Therefore, in some extent the measure is based on suspicion or anticipation as distinct from proof. In this view of the matter, in our opinion, the observation made by this Court in Shripad's case are not relevant for deciding the controversy involved in these cases.

46. In Durgadas v. Rex (cit. supra) the Allahabad High Court was considering provisions of U.P. Maintenance of Public Order (Temporary) act, 1947, and the observations were made in the context of the specific provisions of the Act. In this context it was observed by the Allahabad High Court it was observed by the Allahabad High Court that no particulars were given in the notice which could have enabled the detenu to make an effective representation. Therefore, it is obvious that the observation n which reliance is placed by the learned counsel for detenu, were made by the Allahabad High Court in the context that the provisions like Secs. 8 to 12 of the MISA were applicable. Therefore, ultimately the Allahabad High Court came to the conclusion that since no particulars were furnished to the detenu which could able him to make an effective representation the provisions of Section 5 of the U. P. Maintenance of Public Order (Temporary) Act, 1947, were not complied with. In the case before us question of supplying any particulars to the detenue does not arise However in our opinion to some extent the observations made in para 46 of the said decision will, instead of helping the petitioners, well help the respondents. In that case after making reference to a decision in Ex parte Budd, (1942) 1 All ER 373 : 1942 2 KB 14 the Allahabad High Court observed as under;

'The learned Advocate-General has relied on the decision in Ex parte Budd, (1942) 1 All ER 373 : 1942 2 KB 14, where Budd had been detained by reason of his member ship of an organisation known as the British Union before it was dissolved. In the case of Budd the organization known as the British Union had been effectively suppressed was admitted by the Home Secretary in the House of Commons. It was argued that if the organization had been effectively suppressed, there could be no reason for the detention of Budd on the ground that he was at one time a member of an organization which no longer existed. But as was pointed out, an organization may have been legally dissolved but it may still exist in fact. Lord Green observed that 'an organisation may well cases to be dangerous if all its members are interned, but it may become dangerous if they, or perhaps any one of them, are or is released'. Reliance is placed by the learned Advocate-General on these observations of Lord Green, but under Regn 18B (IA) if the Secretary of State is satisfied that a person has been a member of any of the organisations mentioned in that Regulation k the orders of detention could be passed against him. The mere fact, therefore, that Budd had at one time been a member of the British Union would be sufficient under this Regulation to justify the Secretary of State in taking him into custody. The decision in ex parte Budd, (1942) 1 All Er 373 : 1942 KB 14 is, therefore, distinguishable. The Rashtriya Swayam Sewak, Sangh was declared an unlawful association in February 1948. The order of detention were passed in these cases in April 1948. This distinguishes these cases from those where the persons were detained on the ground of their membership of the organization soon after the organization was declared unlawful. No particulars, however, having been furnished which could enable the detenu to make an effective representation I must hold that there has not been substantial compliance with the provision of Section 5 of the Act'.

In k the present case the detenu has been detained soon after the organisation of R. S. S. was declared unlawful, and therefore, in our opinion the Allahabad case is also distinguish able.

47. So far as Nek Mohammad v. The Province of Bihar and M. R. S. Mani v. District Magistrate, Mathura, (cit, supra) are concerned, in these cases also the question was considered in the background as to whether there was sufficient compliance with the provisions of Section 4 of the Criminal Law Amendment Act, when particulars about the activities of the person were not supplied to the detenu so as to enable him to make a representation. In that case it seems that the detenu was merely a member of an organization. In the case before us in view of the declaration issued under Section 16-A of the MISA, the provisions of the Sections 8 to 12 are not applicable, Apart from this, the provisions of Article 22 of the Constitution are also suspended. More over, section 18 of the Act further provides that n person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any. It appears that the decision of the patna High Court was referred to and distinguished in k Shah Mohd, v, Crown AIR 1950 Pesh 1. In view of the specific provisions of the Act. in our opinion, the principles, of law laid down in Patna or Madras cases are also not applicable to the facts and circumstances of the present case.

