Jagannadha Das, C.J.
1. This is a proceeding in contempt against Sri Somanath. Mohapatra, I.A.S., Secretary to the Government of Orissa, Home Department. The circumstances under which this proceeding was initiated have been started in our judgment in -- 'Shyamaghana Ray v. State', Cr. Misc. Nos. 195, 196, 200, 202, 204, and 207 of 1951, dated 26th February 1952, and need not be recapitulated in detail. Briefly stated, they are as follows : One Govind Pradhan was under detention by an order of the local Government the validity of which was challenged before this court. This Court by its order dated 26th November 1951, directed his release. On the 27th November 1951, another order of detention enuring for three months, that is till the 27th February 1952, was passed by the District Magistrate, Ganjam. Having been re-arrested thereunder, he applied to this Court again challenging the validity of the fresh order of detention. That application which was Cr. Misc. Petn. No. 189/51, was heard by this Court on 5-12-51, and judgment was reserved on that date. It was delivered on 13-12-51 at about 10-30 a.m. when the Court commenced its sittings for the day. At the time when that judgment was delivered, a press report of a decision given by the Supreme Court which was said to have a bearing on the validity of the order of detention, with reference to a formal defect therein, not argued before us at the hearing of the application, was brought to our notice. Consequently, while dismissing the application, we reserved liberty to the applicant to come up with another application on that ground, if he considered it necessary on getting an authorised copy of the judgment of the Supreme Court. It happened, however, that the Court itself received a certified copy of the said judgment of the Supreme Court in -- 'Makhan Singh Tarsikka v. State of Punjab', (AIR 1952 S C 27) in the course of that very day. The Court accordingly sent for the advocates on both sides at about 2 p.m. when it reassembled after the midday interval, and passed on the judgment to them for their perusal. Thereupon, a fresh application was made on behalf of the detenu challenging the legality of the detention order of the District Magistrate dated 27th November 1951, on account of the formal defect therein, viz., that the initial order of detention itself fixed the period of detention as three months, before the sufficiency of the cause for detention was referred to the Advisory Board and their report thereon was received, a procedure which has been held to be illegal and to be by itself sufficient to invalidate the legality of the detention, by the Supreme Court in its latest judgment whose certified copy was just then received. This application was moved before us on that very date, that is, on 13-12-51, at about 4 p.m. when the court was about to rise for the day. The application was numbered as Cr. Misc. Petn. No. 195/51 and the Court thereupon passed the following order dated 13-12-51:
'Presented in Court. This petition will be taken as admitted, and will come up for final hearing tomorrow. The Government Advocate has received notice in Court.'
It was brought to the notice of the Court during the further stages of the hearing of this fresh application that on that very date, that is, on 13-12-51, the prior order of detention dated 27-11-51 was revoked and that a fresh or'der of detention dated 13-12-51 was passed. The detenu when he came to know about it, filed another application dated 17-12-51 challenging the validity of this fresh order, as having been made mala fide. This fresh application was numbered as Cr. Misc. Petn. 202/ 51. Both the applications, viz., Cr. Misc. No. 195 and 202 of 1951, were taken up together and were adjourned from time to time. They came up for final hearing only in February 1952, and we passed an order dated 26th February 1952, holding that the fresh order of detention passed on 13th December 1951, was illegal and invalid. The mala fides of both the prior orders of detention dated 26-11-51 and 13-12-51 was alleged on the ground that the detention of the applicant therein, viz., Sri Govind Pradhan who was a validly nominated candidate for elections to the State Legislative Assembly then in progress, was motivated by the ulterior purpose of depriving him of the facilities for work connected, lest he should become a powerful rival for the candidate set up for the same constituency by the party-in-power. It may be mentioned that during the pendency of the hearing of those applications, the detenu was released by this Court on bail and that he has in fact been returned to the State Legislative Assembly defeating his rivals. The State Government however denied that the orders of detention were made for any such ulterior purpose.
