1. These petitions under Section 491 of the Code of Criminal Procedure read with Article 226 of the Constitution of India challenging the validity of the orders dated 1st of August, 1965, which are similar in nature and passed by the Government of India under Rule 30, Sub--rule (1), Clause (b) of the Defence of India Rules, 1962, raise common questions of law and facts and can be conveniently disposed of together.
2 The undisputed facts which are relevant to the questions in controversy are stated briefly.
3. The petitioners are active members of tile Communist Party in India. They were first arrested and detained in various jails in the State of Uttar Pradesh in pursuance of the orders passed in the name of Governor of Uttar Pradesh under Rule 30(1)(b) of the Defence of India Rules. In the case of some of these petitioners the order of detention was reviewed by the authorities and their detention was continued.
4. A number of writ petitions were filed in this Court challenging the orders of detention passed by the State Government under the Defence of India Rules inter alia on the assertionsthat the State Government was not satisfied about the requirements of the detention orders. One of such petitions filed by one Sri Tegh Bahadur Singh came up for hearing before the Court on 26-7-1965 and Sri B. B. Joshi, Home Secretary and Sri R. K. Kaul, Deputy Home Secretary who had filed affidavits saying that the Chief Minister of U. P. was satisfied about the requirements of the detention order passed by the State Government, were summoned for examination.
5. On 31st of July, 1965, the State Government cancelled' its order of detention relating to these petitioners. On the 1st of August, 1965, however, the impugned orders were passed by the Central Government directing the detention of the petitioners which were served on them and since then they are in detention.
6. There is some controversy between the parties as to whether these orders were served while the petitioners were already in jail in pursuance to the orders of the State Government or when they had been released after their cancellation. It is, however, obvious from the assertions made in the counter-affidavit filed on behalf of the respective opposite party No. 1 in each of these petitions that even if the order of the Central Government was not served on the petitioners while they were in jail custody it was served within a few minutes of their release and they were re-arrested and put back in jail.
7. Although in these petitions the validity of the orders of detention has been challenged on several grounds only a few of them have been canvassed at the bar.
8. Mr. Asif Ansari learned counsel for the petitioners has raised the following points in support of these petitions.
9. Firstly that the impugned orders did not fall within the ambit of Rule 30(1)(b) of the Defence of India Rules and as such are ultra vires of the detaining authority.
10. Secondly that the detaining authority did not apply its mind to all the grounds of detention mentioned in the order and it had passed it in a mechanical manner.
11. Thirdly that from the averments made in the counter affidavit filed by Sri T. P. Issar, Under Secretary to Government of India, it is obvious that there was no material before the detaining authority to show that the detention of the petitioners was necessary for preventing them from acting in any manner prejudicial to the public safety and maintenance of public order and that nothing was taken into account in regard to those grounds Learned counsel contends that it was riot possible therefore for the detaining authority to have come to a subjective satisfaction on those two grounds and the detention orders in these circumstances are not sustainable in law.
12. Lastly it has been urged that the order in each case is mala fide having been passed on extraneous considerations for preventing the petitioners from carrying on their legitimate political activities, an allegation which has been denied in the counter-affidavit filed on behalf of the Union of India.
13. Mr. H. N. Seth, learned Standing Counsel for the Central Government, has however, urged that as the order of detention in each case on the very face of it shows that it is based on considerations provided under the rule namely for preventing the petitioners from acting in any manner prejudicial to the defence of India and civil defence, the public safety and the maintenance of public order, it must be held that the order was based on relevant considerations irrespective of the fact that in the counter affidavit filed on behalf of the Central Government it has been asserted that it was with a view 'to preventing the petitioners from acting in a manner prejudicial to the defence of India and civil defence, public order' that they had been detained. Learned counsel contends that for determining the question of the validity of the order in this regard it is the order itself which should be taken into account and not the averments made in the counter-affidavit in explaining the reasons for the issue of that order.
It is contended that as the impugned orders are based on the subjective satisfaction or the detaining authority on relevant considerations mentioned in the order it is not open to the Court to go behind the terms of the order to investigate the sufficiency or otherwise of the grounds and reasons for the order. Learned counsel contends that the term 'public order' is of a wide connotation which includes public safety as well within its ambit and any activity which is prejudicial to the public order must necessarily be prejudicial to the maintenance of public safety as well as to the maintenance of public order and therefore the averments made in the counter affidavit must be interpreted to mean that the petitioners had been detained for preventing them from acting in any manner prejudicial to defence of India and civil defence, the public safety and maintenance of public order as provided under Rule 30(1)(b) of the Defence of India Rules.
14. The order of the Central Government reads:
''Whereas the Central Government is satisfied that with a view to preventing Shri son ofSri from acting in any manner prejudicial to the defence of India and civil defence,the public safety and the maintenance of publicorder, it is necessary to make the followingorder;
Now, therefore, in exercise of the powers conferred by Clause (b) of Sub--rule (1) of Rule 30 of the Defence of India Rules, 1962, the Central Government hereby directs that the said Shri
By order and in the name of thePresident.