48. Though in these petitions the challenges based on various avarmints and allegations made in the petitions are given up, the said challenges and avarmints are indicative of the attitude and inclination of the detenus which show their affiliation with the political parties or organization. Affiliation with an organization which was alleged to be indulging in the activity prejudicial to the internal security, public safety and maintenance of public order if read in the context of the declaration of emergency on the ground of internal disturbance may in a given case lead to reasonable inference that a person concerned, who is either a leader or a prominent and active worker or is a person in control of the organisation or its branch, is likely to act in a manner which can be termed as prejudicial to the security of India. The detenus in these cases were detained either immediately after the proclamation of emergency or after the order banning the R. S. S. was issued. The said ban order is not challenged before us. In one of the petitions a specific averment has been made by the detaining authority that Bhartiya jan Sangh is a political wing of the R. S. S. Moreover in these cases the competent authority has issued a declaration under Section 16-A that for effectively dealing with the emergency it was necessary to detain the detenus. These declaration are also not independently challenged. The various avarmints in the petitions as well as the returns clearly indicate not only the detenus' affiliation clearly indicate not only the detenus' affiliation with the party and organisation, but it also disclosed their affiliation with their programes.

49. As to what could be the effect of the person's association with such a party was considered by the Federal Court in Machinder Shivaji v. The king AIR 1950 FC 129. While considering this question in para 7 of the judgment the Federal Court observed as under:

'The grounds communicated to the appellant stated, inter alia, that he was working for the Communist Party of India.

'which is spreading its doctrine of violence in different parts of the country, fomenting industrial strikes, causing agrarian unrest, rendering life and property insecure, and trying to seize power by violence' and that he was assisting and associating with a named prominent member of the party who had gone underground. It was further stated that, From the secret information available to them, the Provincial Government are satisfied that you are likely to go underground and from there guide the various subversive activities of the Communist Party and thus acting a manner prejudicial to the public safety, order and tranquillity'.

It was said that the Communist Party not having been handed in the province, the appellant's alleged membership of that party, even if true, could not , in the absence of any allegation of acts or conduct on his port suggesting that he was acting or was likely to act in a manner prejudicial to public safety, be regarded as a ground for satisfaction under Section 2(1) (a). We cannot accede to this contention. While mere behalf in or acceptance of any political ideology may not be a ground for detention under the Act, affiliation to a party which is alleged to be spreading its 'doctrine of violence rendering life and property insecure and trying to seize power by violence' may in certain circumstances,. lead to an inference that the person concerned is likely to acting a manner prejudicial to the public safety, order or tranquillity. The fact that the Party had not been outlawed is immaterial that being a matter of expediency. The allegations regarding the subversive activities of the Party made in the grounds communicated to the appellant, and later repeated in the affidavit of the Chief Secretary filed on behalf of the Provincial Government remain uncontradicted, the appellant having only stated that he was not a member of that Party and did not work for it and that he had always been a 'constitutional trade unionist'. It must therefore be taken for the purposes of this case, that the said allegations are well-founded. If so, membership of that party cannot be ruled out of consideration as material on which no satisfaction could rationally be grounded. There are also the allegations already referred to about the appellant assisting and associating with a prominent member of the party who has 'gone underground' and about the likelihood of the appellant himself going underground and from there guiding the alleged subversive activities of the party. On these materials which are relevant to the purposes of the Act, the Provincial Government say they are satisfied that the appellant is likely to act in a manner prejudicial to the public safety, and it is not for the Court with its strictly limited power s of interference under Section 4 of the Act. to say that they should not be stated on such materials'.