So far as the order of detention of the District Magistrate, Ganjam, dated 26-11-51 is concerned, we held by our judgment in Cr. Misc. petn. 189/51 delivered on 13-12-52 that the detenu had not discharged the burden which lies on. him of making out the alleged ulterior motive. During the course of the hearing of the Cr. Misc. petitions Nos. 195 and 202, however another very important fact came to light, viz., that the Chief Minister, who was ordinarily charged with the function and responsibility of dealing with the cases relating to detention was, not in fact present at Cuttack, on the 13th of December 1951, and that the order of detention of that date whose validity was challenged in Cr. Misc. Petition No. 202/51, was passed not by the Chief Minister, but by the Home Secretary, Sri Somanath Mohapatra. At the hearing of the above applications, it was strenuously contended before us that the Secretary had the power to pass the order, but we overruled that contention and held that the order was patently illegal. The Court accordingly initiated the present proceeding in contempt against the Home Secretary (who, hereinafter will be referred to as the opposite party) & issued a notice against him to show cause. On receipt of the said? notice, appearance was entered for him, and there was a preliminary hearing at which we directed a rule nisi to issue on 3-3-52. The opposite party filed thereafter his answer thereto by means of an affidavit dated 29-3-52 in which he stated as follows :
'That I was served with a notice by the Hon'ble High Court on 27-2-52 that in course of hearing of the Criminal Misc. Cases Nos. 195, 196, 200, 202, 204, and 207 of 1951 under Article 226 of the Constitution and Section 491 of the Cr. P. C. on behalf of Govind Pradhan and others against the State it had been brought to the notice of the Court that during the pendency of the Cr. Misc. case No. 195 of 1951, arising out of an order of detention dated 27-11-51 passed by the District Magistrate, Ganjam, and in anticipation of the orders of this Court in the said Cr. Misc. cases I, as Home Secretary passed a patently illegal order of detention on 13-12-51 against Govind Pradhan and thereby committed contempt of Court as per observations-of the judgment in the aforesaid cases, a copy of which was sent with the notice.
2. That I had no intention of flouting the orders of the High Court.
3. That when I made the order dated 13-12-51, I was under the bona fide impression that I was entitled to do so under the law and the Rules of business.
4. That at the time of my passing the said order I did not know that a petition had been filed on the 13th December 1951, nor had I seen the judgment delivered by the Hon'ble High Court on that date in Cr. Misc. case No. 189/51.
5. That I have not committed any contempt of this Hon'ble Court and had never any intention of committing any.
6. That to the best of my knowledge and belief no proceeding was actually pending in the Court by the time I passed the fresh detention order against Govind Pradhan 7. That my action complained against was bona fide, was done in good faith and without any knowledge and in ignorance of the pendency, if any, of any proceeding in Cr. Misc. Case No. 195 of 1951 in this Hon'ble Court by the time I passed a fresh order of detention'.
2. The assumptions on which the proceedings for contempt were started against the opposite party, as appears from the notice to show cause (as amended) is that when the validity of an order of detention is pending consideration by the High Court, a fresh but illegal order of detention on revocation of the prior order, would amount to contempt of Court and that this would be equally so, if that fresh order was passed, not during the actual pendency of an application questioning the prior detention, but in anticipation of such an application being made by the detenu. At the hearing before us, the correctness of these assumptions has been challenged on various grounds, viz., (1) Our previous order in Cr. Misc. Cases Nos. 195 and 202 of 1951, pronouncing the order of detention passed by the opposite party on 13-12-51 as illegal, is erroneous: (2) The passing of a fresh order of detention during the pendency of an application questioning the prior order of detention cannot constitute contempt of Court, even though it happened to be an illegal order: (3) As a fact, the order of detention passed by the opposite party on 13-12-51, was not passed during any such pendency, or with the knowledge of the imminence of another application to be made questioning the validity thereof : (4) The said order of the opposite party was entirely bona fide.