Sd/- T. P. Issar,
Under Secretary to Government of India.
the 1st August, 1965.'
15. It will be noticed that the impugned order is in terms of the rules. Sri T. P. Issar, Under Secretary to the Government of India, who has authenticated the order, in his counter affidavit filed on behalf of the Central Governmenthas, however, categorically averred that 'on the material placed before the Central Government, the Central Government was satisfied that with a view to preventing the petitioners from acting in a manner prejudicial to the defence of India and civil defence, public order it was necessary to detain the petitioner.' It is on these averments that the learned counsel for the petitioner has based his argument that some of the considerations on which the impugned orders are based are foreign to the scope of Rule 30(1)(b) of the Defence of India Rules and that there was no material before the detaining authority on the basis of which it could arrive at a subjective satisfaction that it was necessary to detain the petitioners for preventing them from acting in a manner prejudicial to the 'public safety' and the maintenance of public order.
16. In Petitions Nos. 2579 to 2581 of 1965 after the conclusion of arguments on behalf of the petitioners, supplementary affidavits were filed on behalf of the Central Government but in the circumstances of these cases, we have not thought it expedient in the interest of justice to take them into consideration for the determination of the questions in controversy.
17. In order to examine the contentions raised by the learned counsel for the parties it is necessary to notice the relevant provisions of the Defence of India Act, 1962, and the Rules.
18. The relevant portion o? Section 3(1) of the Defence of India Act reads:
'The Central Government may, by notification in the official Gazette, make such rules as appear to it necessary or expedient for securing defence of India and civil defence, the public safety, the maintenance of public order or .....
19. Sub-section (2) of Section 3 inter alia provides that without prejudice to the generality of the powers conferred by Sub-section (1) the rules may provide for, and may empower any authority to make orders providing for the 'apprehension and detention in custody of any person with respect to whom the authority empowered by the rules to apprehend or detain' is satisfied that his apprehension and detain on are necessary for the purpose of preventing him from acting in a manner prejudicial to the defence of India and civil defence, the public safety or interest, the maintenance of public order.
20. Rule 30(1) of the Defence of India Rules reads:
'The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order. . . it is necessary so to do, may make an order
(b) directing that he be detained.'
21. It will be noticed that both in the Act and in the Rules public safety and maintenance of public order have been given in juxtaposition and it is the satisfaction of the detaining authority for preventing an activity prejudicial to the maintenance of public order and not to the public order as such which has been made a ground for an order of preventive detention.
22. It is no doubt true that 'public order' is a term of wide connotation having various facets and different hues. In its widest amplitude it may include public safety and public morality as well within its ambit. But the juxtaposition of different grounds given in the Act and Rules makes it obvious that although public safety may sometimes be included in public order the Legislature intended to exclude the same from its ambit for the purpose of the Act and the Rules. It is also obvious that by repeatedly mentioning that it is only the activity prejudicial to the maintenance of public order which can be one of the grounds for an order of detention the Legislature has taken care to provide that it is not every activity which is prejudicial to the public order which can be a ground for detention but only such activities which are prejudicial to its maintenance. It is obvious that there may be activities limited in character and intensity which though prejudicial to the public order may not amount to a challenge to the maintenance of public order. The difference is only of degree but it is a real difference and it is the activity of the last category alone which can give a jurisdiction under the Act and the Rules for passing a detention order.
23. In the case of Supdt. Central Prison Fatehgarh v. Dr. Ram Manohar Lohia : 1960CriLJ1002 while discussing the concept of public order as occurring in Article 19(2) of the Constitution it was observed by the Supreme Court that 'all the grounds mentioned therein can be brought under the general head 'public order' in its most comprehensive sense. But the juxtaposition of different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other. 'Public order is, therefore, something which is demarcated from the others.' It must therefore be held that public safety as mentioned in Rule 30(1) of the Defence of India Rules must be held to be demarcated from the other grounds namely that of defence of India, civil defence, and maintenance of public order.
24. The concept of an activity prejudicial to the public order is in certain circumstances entirely different with one prejudicial to the maintenance of public order. This is the reason why the history of the preventive detention in this country shows that the Legislature has always taken the two concepts in different categories and it is for the latter that power had been vested in executive authorities for preventive detention.
25. Government of India Act, 1935, Schedule VII, List 2, Provincial Legislative List, Item 1, provides that the Provincial Legislature shall have a power to make laws for a province in respect of public order and also for 'preventive detention for reasons connected with the maintenance of public order. Thus the Act has made a distinction between the public order and the maintenance of public order.
26. Constitution of India, Schedule VII, List II, State List, includes public order as Item No. 1 and in List III Concurrent List Item No. 3 mentions preventive detention for reasons connected with ..... the maintenance of public order.
