1. The three questions to be adjudicated in this Full Bench case are: (i) Whether the statement relating to the past conduct of the detenu in the grounds of his detention is justice-able; (ii) whether the statements furnished in the grounds are vague; & (iii) whether the delay in communicating the grounds entitles the detenu to be released.
2. These have arisen in a petition filed by the mother of the detenu, under Article 226, Constitution of India, as well as Section 529), Hyderabad Cri, P.C. She prays for release alleging that the son is a resident of village Ravirala, Mahboobabad Taluka, Warangal District & was arrested on 16-7-1949 at Mahboobabad; since his arrest; she is unaware of the crime or reasons for which he hat been arrested & the officials concerned have, notwithstanding several applications, failed to inform her; so far as she is aware, the son has also not been given any order or the reasons for his detention. In para. 8 of the application, it is claimed that the son is an agriculturist, a primary member of the State Congress, possesses several acres of cultivable immovable property, pays Rs. 200 as land revenue is a law abiding citizen, & has no connection with the Communist Party, Then the detention is alleged to be without any reason, 'mala tide' & causing monetary loss & starvation to the family.
3. After notice & several adjournments, the Govt. Advocate, on 6-12-1950, filed his reply, in which it is stated that the detemn is the brother-in-law of one Theegla Satyanarayana, the dangerous underground leader of Manukota was acting as a spy for him, is one of those responsible for the murders in Khoosumanchi Bus incident, and a double murder of the Police Constables of Pindipole Road, was keeping in close touch with the underground Communist leader Theegla Satyanarayana, supplying information & satisfying the needs of his 'dalam' & also supplied a cyclostyle machine to the hostile party. The reply adds that having been fully satisfied about the detainee's acting & likely to act in a manner prejudicial to the maintenance of the public order, an order was issued on 25-2-1950, under the Preventive Detention Act, the grounds of detention prepared on 17.8-1960 & served on the detenu on 29.8-1950. This delay of nearly six months in communicating the grounds is explained as being due to the preparation & serving of more than four thousand such orders & grounds since passing of the Detention Act. Then in para. 4 of the reply, it is added that there are several other facts which are not in the public interest to disclose & which render necessary the detention.
4. The copies of the order of the detention & the grounds were filed in support of the reply, which show the warrant to be under Sub-section (1) of Section 8, Preventive Detention Act (IV 4. of 1950), & the grounds to have been communicated, though several months after the date of the warrant. Though no importance should be attached to the allegation in the petition about the detainee being still unaware of the reasons for his arrest or to his being in jail several months prior to the detention under Act IV [4 of 1950, still delay in giving the grounds & in affording opportunity to make representation is justiceable issue in Indian Law. The authorities concerned can apprehend prejudicial activities on the part of a detenu from his past conduct, even though such conduct may have been long time ago & he has in the interval been in jail When the authorities are apprehensive of such future conduct, their satisfaction is subjective & is not justiceable. But the rights to have the ground & to make representation against it are secured by the Constitution & the obligations of 'as so on as may be' & earliest opportunity' in each are cast on the authority concerned. Enquiry about the time limitations is therefore, an important judicial function.
5. The portion of the Govt. reply relating to the past activities of the detenu reproduces the material part of the grounds of detention, which is as follows:
He is the brother-in-law of Theegla Satyanarayana, a dangerous underground leader of Manukota. Taluk, & he is acting as a spy to his brother in law. During the Police Action, he operated on the borders along with his brother-in law, & participated in many of the offences, He was one of those who were responsible for the murders in Khoosumanchi, for the Bus incident & a double murder of the Police Constables on. Pindipole Road. He is keeping a close touch with the underground Satyanarayana & supplying him the needs of his 'dalam'. He also supplied a cyclostyle machine for the hostile party.
Now, assertion in direct contradiction to the above statement has been made in the original application, & by another application of 7-12-1950, two certificates of responsible persons were filed to show that the detainee was a Congress primary member of his village Ravirala, & had no concern with the activities of Satyanarayana Rao. Then, the detenu, in his oral statement before us on 2 1-1951 has also denied the double murder of the Police Constables; but admitted Satyanarayana to be his brother in law & said that he did not know anything about him, nor had he supplied any Typewriting machine to him Thus, a clear issue has arisen in this case about the correctness of the ground & whether the Court of Law can entertain it. There is a decision of the Madras High Court reported in M. R. S Mani v. Dist. Magistrate Mathurai : AIR1950Mad162 , that the detenu cannot litigate facts & must accept them as disclosed by authorities. We thought it advisable having regard to the changed constitutional position to study the authorities afresh & form our own conclusions.