3. We have heard fairly elaborate arguments on points (1) and (2) above stated, from Sri S. M. Bose, learned senior counsel, who appeared on the final hearing of this application. On the 2nd day of the arguments before us, learned counsel sought our permission to file a fresh affidavit of the opposite party clarifying the circumstances under which the order in question came to be actually passed, with an offer to submit the deponent for cross-examination, on his affidavit, if the Court thought it necessary. Permission having been granted, a second affidavit dated 21-8-52 of the opposite party has been filed into Court. That affidavit is as follows:
'Affidavit filed by the opposite party named above most respectfully sheweth :
On the 8th December, 1951, I received the following communication from Sri Porus A. Mehta, Govt. Agent, Ministry of Law, New Delhi.
Govt. of India
Ministry of Law, etc.
From Porus A. Mehta, Esquire,
Govt. Agent, Ministry of Law, New Delhi.
The Secretary to the Govt. of Orissa, Home Dept. Cuttack.
Subject: Supreme Court Petitions Nos. 465 and 552 of 1951.
Arun Biswal and Upendra Pasa
The State of Orissa.
The above petitions came up for hearing before the Supreme Court along with another petition from Punjab where the detention orders initially stated a period of detention as in the case of the Orissa Detention orders. The Court was of the view that under the Preventive Detention Act as amended, orders of detention must not initiate the period but could only do so after the State Govt. confirms the order of detention under Section 11 of the Act. I have already sent you a telegram to the following effect:
'Detenues Arun Biswal and Upendra Pasa ordered to be released forthwith on the ground (sic) that original order till March 1952.' It seems to me that there must be a large number of detenus detained in your State whose detentions will become bad fay reason of this order. I would, therefore, advise you before they file any petitions for habeas corpus to cancel their orders of detention and serve fresh orders in which you should not give any date. Thereafter proper grounds should be served on the detenus immediately, giving them proper particulars and after they make representations if the Advisory Board is of the opinion that the detention is justified, the State Govt. can make an order fixing a period of detention. Care must be taken to see that this is done promptly before any petitions for habeas corpus are filed.
Sd/- Porus A. Mehta.
As advised in this letter, all cases of detention, wherein periods of detention were mentioned were reviewed by me. In six such cases I revoked the defective orders of detention and ordered issue of fresh orders of detention on 8th December 1951. These were actually issued on 8th December 1951. No orders were passed then in the case under consideration as a Habeas Corpus application was pending.
As the Chief Minister was away from Headquarters on 8th and 13th December 1951, and as these matters were urgent. I passed the detention orders myself according to general practice.
As a matter of policy the Chief Minister had approved of the detention of Sri Govind Pradhan and some others, and the grounds of detention.
I passed fresh orders of detention on 8th and 13th December 1951, to cure the technical defects in the original orders.
Secretaries to Govt. passed similar orders without the prior approval of the minister-in-charge of Home Department which was taken afterwards, e.g., (a) Detention order made by Addl. Secretary to Govt. Home (Political) Department on 26-8-1949. (b) Detention order made by Addl. Secretary to Govt. Home (Political) Department on 25-8-49. (c) Detention order made by the Chief Secretary to Govt. (as Secretary to Govt. Home Department) on 13-11-50.
Sd/- Somanath Mohapatra.'
In the light of the facts disclosed in the 2nd affidavit which we see no reason to disbelieve, the whole matter now under consideration, assumes quite a different complexion.