50. In our opinion, these observation swill aptly apply to the present case . In the case before us vide notification dated 3rd July 1975, the Central Government on being satisfied with respect to the organisation, known as R. S. S. that it is an organisation which is, and whose members and the persons in control whereof are indulging activities prejudicial to the internal security and the maintenance of public order, had directed that sub-rule (1) of Rule 33 of the Defiance that sub-rule (1) of Rule 33 of the Defence and Internal Security of India Rules, 1971 shall apply to the Rashtriya Swayam Sevak Sangh. As already observed, this notification has not been challenged before us. Therefore it is quite clear form the bare reading of this notification that the Central Government was satisfied that the said organisation and its members and the person in control thereof were indulging in the activities prejudicial to the internal security and the maintenance of public order. It cannot be forgotten that in the present cases the proclamation of emergency was declared by the president of India because there existed a grave emergency whereby the security of India is threatened by internal disturbance. This proclamation of emergency is also not challenged before us. Therefore, if in the background of this proclamation of emergency the notification issued by the Central Government dated 3rd July 1975 is read, then in our opinion it cannot be said that there was no material before the Commissioner of Police from which a satisfaction could be arrived at. It is pertinent to note that in the present case the detenue was detained immediately after the notification dated 3rd July 1975 was issued. In the case before the Federal Court the Party concerned was not declared as unlawful. In spite of this by virtue of the affiliation of the detenu with the said organisation relating to which the Government was satisfied that it was indulging in the activities which were prejudicial to the public safety or the security of the country, the Federal Court held that such a satisfaction could be arrived at on basis of such a material.

51. However, Shri Manohar has relied upon a decision of this Court in Madhusudan Kulkarni v. State (cit supra) and has contended that by the mere fact that the detenu is a responsible office-bear of the banned organisation an inference cannot be drawn that his personal activities were such which were prejudicial to the security of India. In that case the detenu participated in a function which was held on 12-11-1964 wherein a Satyanarayan Puja was performed for religious thank giving on the occasion of the release of Gopal Godse and Karkare, who were convicts in the Gandhi murder trial. On 15-11-1964 Shradha ceremony was performed on the occasion of the death anniversary of Nathuram Godse who was sentenced to death in the said trial and was executed. According to the petitioner in that case he merely attended those functions. While quashing the order of detention this Court observed that there was no likelihood of the functions like those of Satyanarayan Puja and Shradha ceremony being repeated in the near future. It was also found in that case that the detenu was no an active participant in any of those functions. Therefore, this Court came to the conclusion that by mere attendance at the said functions which were not likely to be repeated, a satisfaction could not be arrived at that the detenu was likely to indulge himself in the same or similar actively as there was no likelihood of the function slike those of Satyanarayan Puja or Shradha ceremony being repeated in near future. Therefore, the said decision turned on its own facts. No general principle as k such was laid down in that decision by this Court, nor a reference was made to the decision of the Federal Court in Machinder Shivaji v. The King (cit. supra). No decision has been brought to our notice either overruling the decision of the Federal Court in Machinder's case or in which the said decision is distinguished. On the contrary a reference has been made by the Supreme Court to this decision in Khudiram Das v. State of West Bengal (cit, supra) though in different context. The question before the Federal Court directly arose in the context of the preventive detention and in that case having regard to the association of a person with the political party which was indulging in the activities described to in the said decision, an inference was drawn by the Federal Court that it cannot be held that such a membership is not relevant at all for arriving at a satisfaction. If the sufficiency of the material could not be gone into, then, in our opinion, it is not open for this Court to substitute its own opinion or judgment in place of the satisfaction of the detaining authority. In the present case according to the detaining authority he has consider the activities of the detenue and he was satisfied that it was necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the security of India. Apart from this, while issuing the notification under the Defence and internal Security of India Rules, 1971 dated 3rd July 1975, the Central Government itself was satisfied that the organisation know as Rashtriya Swayam Sevak Sangh is an organisation which is and whose members and the persons in control whereof were indulging in the activities prejudicial to the internal security, the public safety and the maintenance of public order. From this notification therefore, it is quite clear that the Central Government was satisfied with respect to the members and the persons in control of the said organisation that they were also indulging in the activities prejudicial to the internal security, Viewed in this back ground, in our opinion, it cannot be said that when the order of detention was passed by the Commissioner of Police with reference to the detenu in Special Civil Application No. 903 of 1975 he had no material before him, on the basis of which he could have been satisfied as contemplated by Section 3 of the MISA. Apart from the general allegations made about mala fides, no particulars have been given in the petition in support of these allegations. However Shri manohar has restricted his argument so far as allegation of mala fide is concerned, to malice in law.

