1. In these and other companion writ petitions the validity of the Maharashtra Ordinance No. III of 1981 known as the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug offenders Ordinance, 1981, hereinafter called as the Ordinance is challenged on various grounds.
2. Shri Gumaste, learned Counsel appearing for the petitioner in Criminal Application No. 1254 of 1981 contended before us that the Ordinance is ultra vires of the powers of the State legislature, it being beyond legislative competence. He further contended that the Ordinance has been issued in colourable exercise of the powers and in substance amounts to a fraud on Constitution. According to the learned Counsel by enacting this Ordinance, the legislature wants to travel beyond the scope of the National Security Act and this Ordinance has been enacted with the sole intention to rope in the persons who cannot be detained under the said Act viz. National Security Act. The fiction incorporated in the explanation to Section 2 of the Ordinance travels beyond the scope of entry III of Schedule VII, viz. the concurrent list and by creating this artificial fiction the legislature wants to include in its import activities which have no nexus with the public order. Thus, it is contended by Shri Gumaste that by this explanation the scope of Section 2(a) of the Ordinance is being widened beyond the scope of entry III of Schedule VII. Be also contended that such an Ordinance could not have been issued by the Governor under the said entry. According to the learned Counsel from the statement of the aims and objects of the Ordinance and particularly part IV thereof it is quite clear that this Ordinance has been issued in colourable exercise of the powers to indirectly achieve the object which is directly forbidden by the National Security Act.
3. Shri Rane, learned Counsel appearing in Criminal Application No. 1278 of 1981 adopted the arguments advanced by Shri Gumaste and also contended that Section 9 of the Ordinance is bad in law in view of the 44th amendment to Article 22(4) of the Constitution of India which relates to constitution of Advisory Board. However, we were informed that the said question was already argued before the Supreme Court in the context of the National Security Act and the judgment in that behalf has been reserved. In view of this Shri Rane has reserved his argument on that count and sought liberty from us to raise this contention if necessary at a later stage. However, it is contended by Shri Rane that Section 9 of the Ordinance is ultra vires of the petitioners' fundamental right guaranteed under Article 14 of the Constitution of India as the provisions made in the National Security Act in this behalf are more favourable. According to Shri Rane from the provisions of Section 17 of the Ordinance it is quite clear that the persons who are to be detained under the present Ordinance could also be detained under the National Security Act, though by Section 17 it is now declared that after the commencement of the Ordinance no order of detention will be issued under the National Security Act in respect of the persons covered by the present Ordinance, Therefore, according to Shri Rane if the provisions of Section 9 of the National Security Act are compared with the provisions of Section 9 of the Ordinance, then the discrimination is apparent on the face of the record and, therefore, the provisions of Section 9 of the Ordinance are void under Article 14 of the Constitution.
4. On the other hand it is contended by Shri Sawant, learned Counsel appearing for the Advocate General that the Governor is competent to issue the said Ordinance under entry 3 of Schedule VII, List III, viz. the concurrent list. The ordinance only provides for detention of certain categories of persons and that too for the activities which adversely affect maintenance of public order and nothing more. This special law is limited to category of persons specified therein. He also contended that the legal fiction created in the explanation to Section 2 is a limited one and by the said deeming clause nothing is brought into the import of the legislation which is not otherwise affecting the maintenance of public order. According to Shri Sawant the explanation is incorporated by way of abundant caution and it does not travel beyond the scope of entry 3 of List III of Schedule VII. Shri Sawant also contended that by Section 9 of the Ordinance a specified class of persons for whom the present Ordinance is issued is treated equally and, therefore, it cannot be said that there is any hostile discrimination between the persons belonging to the same class.
5. With the assistance of the learned Counsel appearing for both sides we have gone through the relevant provisions of the Ordinance. From the preamble to the Ordinance it is quite clear that this Ordinance was promulgated by the Governor to make a provision for detaining the persons belonging to the categories of specified classes, namely, slumlords, bootleggers and drug-offenders as defined by the Ordinance itself. Section 2 of the Ordinance defines the expression 'acting in any manner prejudicial to the maintenance of public order' in the following terms;
2. Definition-In this Ordinance unless the context otherwise requires-
(a) 'acting in any manner prejudicial to the maintenance of public order' means-(i) in the case of a slumlord, when he is engaged or is making preparations for engaging in any of his activities as a slumlord, which affect adversely, or are likely to effect adversely, the maintenance of public order;
(ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order;
(iii) in the case of a drug-offender, when he is engaged, or is making preparations for engaging in any of his activities as a drug-offender, which affect adversely, or are likely to effect adversely, the maintenance of public order.