4. We may as well notice at this stage that the 1st affidavit filed by the opposite party on 29-3-52 was extremely vague and did not furnish any factual details which would have enabled the Court to judge the circumstances under which the order of detention dated 13-12-51 came to be passed or to come to an independent conclusion whether that order was passed bona fide. The bona fides of -the said order were under question even during the pendency of Cr. Misc. Petn. No. 202 of 1951, but the affidavit filed by the Under Secretary of the Home Department on 17-12-51 relating to circumstances under which the order of detention dated 13-12-51 was passed, was equally vague. Indeed, we cannot help noticing that even the information that it was the opposite party and not the Chief Minister that passed the order of detention under question was furnished to the Court, only after the Court felt constrained to pass a peremptory order on 18-2-52, calling for correct information as to who exactly passed the order, before it could entertain any hypothetical legal argument as to the validity of the said order. We must also remark that even in the second affidavit filed now by the opposite party before us, some further information which would have been helpful to the Court in coming to a definite conclusion as to the circumstances under which the impugned order came to be passed, has not been disclosed, viz., as to when exactly on 13-12-51 the opposite party got intimation of our prior order in Cr. Misc. Petn. No. 189/51 dismissing the same and whether or not he had any intimation on 13-12-51 of the fact that at about 2 p. m. of that day, there was information given to both sides as to the receipt of the certified copy of the judgment of the Supreme Court or of the further fact that at about 4 p. m. that day, a fresh application questioning the validity of the prior detention on behalf of the detenu was filed. In spite, however, of the absence of frankness to the Court, that has been the marked feature of the authorities concerned during the pendency of the Cr. Misc. Petitions Nos. 195 & 202 of 1951, as also during the pendency of the present proceedings, until after the 1st day of the final hearing, we recognize that the 2nd affidavit filed on 21-8-52 is a great improvement and as already stated that affidavit places the whole matter on a different footing.
5. The two facts emerging from that affidavit are: (1) The Govt. had by 8-12-51 received a letter from the Ministry of Law, New Delhi, which intimated the effect of decision of the Tarsikka case and which conveyed a definite advice that prior orders of detention which suffered from the defect of specifying the period of detention before confirmation of the order under Section 11 of the Preventive Detention Act, should be cancelled, and that fresh orders of detention without giving any date, should be passed before any applications are filed by the detenus themselves questioning the legality of the detention on this technical ground. (2) Acting on that advice, in six other cases of detentions, the prior defective orders were in fact, cancelled on the 8th December, 1951, that is, the very day on which the letter was received. But in the present case, the order of revocation and fresh order of detention were passed since the Habeas Corpus application relating thereto was then pending.
6. In the light of these two facts, it is now reasonable to assume that the revocation of the previous order and the passing of the fresh order on the 13th December, was consequent on the advice conveyed in the letter gf the Ministry of Law, New Delhi, dated 6-12-52, referred to above. No doubt, as already stated, there is no material even now, before us, as to whether this order was passed on that day after the second application questioning the prior order of detention viz., Cr. Misc. Petn. No. 195/51 was filed, i.e., during its pendency. But that application can be said to have been in fact pending only from after 4 p. m. that day. In view of the fact that in respect of some other detentions, orders of revocation, and fresh orders of detention were passed posthaste, on the 8th itself, it is obvious that the Govt. were only waiting for intimation of the result of the then pending application Cr. Misc. No. 189/51. It is reasonable to suppose that the concerned authority may well have received information of that dismissal by about 11 a. m. on 13-12-51 and lost no time in passing an order of revocation of the previous order, and a fresh order of detention. Having regard to the fact that there was ample time between the dismissal of the prior application and the filing of the fresh application, and having regard to the circumstances disclosed in the second affidavit, we consider it to be a fair inference that the opposite party did pass the fresh order between 11 a. m. and 4 p. m. on 13-12-51.