52. The question as to what could be termed as malice in law was considered by the Supreme Court in Bhut nath Mate v. The State of West Bengal, : 1974CriLJ690 . In this context in para 14 of the judgment the Supreme Court observed as under:

'We are concerned as earlier stated, only with some aspects of the preventive detention jurisprudence in the present case, and we confine ourselves to them. The District Magistrate should be bona fide satisfied about the prejudicial activities of the detainee. Absence of bona fides in this context does not mean proof of malice, for an order can be mala fide although the officer is innocent. The important point is that the satisfaction of the public functionary, though subjective, must be real and retaional, not colourabel, fanciful, mechanical or unrelated to the objects enumerated in Section 3 (1) of the Act. Viscount Haldance, L. C., in Shearer v. Shields, 1914 AC 808 drew the line neatly thus: 'Between malice in act and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently'.

It was contended by Shri Manohar that as the order passed by the detaining authority was based on no material and the detaining authority has failed to produce any material before this Court it should be held that the order passed by the Commissioner of Police was passed in mala fide exercise of power, because it amounted to malice in law. In this context a reference could usefully be made to the observations in Makhan Singh's case. In para 36 of the said judgment the Supreme Court observed as under:

'In is hardly necessary to emphasise that the exercise of a power mala fide is whole outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention is mala fide would not be enough, the detenue will have to prove the mala fides. But if the mala fide are alleged, the detenu cannot be precluded form substantiating his plea on the ground of the bar created by Article 359(1) and the Presidential Order. That is another kind of plea which is outside the purview of Article 359(1)'.

In the present case, in the view which we have taken it cannot be said that the statutory power under Section 3 of the Act is exercised by the Commissioner of Police for a purpose foreign to the provisions of the MISA, nor could it be said that the power conferred by Section 3 has been utilised by him for some ulterior purpose not connected with the object of the Statute. On the basis of the admitted position in this case, therefore, it will have to be held that there was enough material before the detaining authority from which he could have recorded his satisfaction that it was necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the security of India. In this view of the matter, in our opinion, there is no substance Special Civil Application No. 903 of 1975. Consequently the same is dismissed.

Special Civil Application No. 995 of 1975

53. So far as Special Civil Application No. 995 of 1975 is concerned, in para 3 of the petition it is stated that the detenu is an Advocate of this Court and is principally practicing at Nagpur with approximately 25 year of standing. It was further stated that the detenu has never advocated and has always condemned acts of violence and there is no iota of evidence, much less there could be any, with the detaining authority to come to a satisfaction that the detenu's activities are likely to the prejudicial to the maintenance of public order or the internal security of the country. In para 4 of the petition it is contended that the detenu is not an office-bearer either of the Rashtriya Swayam Sevak Sangh or the Jan Sangh. However, it is admitted that he has his leading in ideologies of these institutions. According to the petitioner, this R. S. S. is an organisation which, is not political but is a cultural one, dedicated to the services of the country through character building of the people and it rejects the doctrine of violence. Further, according to the petitioner, the detenu is a prominent social worker and has been always taken as a Member on the different peace Committees on several occasions by police authorities. He also holds influences in the business and education circles at Kamptee. According to the petitioner, the detenu has never been charged with any offence, even a political one, and has a clean record. In para 9 of the petition, a contention was also raised that there are no grounds to warrant the detention of the detenu and the District Magistrate could have no material before him to be satisfied that the detenu was going to act in a manner prejudicial to the security of the State or to the maintenance of public order. According to the petitioner, the District Magistrate has acted under the orders of some other persons in a most mechanical manner without any application of mind either to the relevant prevision of the MISA or in respect of the necessity of the detention of the detenu. The order has been passed for extraneous reasons and with ulterior motive. The same has been issued in colourable exercise of power vested in the Magistrate and the said exercise in neither honest nor bona fide.