6. In dealing with the questions, we shall first refer to the English case of Liversidge v. Sir John Anderson (1942) A. c. 206. In this, the House of Lords had to construe the meaning of the phrase 'reasonable cause to believe' as used in Regulation 18 B of Defence (General) Regulations 1939 & these words were held to mean such cause of belief as the Secretary of State himself deemed to be reasonable. The Liversidge's decision arose out of a suit tiled by him for a declaration that his detention was unlawful & for damages for false imprisonment. He applied for particulars of the ground on which the Home Secretary had reasonable cause to believe that by reasons of such hostile association it was necessary to exercise control over him. The Judge in-Chambers & the Court of Appeal refused to grant the application & when the case came to the House of Lords, the decision of the Court of Appeal was affirmed, Lord Atkin dissenting. It was held that the Court could not compel the Secretary of State to give particulars of the grounds on which he had reasonable cause to believe the plff. to be a person of hostile association or that by reason of such hostile associations, it was necessary to exercise control over him. Viscount Maugham, the Lord Chancellor, gave four reasons for holding the satisfaction to be subjective & not justiciable, the second & the third of which are important & are as follows:
Secondly, it is admitted that the Home Secretary can act on hearsay & is not required to obtain any legal evidence in such a case, & clearly is not required to summon the person whom he proposes to detain & to hear his objections to the proposed order. Since the Home Secretary is not acting judicially, in such a case, it would be strange if his decision can bo questioned in a Court of Law.
Thirdly, & this is of even greater importance, it is obvious that in many eases he will be acting on information of the most confidential character, which could not be communicated to the person detained or disclosed is Court without the greatest risk of prejudicing the future efforts of the Secretary of State in this & like matters for the defence of the realm....It seems to me impossible for the Court to come to a conclusion adverce to the opinion of the Secretary of State in such a matter. It is beyond dispute that he can decline to disclose the in formation on which he has acted on the ground that, to do bo would be contrary to the public interest, & that this privilege of the Crown cannot be disputed.
Lord Macmillan in his agreeing speech observes:.But how could a Court of Law deal with the question whether there was reasonable cause to believe that it was necessary to exercise control over the person proposed to be detained, which is a matter of opinion &. policy, not of fact? A decision of this question can manifestly be taken by one who has both knowledge &. responsibility which no Court can share.
Lord Wright also concurring says:.No outsider's decision is invoked, nor is the issue within the competence of any Court .... He alone can have the materials for exercising the discretion, Like other discretions, it must involve some latitude of choice. There is no hard & fast issue of (act, such as there is in the trial of a specific charge on indictment.
Lord Romer in his speech gives similar reasons:.For, if the question whether the Secretary of State had reasonable grounds for the belief on which his order was founded is one for a Court of law 10 determine, it is plain that the Court must; be placed in full possession of all the relevant facts. & if some of those facts withheld from it, even though it he by reason of public policy, it will have no option but to say that no reasonable grounds for his belief had been shown to exist, & the release of the detained person will follow as a matter of course.
7. It is clear that in holding the satisfaction under the Regulation to be subjective, the thing which weighed most with, the majority of the House of Lords was the absence of jurisdiction in the Court of Law to compel disclosure of the material on which the mind was made. The reason will equally apply to all cases where the Courts of law are barred from compelling the authority directing detention to disclose facts. Although under Article 22, Clause (5) of the Constitution, rights of the detainee to have grounds & make representation against them are secured, yet by Clause (6) of the Article , the authority nuking the order is not required to disclose what he considers against public interest to disclose. The conferring of the rights has vested jurisdiction in Courts, yet the scope of judicial inquiry remains limited by the nature of the rights & by the privilege of nondisclosure.
7a. The case of Greene v. Secretary of State for Home Affairs (1942) A.C. 284, directly arose out of an application for a writ of habeas corpus. It was here held that the production of the Home Secretary's order of detention, the authenticity & good faith of which were not impugned, constituted a complete answer to an application by the appellant for a writ of habeas corpus; & no affidavit by the Home Secretary justifying his cause of belief was necessary. Viscount Maugham referring to the Divessidoe's case says:
Your Lordships there decided that the words, in the context in which they are found, refer simply to the belief of the Secretary of State....Your Lordships also do expressed the opinion that the Secretary of State could not be called on to disclose his information or grounds of belief if he took the view that it would be contrary to the public interest, to do so.
Then Lord Macmillan also observes:. The Secretary of State Is not bound to disclose or to justify to any Court the grounds on which he conceived himself to have reasonable cause to believe that the appellant was a person of hostile associations & that by reason thereof, it was necessary to exercise control over him, The result, in my opinion, is that the production of the Secretary of State's order, the authenticity & good faith of which is in no way impugned, constitutes a complete peremptory answer to the appellant's application.
After these two cases, the facts which the English Court could inquire into were facts relevant to the legality of the detention, e.g., the bona fides of the official, the genuineness of the detention order & identity of the applicant with the person named in the order. Indian Courts also have similar jurisdiction.
8. We shall now refer to the Privy Council case of Emperor v. Sibnath Banerjee A.I R. (32} 1945 P.C. 156, where powers under Rule 26 of the Defence of India Rules came to be construed. In this case their Lordships held that the presence of the recital in the order placed a different burden on the detenu to produce admissible evidence sufficient to establish a prima facie' case about the inaccuracy of the recitals. They also held the Court to have jurisdiction to investigate the validity of the detention under Rule 26 of Defence off India Rules. They further observed that the subsequent inaction of the Home Minister on submission of further material could not validate mere routine detection under Rule 26 of persons already detailed under Rule 129, as the direction on which they were made amounted to substitution of the Police recommendation in place of Govt. satisfaction. This case is an authority for the rule that if the officer did not apply his mind to the necessity or expediency of the detention order such an order is justiciable & the Courts of Law can inquire into :the fact.
8a. The case of Machindar Shivaji v The King A.I.R. (87) 1950 P.C 129, gives more comprehensively the jurisdiction of the Courts in matters of preventive detention. That case came in appeal to the Federal Court from an order of the High Court of Judicature at Naspur which has dismissed an application of the appellant under Section 491, Cri. P.C. for release from detention under Section 2, Sub-section (1)(a) of the C. P. & Berar Public Safety Act, 1948. At p. 130 of the report, their Lordships observe:. In the present ease, Section 2 (1)(a), like most other similar enactments, authorises the detention of any person if the Provincial Govt. is 'satisfied' that he is acting or is likely to act in a manner prejudicial so public safety order or tranquillity. The language clearly shows that the responsibility for making a detention order rests on the provincial executive... & it would be a serious derogation from that responsibility if the Court were 10 substitute its judgment for the satisfaction of the executive authority, &. to that end, undertake an investigation of the sufficiency of the materials on which such satisfaction was grounded. The Court can, however, examine the grounds disclosed by the Govt. to see if they are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public safety & tranquillity, for 'satisfaction' in this connection must be grounded on material which is of rationally probative value.
We have reached the stage of the law existing before the inauguration of the Constitution of India & broadly speaking the justiceable issues in the proceedings against the preventive detention were & still are the 'mala fides' of the authority, the failure of the detaining authority to satisfy his mind before exercising the power, or the satisfaction being grounded on material of no rationally probative value.
9. Coming now to the legal position after the inauguration of the Constitution & the passing of the Preventive Detention Act, we need refer only to the recent authority of the Supreme Court, The State of Bombay v. Atmaram Sridhar : 1951CriLJ373 . In the majority judgment which was delivered by his Lordship the Chief Justice of India, the constitutional rights of the detenu under Sub-article (5) of Article 22 have been summarised at P. 161 as follows:.The first part of Article 22(1)(5) gives a right to the detained person to be furnished with the grounds on which the order has been made' & that it has to be done 'as soon as may be'. The second right given to such person is of being afforded 'the earliest opportunity of making a representation against the order'. It is obvious that the grounds for making the order as mentioned above are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds, therefore, must be in existence when the order is made.
It may be noted that under the English Regulation the detainee had no such rights & the conferring of the rights by the Constitution entails judicial enquiries. Referring to the difference of the enquiry under each right his Lordship, the Chief Justice of India, at p. 163 observes:.Proceeding on the footing that there is some connection, i. e., the ground by itself is not so convincingly irrelevant & incapable of bringing about the satisfaction in any rational person, the question whether such ground can give rise to the satisfaction required for making the order is outside the scope of the enquiry of the Court. On the other hand, the question whether the vagueness or indefinite nature of the statement furnished to the detained person is such as to give him the earliest opportunity to make a representation to the authority is a matter within the jurisdiction of the Court's inquiry & subject to the Court's decision.