Explanation:-For the purpose of this Clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health;
It is no doubt true that in the explanation the words 'shall be deemed likely to be affected or shall be deemed to have been affected adversely' have been used. However, while defining the substantive expression, viz. 'acting in any manner prejudicial to the public order' qua each of the category of persons the legislature has taken care to lay down that those activities which affect adversely or are likely to affect adversely the maintenance of public order could only be equated with 'acting in any manner prejudicial to the maintenance of public order'. It is well known that the proper function of the explanation is to make it plain or elucidate what is enacted and not to add to or subtract anything from it, The explanation does not either restrict or extend the enacting part. It does not enlarge or narrow down the scope of the provisions that it is supposed to explain. Sometimes explanation is also added ex abundanti cautela to allay groundless apprehensions. The explanation will have to be construed having regard to its context and setting. It should be so read as to harmonize with and clear of any ambiguity in the main section. The explanation cannot be so construed as to widen the ambit of the section or enlarge its scope. Fiction, if any, is also created in this explanation for a limited purpose. It is well settled that legal fiction is to be limited to the purpose for which it is created and should not be extended beyond the legitimate field.
6. The word 'deemed' is used a great deal in modern legislation in different senses and it is not that deeming provision is every time made for the purpose of creating a fiction. Deeming provision might be made to include what is obvious or what is uncertain, etc. However, in each case it would be a question as to with what object the Legislature has made such a deeming provision. (See Consolidated Coffee Ltd. etc. v. Coffee Board : 3SCR625 ). In the present case Ordinance is promulgated by Governor under Article 213 of the Constitution. In view of the provisions of Article 246, the said Ordinance is referrable to entry 3 in concurrent list which reads as under:
3. Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention...
The State legislature is authorised to enact law, providing for preventive detention for the reasons connected with the maintenance of public order.
7. The scope or ambit of the expression 'public order' as used in entry 3 of List III of the Seventh Schedule is by now well understood in view of the various decisions of the Supreme Court on the subject. In Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 , this is what the Supreme Court has observed (at page 758):
We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the 'maintenance of public order. It follows that if such a person is not detained, public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings;. Does the expression 'public order' take in every kind of disorder or only some of them? The answer to this serves to distinguish 'public order' from 'law and order' because the latter undoubtedly takes in all of them. Public order if disturbed must lead to public disorder. Every breach of the peace may not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters are of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect the public order, it must affect community or public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of the State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression 'maintenance of law and order' the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.
The said decision was then explained by the Supreme Court in Kanu Biswas v. State of W.B. : 1972CriLJ1006 In Nagen Murmu v. State of W.B. : 1973CriLJ667 , the Supreme Court clarified the position by saying that 'public order' has repeatedly been described by the Supreme Court to be the even tempo of the life of the community taking within its field even a specified legality and a substantial section of the society as a whole. The same position is made further clear in Milan Banik v. State of W.B. : 1974CriLJ917 and Bagchansing v. State of Punjab : 1980CriLJ636 . Therefore, the distinction between law and order and the public order is by now well known and one cannot be equated with another. When the Governor of Maharashtra promulgated the present Ordinance under entry 3 of List III of the Seventh Schedule it will have to be presumed that the Governor very well knew this distinction between public order and the law and order, as judicially interpreted. It is well settled that when the words and phrases previously interpreted by the Courts are used by the legislature in a latter enactment, then in the absence of anything to the contrary, there is a presumption that the legislature intended to convey by their use the same meaning which the Court had already given to them. This presumption will be strong where these words have received a settled meaning by series of decisions of the highest Court of the country. This is more so in view, of Article 141 of the Constitution of India which lays down that the law declared by the Supreme Court is binding upon everybody. This is one of the well settled rules of interpretation of statute. Thus the words of legal import occurring in a statute will have to be construed in their legal sense, because these words have in law acquired a definite and precise meaning and the legislature must be taken to have intended that they should be understood in that sense and no other. If the explanation to Section 2 is construed and interpreted in this context, then in our opinion it cannot be said that it travels beyond legislative competence of the State legislature, viz. entry 3 in the Concurrent List. In our opinion the explanation does not widen ambit of main section nor it enlarges its scope. The words and expressions used in the latter part of the explanation deal with matters affecting the public generally or the section of the community which could safely be termed as affecting the maintenance of public order. Therefore, it appears that the word 'deemed' is used by the legislature in explanation to Section 2 to mean that public order shall be regarded or taken to be affected adversely or likely to be affected adversely, if the activities result in the consequences enumerated therein. In true sense of the term it does not create any legal fiction so as to include things and activities in its import, which have no reasonable nexus with the maintenance of public order. Therefore, it is not possible for us to accept the contention of Shri Gumaste based' on this explanation. It will not be correct to say that by incorporating the said explanation the legislation wants to travel beyond the scope of entry 3 in the Concurrent List and include within its import the activities which are not germane or connected with maintenance of public order. This position is further clear from the definitions of terms 'bootlegger, drug-offenders and slumlords'. As observed by the Supreme Court in P.N. Kaushal v. Union of India : 1SCR122 an unbridled liquor trade is fraught with danger to health, morals, public order and the flow of life without stress or distress. The statement of aim and objects as well as preamble to the Ordinance, make this position further clear. The Ordinance was issued to ensure that the maintenance of public order in the State is not adversely affected by the activities of these known antisocial elements.