54. In the counter-affidavit filed by the District magistrate it is contended that the detention of the detenu was ordered by the respondent No. 2 for effectively dealing with the emergency , and therefore, he had given a declaration to that effect as required by law. In para 4 of the return the District Magistrate denied the avernment that the detenu is not the officer-bearer of R. S. S. or the Jan Sangh. According to the respondents, he is an active worker of the R. S. S. propagating the cause of this organisation. The respondents denied the fact that the R. S. S. is purely a cultural organisation dedicated to the service of the country through character building of the people. The respondents admit the fact that he detenu was a member on the peace Committee on some occasions. According to the detaining authority the order for detention was made by him for the acts of the detenu which were prejudicial to the maintenance of the internal security of the country. He denied the allegation that the order was passed in mala fide exercise of power of amounts to gross abuse of powered that the detention order was issued by the District Magistrate, Nagpur on the basis of the material placed before him. In para 20 of the return, the detaining authority submitted that the detention order was issued on his satisfaction and not of anyone else. In additional affidavit filed on 29th September 1975 , the detaining authority denied the allegations of mala fides or that he has made the order in colourable exercise of the power. According to him, he examined and considered the activities of the detenu and he made the order as he was satisfied from the information gathered which was duly considered and examined by him that the activities of the detenu were of such nature that if permitted to be carried on the same would be prejudicial to the security of India. According to him he was satisfied that it was necessary , with a view to preventing him from acting an any manner prejudicial to the security of India, to make the detention order. He further stated that he was satisfied that if he had no passed the detention order, the detenu would have continued to carry on the said activity. He further submitted that he had arrived at the said subjective satisfaction on the basis of the material before him. In this case the order of detention was issued by the District Magistrate, Nagpur on 6th July 1975. The said order of detention was approved by the State Government under sub-section (3) of Section 3 of the Act on 17th July 1975. On the date of detention itself, namely 6th July 1975 the detaining authority had also issued a declaration under Section 16-A (3) of the Act. The said declaration was reviewed by the State Government and the was confirmed k on 17th July 1975. To day an addition affidavit has been filed by the detaining authority stating that the petitioner has suppressed the fact that the detenu is an active member of the R. S. S. and a staunch member of the Bhartiya Jan Sangh, Kamptee Unit. After this affidavit was filled, we had given an opportunity to the detenu to file a counter-affidavit if he so desired. A statement has been made before us on behalf of the detenu that he does not what to file any affidavits in reply. Therefore, the position which emerges in the present case is that according to the detaining authority the detenu is an active member of the R. S. S. and a staunch worker of the Bhartiya jan Sangh, Kamptee Unit, whereas according to the petition, the detenu is not an office-bearer either of the R. S. S. or the jan Sangh, though he has leanings towards the ideologies of these institutions. According to the petitioner, the detenu is a prominent social worker in the township of Kamptee and has been always taken as member of the several peace committees on several occasions by the Police authorities. He also holds influence in the business and education circles at Kamptee. However, the positive statement made by the detaining authority that the petitioner is an active member of R. S. S. is not controverted.

55. The contentions which are raised on behalf of the petitioner in this petition was also similar to the one in Special Civil Application No. 903 of 1975. In this Case also, as was the case in Special Civil Application No. 903 of 1975, no personal grievance was made against the detaining authority. The allegations of mala fides in this case were also restricted to the allegations of malice in law. However, it was contended by Shri Manohar that no material has been placed before this Court by the detaining authority to indicate the activities of the detenu from which a legitimate inference could be drawn that his activities were prejudicial to the security of India. In this case the detenu is not shown to be an office bearer of any banned organisation. On because the detenue has leanings in ideologies of either the R. S. S. or the Bhartiya Jan Sangh, an inference cannot be drawn that he was actively associated with the activities of the said organisation, and therefore, was indulging in the activities which could be termed to be prejudicial to the security of India.