27. In Rex v. Basdeva, AIR 1950 FC 87 paragraph 7 while dealing with the vires of U. P. Prevention of Black Marketing Act in the light of Government of India Act (1935) Section 100 and Schedule VII, List II, entry No. 1 it was observed by Patanjali Shastri Justice that 'it is true that black marketing in essential commodities may at times lead to a disturbance of public order, but so may, for example the rash driving of an automobile or the sale of adulterated food stuffs. Activities such as these are so remote in the chain of relation to the maintenance of public order that preventive detention on account of them cannot, in our opinion, fall within the purview of Entry I of list II. Preventive detention is a serious invasion of personal liberty and the power to make laws with respect to it is, in the case of Provincial Legislature, strictly limited by the condition that such detention must be for reasons connected with the maintenance of public order.'
28. Rule 26 of the Defence of India Rules 1939, also provided that it was an activity prejudicial to the maintenance of public order which could be a ground for preventive detention and not an activity prejudicial to the public order,
29. In the case of Ramji Lal Modi v. State of U. P. : 1957CriLJ1006 it was observed :
'It will be noticed that the language employed in the amended clause is 'in the interests of' and not 'for the maintenance of' . . . The expression 'in the interests of' makes the ambit of the protection very wide. A law may not have been designed to directly maintaingublic order and yet it may have been enacted in the interest of public order.'
30. The same principle was reiterated in the case of Virendra v. State of Punjab : 1SCR308 .
31. In Purshottam Trikam Das v. Emperor, AIR 1946 Bom 333 a Division Bench of the Bombay High Court consisting of Sen and Gajendragadkar, JJ. observed :--
'The difficult position in which a detenu is placed in such circumstances, therefore, makes It incumbent on the authority directing the detention to apply all possible care and attention to the materials placed before it before making the order of detention; and even a slight error or evidence of carelessness would tend to show that the necessary amount of care and attention had not been bestowed in the examination and consideration of such materials by such authority and where possibly two interpretations can be put on the order under which a person applying under Section 491 is detained, the Court should be inclined to give preference to the interpretation which is in the applicants favour.'
32. In Dr. Ram Manohar Lohia v. State of Bihar, Writ Petn. No. : 1966CriLJ608 . Sarkar, J. of Supreme Court observed:
'It is common place that words in a statutory provision take their meaning from the context in which they are used. The context in the present case is the emergent situation created by external aggression. If would, therefore, belegitimate to hold that by maintenance of public order what was meant was prevention of disorder of a grave nature.'
'We are dealing with a statute which drastically interferes with the personal liberty of people, we are dealing with an order behind the face of which a court is prevented from going It would be legitimate to require in such cases strict observance of the rules and if there is any doubt whether the rules have been strictly observed that doubt must be resolved in favour of the detenu. It is certainly more than doubtful whether law and order means the same as public order.'
33. In the same case while discussing the question as to whether law and order is included in 'Public order' as envisaged in Rule 30(1)(b) of the Defence of India Rules it was observed :
'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 State. It is then easy to see that an act may affect law & 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.'
34. In the light of the aforesaid judicial pronouncements it must be held that only such activities prejudicial to the public order, which, on account of their character and magnitude are likely to jeopardise the maintenance of public order shall form a valid ground for preventive detention and not every activity prejudicial to public order.
35. The contention of the learned counsel for Central Government that as the order as such is in terms of the rules its legality cannot be tested in the light of the averments made in the counter affidavit is not of any substance. It is true that the satisfaction of the detaining authority cannot be subjected to an objective test and an order proper on its face should be taken as such for the purpose of deciding such petitions. But where the evidence filed on behalf of the detaining authority in support of the impugned order itself shows that the relevant considerations were not before it when the order was passed such evidence cannot be ignored.
36. In the case of Emperor v. Sibnath Banerji in which the validity of an order of preventive detention passed under Rule 26 of the Defence of India Rules, 1939, was under challenge the Privy Council took into account the averments made in the affidavit of Mr. Porter, Additional Home Secretary to the Bengal Government, for holding that impugned order although in accordance with the rules on the face of it had been passed mechanically without considering the materials to justify the issue of an order.
37. It is, therefore, obvious that the averments made in the counter affidavit by Mr. T. P. Issar who has also signed the impugned orders on behalf of the Central Government must be taken into account to determine the validity of these orders.
38. As a result of the aforesaid discussion the position which emerges is that there was no material before the detaining authority for arriving at a subjective satisfaction that it was necessary to detain the petitioners for preventing them from acting in any manner prejudicial to the public safety and the maintenance of public order and thus two of the grounds on which the impugned orders are based were non-existent at the time they were passed by the Central Government. The detention order mentions one other ground also namely the defence of India and civil defence which is clearly within the rule and had it been based on that ground alone the order would have been a perfectly legal order. But where the order of detention is based on several grounds out of which some proved to be illusory the entire order must be held to be illegal as was held in Shibban Lal Saksena v. State of U. P., : 1SCR418 . The same principle was reiterated in Dr. Lohia's case Writ Petn. No. : 1966CriLJ608 (Supra) and it was held that an order would be a bad order the reasons being that it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of a subjective satisfaction which formed the basis of the order.
39. In the result we hold that the impugned orders are beyond the scope of the Rule. In view of this conclusion, it is not necessary to examine the other contentions raised on behalf of the petitioners.
40. Accordingly we allow these petitionsand direct that the petitioners be set at libertyforthwith.