Then in the earlier part of his judgment at p 160, his Lordship referring to S 3, Preventive Detention Act, says:
According to the wording of Section 3, therefore, before the Govt. can pass an order of Preventive Detention, it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objections mentioned in the Section The wording of the Section thus clearly shows that it is the satisfaction of the Central Govt. or the; State Grovt. on the point which alone is necessary to be established .... The satisfaction of the Govt. however, must be made on some grounds. There can be no satisfaction if there are no grounds for the same.... If, therefore, the grounds on which it is stilted that the Central Govt. or the State Govt. was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained the question of satisfaction except on the ground of mala fides cannot be challenged in a Court of Law Such detention orders are passed on information & materials which may not be strictly admissible as evidence under the Evidence Act in a Court,, but which the law, taking into consideration, the needs & exigencies of administration has allowed to be considered sufficient for the subjective decision of the Govt.
10. It; should be noted that the reason for the limited scope of judicial inquiry under the first right is not different to that assigned by the House of Lords in the two English cases & the conferring of jurisdiction on Courts in this connection is limited by the privilege of refusing to disclose under Clause (6) of Article 22. We have seen the different issues which are hold justiciable in proceedings challenging the order under the Preventive Detention Act.
11. The correctness of statement relating to the past activities of the detenu is not concluded. (sic.) The reason for the exclusion is obvious for the satisfaction under Section 3, Preventive Detention Act, being subjective, no Court can substitute its opinion of the material for that of the authority, & thereby hold the satisfaction to bo wrongly reached. There is a difference between irrelevant ground & false ground. To make it false, consideration of facts is necessary, which means possession of facts which means the jurisdiction to compel production & such powers cannot be exercised in view of Article 22, Clause (6 of the Constitution of India. The Court of Law, therefore, cannot adjudicate on the question of the correctness of the statement because full possession of all the facts is impossible. The observations, therefore, of the Division Bench of the Madras High Court, in A.I.R. (37) 190 Mad. 162 that the correctness of the statement cannot be challenged by detenu in a Court of Law appears to be correct. On principle & after the examination of the above authorities wo entirely agree with that observation.
12. In the particular case, the detenu has challenged the statement contained in the grounds by filing certificates of persons to show that he had no concern with the hostile leader, &, his activities are tot prejudicial. These statements are in direct contradiction to those in the grounds By use of the words 'must be satisfied' in Section 3, Preventive Detention Act, the Parliament has shown the intention of the satisfaction to be subjection & we cannot hold the satisfaction to be wrong as based on evidence which we consider to be false. This is not a case of there being no probative material but rather of the material being false. We, therefore, hold that the correctness of the statement contained in the grounds of detention in the circumstances of the case cannot be inquired into.
13. We now come to the second question in the case, i.e., of vagueness. In the case of the Supreme Court already referred to, it has been held that a detainee has been given two rights & the second right is of being afforded the earliest opportunity of making a representation against the order. Then at p. 164, His Lordship observes: .The contention that the grounds are vague requires some clarification ....Vague can be considered as the antonym of 'definite'. If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague .... It must vary according to the circumstances of the case. It is, however, improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it.... If on reading the ground furnished it is capable of being intelligently understood & is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention, it cannot be called vague.
Applying the above test to the facts of the case, the ground is certainly capable & has been intelligently understood by the detenu & the applicant has procured certificates to contradict its statement. The material furnished is also not insufficient & the detenu in making representation to the authority concerned has not complained about it. In these circumstances, it cannot be hold to be vague. That is our decision on the second question.
14. In the right to have the grounds of detention to the persons preventively detained, Article 22, Clause (5) says that the grounds should be supplied 'as soon as may be'. The phrase, however, does not exclude reasonable time for formulating the grounds on the material in the possession of the authority. The time must necessarily vary with the activities of the person & the other circumstances of the case. It is, therefore, a question of fact in each case whether there has been delay. In the Full Bench case of In re Pandurang Kashinath More : AIR1951Bom30 , the learned Chief Justice observes:.But the time taken for the furnishing of the grounds must be ft reasonable time, reasonable in the circumstances of each case, & therefore when the Court has to consider on any particular application as to whether the time taken by the authority in furnishing the grounds was reasonable or not, the Court must look to the particular circumstances of the case before it. It is impossible to lay downs definite & unchangeable yardstick by which the Court must judge as to whether the time taken in a particular case was reasonable or not.
In the particular case, there has been delay of several months. In the reply of the Govt., it is urged that they had to formulate grounds in nearly four thousand oases. Under the previous Hyderabad Regulation no such right was given & the statement of reason has not been challenged. Having regard to the statement as to the prevailing circumstances at the time of the passing of the Preventive Detention Act, we hold that there is no delay in the case.
15. Those are the three questions arising in this Full Bench case & in view of the fact that our opinion on all the three are against the applicant, we dismiss the application for issuing writ of habeas corpus.