56. In para 10 of this petition the petition has challenged the order of the detention of the detenu on the ground that if was per se mala fide and gross abuse of the power besides in complete subversion of democratic process and total denial of individual liberty for the reasons stated in sub-paras (a) to (n). In sub-para (b) of Para 10, the petitioner has made a reference to a Janta morcha which comprised of four political parties, namely, Congress (O) Bhartiya Jan Sangh, Socialist party, Bhartiya Lok Dal and such independents who under the leadership of Shri jaya Prakash Narayan peacefully struggled against the drift to authoritarianism and collapse of democratic and moral norms which have marked Smt. Gandhi's regime. In sub-para (f) of para 10, then he made a reference to the fact that the aforesaid parities had decided to start non-violent peaceful Satyagraha to create public opinion to preserve healthy democratic convention. According to the petitioner, on 25th June 1975 Shri Balasaheb Deoras reached Nagpur after his tour, but he was arrested at the railway station. He then made a reference to the fact that the R. S. S. along with other 25 organisations was banned by the Government. According to the petitioner, this was a gross abuse of power under the Defence of India Rules inasmuch as the R. S. S. never engaged in militant agitation or tried to subvert the Government much less systematically as alleged by the Home Minister, Shri Brahmanada Reddy. Then in sub-para (ii) of para 14 which relates to the grounds, the petitioner contend that the detenu was arrested within 3 hours of the order banning the R. S. S. was issued by the respondent No. 1 from New Delhi. This statement is mad by the petitioner on the assumption that the banned order was issued on the 4th July 1975, when as a matter of fact it was issued on 3rd July 1975. On the basis of these avarmints various other contentions were also raised by the petitioner challenging the very fact of emergency and other Ordinances and Amendments to the Act as well as the Constitution. Though the challenges based on various avarmints and allegation made in the petition are given up, in our opinion, the same are indicative of the attitude and inclination of the detenu towards political life and various happenings which took place prior to his detentions. It also indicates the nature and sphere of his activities. They also indicate his affiliation l with the Bhasrtiya Jan sangh as well as with the R. S. S. the banned organisation.

57. The petitioner has admitted that the detenu, though is not an office bearer either of the R. S. S. or the Bharatiya jan Sangh, has leanings towards the ideologies of these institutions. In para 4 of the return a categorical statement has been made by the detaining authority that the detenu is an active worker of the R.S. S. propagating the cause of this organisation. In the additional affidavit filed before us yesterday this position has been reiterated by the detaining authority. The detaining authority has stated on oath that the detenu is an active member of the R. S.S. and the stanch worker so of Bhartiya Jan Sangh, Kamptee Unit. These statements of facts made in the affidavit are not controverted by the detenue or the petitioner in spite of an opportunity being given. If this is so, in our opinion for the reasons given in Specials Civil Application No. 903 of 1975 read with the observations of the Federal Court in Machinder Shivaji v.The king (cit. supra), it cannot be said that there was no material before the detaining authority for passing such an order, nor it could be said that the order has been passed mechanically or without application of mind. In view of the affidavit filed before us by the detaining authority it cannot also be said that the order is not based on his independent satisfaction nor it has been demonstrated or shown that the provisions of the MISA are not complied with. Once it is found that the order is based on an independent satisfaction of the detaining authority and that the detaining authority had relevant material before it, then it is well settled that this Court cannot go into the sufficiency of the material. The area and the depth of probe in such matter is conditioned by the provisions of the MISA, as amended, together with its purpose and language, and therefore this Court can have only a minimal look and that too under exceptional situation. This Court's jurisdiction in such matter is peripheral and unless a clear case is made out indicating either the mala fides of the detaining authority or that the provisions of Section 3 of the MISA were not complied with, it will not be possible for this Court to substitute its own opinion objectively in place of the satisfaction recorded by the detaining authority. In the present case apart from the detention order, the detaining authority had also issued a declaration under Section 16-A of the Act while making the detention order. The initial detention order was duly approved by the State Government under sub-section (3) of Section 3 on 17th July 1975 and on review of the declaration the State Government as also confirmed the declaration issued by the detaining authority under Section 16-A of the MISA. We have before us also an affidavit sworn by Shri Limye, the Section Officer of the Home Department, which indicates that the detaining authority has placed before the State Government the entire material and on the examination of the said material the State Government was satisfied and was pleased to approve the order of detention passed by the District Magistrate, Nagpur. Similarly the State Government on examination of the material was pleased to confirm the declaration dated 6th July 1974. In view of the uncontroverted facts referred to by the detaining authority in his affidavit it is not possible for this Court to interfere with the order of detention in this case.

58. In the result the petition faith and is dismissed.

59. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //