Under Section 3(1)(a)(ii) of the Maintenance of Internal Security Act, 1971, I. T. V. Anand Kumar, I. A. S., District Magistrate, Nizamabad order that Sri Shaik Meera s/o Sri Shaik Salar R/o Dichpalli who has been ordered to be detained under Section 3(1)(a)(ii) of the Maintenance of Internal Security Act, 1971 shall be detained in the Central Jail, Hyderabad. He shall be treated as Class 'C' Detenu.
2. The reasons in resisting the Writ Petition urge though the order ex facie does not disclose reasons yet the order is not void as the District Magistrate has power to pass such an order. In answer to the plea that no grounds are stated even before us in their counter it is contended the proclamation of the President under Article 352 of the Constitution of India in 1971 in June, 1975, and the provisions of the Maintenance of Internal Security Act, Act 26 of 1971 enable them to be laconic. The respondents it is argued are not obliged in law to state reasons and reliance is placed on the dicta in Habeas Corpus case reported in A. D. M. Jabalpur v. S. Shukla : 1976CriLJ945 .
3. Before we proceed we wish to clear one aspect of the ground which arises in the question at issue. The power vested in the authorities to classify the detenus and the classification of detenus by the Government Under Section 5 of the Act 26 of 1971 in A, B and C categories per se is no more res integra. The learned Public Prosecutor for the State Government stated that question was held in favour of the respondents by this Court in three judgments in W. P. No. 1822 of 1976 (D/- 16-6-1976) (Andh Pra), W. P. No, 1598 of 1976 and batch (D/. 29-6-1976) (Andh Pra) and W. P. No. 1837 of 1976 and batch (D/- 5-7-1976) (Andh Pra). The only narrow question debated and is to be decided is the order of classification by the District Magistrate, Nizamabad to treat the petitioner as C Class detenu without reasons, whether such an order is a legal order, whether the order is not arbitrary and void for that reason. The respondents have not questioned the maintainability of the Writ Petition before us.
4. The genesis of the classification of detenus in A, B and C is related to the power of the State Government to regulate 'place and conditions of detention under Act 26 of 1971. The State of Andhra Pradesh classified all Members of the State Legislature and Members of the Parliament as falling in the category of A. The detenus who have acted in a manner prejudicial to the maintenance of supply and services' essential to the community fall in the category of C while others fall under the residuary category of B. The State Government reserved in them the right to downgrade a detenu falling in category A to be graded in lower categories either by general order or by a special order. Similar power has been reserved in the detaining authority affecting those who fall under category C. The relevant portions are extracted here under:
All detenus who are members of State Legislature or Parliament and such other detenus as the Government may by general or special order include in this class.
All other detenus except those placed under 'Class A' or Class 'C',
All detenus who are detained for acting in a manner prejudicial to the maintenance of supplies and services essential to the community and such other detenus as the detaining authority may by a special order indicate.
5. The order by which the petitioner is detained shows he is detained for prejudicial acts which are detrimental to the security of the State or the maintenance of public order. Supplies clause is not the clause under which the petitioner is detained. Thus the petitioner under the rules ordinarily is to be treated as category B detenu.
6. The impugned special order is bald and does not speak why he is to be downgraded for treatment. Should it not state so and give reasons is the question. To the petitioner the matter is so vital that with the special order a sitting chair, a camp cot, a mattress, a cloth stand, clothing of the value of Rs. 45/, for every six months pocket money of Rs. 5/- per month and ration of the value of Rs. 4.50 a day all these he is deprived. He cannot get these basic requirements in prison adds poignancy to the question raised. None of these necessities are provided to the detenus in Class C category. The detenus in 'C' are treated on par with those who are sentenced to undergo imprisonment. We cannot refrain from stating that a person detained in no respect is similar to a person imprisoned. That question slightly traverses beyond what falls in the instant case for determination. To deprive a detenu such basic amenities as clothing, cloth stand, his ration of the value of Rs. 4.50 a day and pocket money of Rs. 5/- a month in prison we hold before the detenu is deprived valid reasons must be shown as to why he is deprived. We are bound to ask the respondents as to why by special order the petitioner is deprived. The learned Public Prosecutor heavily relied on the ratio decidendi in the Habeas Corpus case 1976 Cri LJ 945 (SC) and said that case is a complete answer to the question raised. The Public Prosecutor argued the rights of the detenu during the days when the President proclaims emergency, are fleeting and ephemeral. No duty is cast on the respondents to inform the detained as to why he is detained and the respondents are not obliged to state as to why he is categorised as 'C'. We cannot agree, To those who are nurtured in common law and to us who are used to the concept of rule of law and the workings of that rule in this Republic we associate in the protest expressed in the speech of Lord Upjohn J. in the case of Padfield v. Min. of Agriculture etc. 1968 (1) All ER 694 and respectfully adopt the following as our reasoning for the decision.
a public officer charged by Parliament with the discharge of a public discretion affecting Her Majestry's subjects; if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and directing a prerogative order to issue accordingly. The Minister in my opinion has not given a single valid reason for refusing to order an inquiry into the legitimate complaint (be it well founded or not), of the South east region; all his disclosed reasons for refusing to do so are bad in law.
7. This view of the law which is as old as hills is in no way eroded by the decision in the Habeas Corpus case. The discretion vested in respondents to classify in categories and the order of 'treatment' should always be exercised on 'sound discretion guided by law' and 'governed by the rule' as Lord Mansfield said some two hundred years ago in the locus classicus case of John Wilkes (1770) 4 Burr 2528 at p. 2539 'not by humour: it must not be arbitrary, vague and fanciful'. That observation was approved by the Supreme Court in the case in Jaisinghani v. Union of India (UOI) : 65ITR34(SC) . Referring to similar classification of detenus a Division Bench in Madhya Pradesh took the same view as we have indicated above. (M. L. Pande v. District Magistrate, Shajapur : AIR1977MP37 ).
8. The learned Public Prosecutor relied on P. L. Dholakia v. C. T. A. Pillai 1976 Cri LJ 1813 (All) a case from Allahabad High Court under COFEPOSA Act in support of his contention. That enactment contains different provisions declaring a different malaise existing in the country. The reasoning in that case cannot stand as analogy. The case in Thampan Thomas v. State : AIR1976Ker94 a case which the respondents have relied on arose out of Maintenance of Internal Security Act where a contrary view is taken by the Kerala High Court. The learned Judge relied on the reasoning of the decision in O. P. No. 590 of 1975 where full reasons were recorded. The learned Judge observed the reasoning in O. P. No. 590 of 1975 'governed the principle in the case on hand.' Thus we know not the reasoning in the unreported judgment.
9. In the end the learned Public Prosecutor argued that the petitioner has an effective remedy and should approach the Government under Rule 20 of the Andhra Pradesh Preventive Detention (Regulation of Place and Conditions) Order, 1969 for relief and we should not interfere with the order of the District Magistrate, Rule 20 of the said order is as under:
(1) The Superintendent shall forward, without delay, through the Inspector-General of Prisons, and with such observations as ha may think fit, any representation which a detenu may submit to the Government. He may withhold any representation which contains any reference to other detenus or prisoners.
(2) All petitions from detenus addressed to courts shall be transmitted, with the utmost expedition direct to the court concerned forwarding copies thereof to the Inspector-General of Prisons. When a petition is addressed to the High Court, it shall be sent to the Registrar, High Court, Hyderabad in a sealed envelope, a copy of which shall be endorsed to the Inspector General of Prisons who shall forward a copy of such petition to the Government.
10. The above rule contemplates a 'representation' to the Government by a detenu. That right against an order without reasons reminds us what Justice Sudhiranjan Das as he then was in Supreme Court had said (1957) in the context of a vain administrative appeal as an appeal from 'Caesar to Caesar'. An order which does not speak it has the face of inscrutable sphinx and we consider to exercise such a right of appeal against such an order is a vain exercise. Therefore we consider Rule 20 is hardly a remedy to the petitioner in such circumstances.
11. The 'Special order' of the District Magistrate, therefore, is quashed and set aside. The petitioner be treated as B category detenu.
12. The writ petition is allowed. No costs. Advocate's fee Rs. 250/-.