7. It is no doubt, true in one sense that when the fresh order of detention was passed in accordance with the advice conveyed in the letter of the Ministry of Law, New Delhi, it was passed in anticipation of any fresh application being made by the detenue on getting to know about the decision of the Supreme Court. But in such cases, mere anticipation is not enough to constitute contempt. What is required, is the knowledge of the imminence of the fresh proceedings. This is clear from the case in -- 'Emperor v. J. Choudhury', AIR 1947 Cal 414 (SB). Unless therefore there is reason to think that the order in question was passed after 2 p. m. that day, and the opposite party had by then information not only of the fact that the prior application Cr. Misc. Petn. No. 187/51 was dismissed, but also of the fact that at 2 p. m. the advocates on both sides had been informed by the Court about the receipt of the certified copy of the judgment of the Supreme Court and passed it on to them, we cannot come to a definite conclusion that the order was passed with the knowledge of the imminence of the fresh application. Though on this matter the opposite party might have been quite frank with the Court, and we have been furnished no definite information, we are not disposed to be meticulous since there is every reasonable likelihood of the order in question having been passed immediately after the intimation of dismissal of the pending application was received. Indeed, when that intimation was received, probably by phone, which we assume may have been at about 11 a. m., nobody had reason to suppose that the certified copy of the Supreme Court judgment in the Tarssika case would be available that very day to the Court or to the party concerned. In the, circumstances, therefore we must hold that the order of detention passed by the opposite party, cannot be said to have been passed either during the pendency of the fresh application, before this Court challenging the validity of the detention order or with knowledge of the imminence of any such application.
8. The second affidavit filed by the opposite party also furnishes information about another important circumstance, which the Court had throughout considered necessary to enable it to come to a clear conclusion as to the bona fides of the order in question, and which, it must be repeated, was withheld from Court until senior counsel appearing at the final hearing, brought the same to our notice through the 2nd affidavit. That information is what is contained in paragraph 6 of the affidavit, which shows that Secretaries to Govt. in emergencies of the kind that happened in the present case, passed similar orders without the prior approval of the Minister-in-charge of the Home Department, which was taken afterwards. Three such instances are furnished by way of illustrations, of the year 1949 and 1950. This shows that even if orders were passed without legal authority, which consequently have to be invalid, they were passed bona fide in view of the pre-existing practice. In the circumstances, we must also assume that the mala fides attributed to the opposite party arising out of the fact that the detenu was a candidate for the elections, must be taken to be not proved, for the same reasons for which this Court had already held so in connection with the prior application Cr. Misc. Petn. No. 189/51. On the above findings, therefore, we accept the explanation of the opposite party as contained in the two affidavits filed by him and we are accordingly prepared to drop the proceedings at this stage.
9. Before doing so, it is desirable to notice very briefly, the two arguments raised before us by learned counsel for the opposite party on the legal aspects put forward, viz., (1) that our prior decision, holding the order of the opposite party dated 27-11-51 to be without authority and illegal, is incorrect : (2) That the passing of any such order, even during the pendency of the application questioning the validity of the prior order of detention, does not constitute contempt of Court.
10. It may be mentioned that at the outset of the hearing of the case, we intimated to the senior counsel, who appeared for the opposite party, that we were prepared to hear an argument on the correctness of the view taken by us in Cr. Misc. Petns. 195 and 202 of 1951, about the invalidity of the order of detention dated 13-12-51, inasmuch as the opposite party was not eo nomine a party to these proceedings, and that if we were prima facie satisfied that it required reconsideration, we were prepared to constitute a special Bench for the purpose. Accordingly the first point was elaborately argued before us. On this point, learned counsel has relied on this occasion, as was done by the Advocate-General, on the prior occasion, on the Rules of Business of the Government of Orissa, (effective from 1st August, 1950), and framed in exercise of the powers conferred by Clause (3) of Article 166 of tbe Constitution of India. Great stress was laid upon Rules 2, 4, 8, 9 arid 13 of the main Rules of Business as also on Rule 2 of the Subsidiary Rules of Business framed under Rule 14 of the Main Rules. We were referred to the scheme of distribution of work disclosed in these rules and our attention was specifically invited to the word 'ordinarily' which occurs in Rule 2 of the Subsidiary Rules of Business.
The contention is that, having regard to the scheme of the distribution and the use of the word 'ordinarily' in Sub-rule (2), it is necessarily implied thereby that under certain extraordinary circumstances like the one which, has occurred with reference to the order under consideration, the Secretary of the concerned department has the power to pass on his own, authority, necessary, orders though constitutionally the responsibility has to continue to be that of the Minister concerned. Learned counsel has also drawn our attention to a case reported in -- 'Carltona Ltd. v. Commissioners of Works', (1943) 2 All E R 560 and strong reliance was placed on the following passage occurring at p. 560 of the report : 'In the administration of Government in this country, the functions which are given to ministers (and constitutionally properly given to ministers, because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To make the example of the present case, no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them.'
11. It has also been urged by learned counsel that so far as the rights and liabilities arising out of governmental action in favour of or against individuals are concerned, the same cannot in any way depend upon due observance of departmental rules which for that purpose can only be taken to be directory and not mandatory. See -- 'Dattatraya Moreshwar v. State of Bombay', 1952 S C J 235. We have considered these arguments carefully: but as at present adviced, we see no reason to think that our previous decision was erroneous in holding that under the Rules of Business of this Government, as they stand, the Secretary has no power to substitute his satisfaction for the satisfaction of the Minister concerned as regards detention cases & that an order passed in such cases by the Secretary on his own responsibility is invalid.
12. While it may be that Rules 4, 8, 9 and 13 of the main rules of business do not by themselves indicate that in all Governmental business the Minister has to give his personal attention to every matter and are elastic enough to comprehend such business being done by the Secretary on the responsibility of the Minister, the question of internal distribution of 'the disposal of cases' is really dealt with by the Subsidiary Rules of Business, in Part I. Rule 1 thereof clearly says that 'Save as otherwise provided in these subsidiary rules, cases shall be submitted by the Secretary in the Department or branch to which the case belongs, to the Minister in charge.' Rule 2 says: 'Subject to provisions of Rules 6, 8, and 14 below, cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge, who may give such directions as he thinks fit for the disposal of case to the Secretary.' These rules primarily indicate disposal by the Minister concerned, or by the Secretary under instructions from him. The use of the word 'ordinarily' may, as contended by learned counsel, no doubt indicate that in extraordinary circumstances the Secretary may dispose of certain normal administrative matters, of his own accord and under the responsibility of the Minister. But it does not follow that this is enough to empower the Secretary to dispose of any case in which the statutory requirements indicate a disposal by the Minister himself functioning for the Government.
I may mention that it has not been suggested to us that the phrase 'under the authority' in the 2nd portion of Rule 2 above means 'under the responsibility'. Indeed, it appears to me that having regard to the actual language used in Rules (1) and (2) such a contention would be untenable, & I take the phrase 'under the authority' in this context to mean 'under the authorisation'.
13. As regards the reliance on the passage quoted above from -- 'Carltona Ltd. v. Commr. of Works'. (1943) 2 All E R 560, it is to be noticed that in that case the question arose with reference to the validity of an order passed by the Assistant Secretary to the Commissioner for Works requisitioning some premises, under the Defence Regulations which authorised the requisition 'if it appears to the competent authority to be necessary so to do' for certain specified purposes. The observations in this case are quite apposite in their application to what may be called administrative business and orders essentially of an administrative character though in exercise of statutory powers. But as regards their applicability to the exercise by the Government of statutory powers of the kind, we are concerned with in the present case, I am not satisfied, without a more careful consideration and closer scrutiny of the facts of the case cited and the provisions of the relevant statutes. All that I need say at present is that on such further consideration it may well be found that the applicability of these observations will depend on a comprehensive consideration of the scope of the particular enactment and the nature and purpose of the statutory function to be discharged by the competent authority and the terms in which the power is granted to that authority to interfere with the fundamental rights of the individual. In a matter so fundamental as the deprivation of the personal liberty of an individual, without trial and without scope for challenge in the Courts of the sufficiency of the grounds of such deprivation, I should require a note (of?) direct authority to incline me to extend the applicability of the above observations in-- '(1943) 2 All E R 560' to such a case, In this context, a recent decision of the Supreme Court in -- 'The State of Bombay v. Purushottam Jog Naik', 1952 SCJ 503 may be referred to. In that case, which was a case of preventive detention, it was assumed that it is the Minister's satisfaction, and not that of the Secretary, that was required for a writ, otherwise a good deal of the discussion would have been unnecessary. See the passage at the bottom of p. 506 of the report.