8. It is not disputed before us that in view of the provisions of Article 246 read with Article 254 and the Concurrent List the State Legislature has a power to enact the present piece of legislation. This position is made clear by the Supreme Court in State of W.B. v. Ashok Dey : 1972CriLJ1010 . Once it is held that the legislature was competent to enact the present legislation, then it is difficult to hold that the present piece of legislation travels beyond entry 3 in the Concurrent List.
9. The provisions of Section 17 of the Ordinance were then challenged by the learned Counsel appearing for the petitioners under Article 14 of the Constitution of India. The said section reads as under:
17. Detention orders against any slumlord, bootlegger or drug-offender to be made under this Ordinance and not under the National Security Act - On and after the commencement of the Ordinance, no order of detention under the National Security Act, 1080 shall be made by the State Government or any of its officers under that Act, in respect of any slumlord, bootlegger or drug-offender in the State of Maharashtra on the ground of preventing Mm from acting in any manner prejudicial to the maintenance of public order, where an order of detention may be or can be made against such person under this Ordinance.
10. It is contended by the learned Counsel that there are certain activities and persons who are covered by the present Ordinance as well as the National Security Act. The Constitution of Advisory Board is one of the necessary ingredients of the preventive detention law in view of Article 22 of the Constitution. Consideration of a case of a detenu by a properly constituted board is not an empty formality, Under the National Security Act the board constituted is headed by the Chairman who is or has been a Judge of High Court. In the present Ordinance such a provision is not made and, therefore, according to Shri Rane Section 9 of the Ordinance results in hostile discrimination between the persons covered by both the enactments and is therefore ultra vires. It is not possible for us to accept this contention. The concept of equality as incorporated in Article 14 is by now well understood. It is well settled that what Article 14 forbids is hostile discrimination. Equality before law does not mean that the same set of law should apply to all persons under every circumstance, including differences and disparities between men and things. Reasonable classification is inherent in the very concept of equality because all persons living on this earth are not alike and have different problems. It is equally settled that before a person can claim to be discriminated against another he must show that all other persons are similarly situated or equally circumstanced. See Puthumma v. State of Kerala : 2SCR537 . By the present Ordinance three categories of persons, viz. persons belonging to class of slumlords, bootleggers and drug-offenders are classified together to be dealt with under the Ordinance. By Section 17 of the Ordinance it is made clear that after the commencement of the Ordinance no order of detention under the National Security Act shall be made in respect of slumlord, bootlegger or drug-offender in the State of Maharashtra on the ground of preventing him from acting in any manner prejudicial to the maintenance of public order. It appears from the preamble to the Ordinance that the public order was adversely affected because of the dangerous activities of these persons. This had created a special problem in the State of Maharashtra and to deal with this special problem this special law was enacted. All the persons covered by the present Ordinance are equally treated and it is nobody's case that there is any discrimination so far as the persons governed by the Ordinance are concerned. Classification contemplated by the Ordinance is well defined. These persons belong to a special class for whom a special legislation was thought of and therefore it cannot be said that the provisions of the Ordinance result in any hostile discrimination qua persons similarly situated or circumstanced and is therefore, violative of Article 14 of the constitution.
11. An argument was also advanced by Shri Gumaste on the basis of the statement of aims and objects attached to the Ordinance and it was contended by Shri Gumaste that the substantive provisions of the Ordinance should be construed in the light of aims and objects and so construed the Ordinance travels beyond entry 3 of the concurrent list. It is not possible for us to accept this contention for the obvious reasons. Apart from the fact that the Ordinance does not travel beyond the scope of entry 3 of the concurrent list, a reference to the statement of objects and reasons is wholly inappropriate in the present case, as in our view the provisions of the Ordinance are clear and unambiguous. As held by the Supreme Court in Puthumma's case (supra), in such circumstances it is not necessary to delve deep into the statements of objects and reasons of the Ordinance.
12. In the result, therefore, it is not possible for us to accept any of the contentions raised by the learned Counsel for challenging the validity of the present Ordinance. Having decided the general contention, regarding the validity of the Ordinance we now propose to deal with the individual case on merits, separately, because the question as to whether a particular activity of the detenu has a nexus with the maintenance of public order, or not will have to be decided on the basis of facts and circumstances of each case, and no general rule can be laid down in that behalf.