14. If my view is correct that the rules do not contemplate the exercise of the power of detention by the Secretary direct, without reference to the minister concerned, it has not been argued before us that power which is to be exercised by the Minister, could be delegated by the Minister to the Secretary. In our previous decision, we specifically held that the satisfaction of the State Government required under Section 3 of the Preventive Detention Act which by virtue of the rules relating to allocation of business framed under Article 166(3) of the Constitution, must be taken to be the satisfaction of the concerned Minister, cannot be delegated to any other person in cases relating to detention. The correctness of that view has not been questioned before us at the present hearing. Indeed, in answer to our question to counsel, it was conceded that, if we came to the conclusion on a construction of the Rules of the Business, the Secretary as such, had no power to pass orders on this matter without reference to the Minister, any previous delegation by the Minister of such power could not validate it.
15. As regards the second point raised, viz., that the passing of a fresh order of detention, during the pendency of an application challenging the validity of a prior order of detention, cannot constitute contempt of Court, even though the fresh order is found to be illegal, it is unnecessary to come to any conclusion, for the purpose of this case. What constitutes contempt of Court is succinctly stated in Halsbury's Laws of England (Hailsham Edn.), Vol. VII, p. 6 para 8 in the following passage:
'Any act done or writing published which is calculated to bring a Judge into contempt or to lower his authority or to interfere with due course of justice or the lawful process of the Court is contempt.'
Oswald also defines contempt to be constituted by
'any conduct that tends to bring the authority and administration of law into disrespect or disregard or interfere with or prejudice parties, litigants or witness during the litigation.' (See Oswald on Contempt 3rd Edn. P. 6).
It may be seen from these passages that contempt is of two kinds, viz., (a) that which interferes with the due course of justice and pollutes the stream of justice, in so far as it concerns parties to a cause, as for instance, when comments are made on a pending case. (b) that which is calculated to bring a Judge into contempt or lower his authority or to interfere with the lawful process of the Court. There can be no doubt therefore that any act which is calculated to undermine the authority of the Court and to disturb the confidence of the citizen in the unquestioned effectiveness of its orders as against any executive authority however high, would be contempt. Of course, this is not to say that every such act will necessarily be treated as contempt by Courts in whom this drastic and summary jurisdiction is vested, not for the personal glorification of a Judge in bis office, but for the effective maintenance of the strong arm of judicial administration. None is more conscious than a Judge how sparingly such drastic and summary power is to be used.
16. On the above considerations, it would clearly be a contempt of court for any official to pass an illegal order of detention 'and' on the basis thereof to decline to give effect to an order of release passed by the Court however bona fide the action of the said official may be. That being so, there is no reason to think that, such contempt is committed, only when the concerned authority has actually flouted the authority of the Court by such an illegal order and not when he has passed an order intended to be so used. The basis of jurisdiction for contempt arises not merely from the actual flouting of the court's authority, but from the clear tendency that the particular act may have (?) to undermine the authority of the Court.
17. It has been brought to our notice that in a recent case in AIR 1952 S C 106 (April part) 'Naranjan Sing v. State of Punjab', the Supreme Court has held that during the pendency of an application questioning the validity of a detention order on account of some formal or technical defect, it is open to Government to revoke that order and to pass a fresh order devoid of the formal defect and that such a fresh order is perfectly legal. But this, in my opinion, does not necessarily show that the passing of an illegal order under such circumstances may not amount to contempt, if it clearly appears that such an order is calculated to undermine the authority of the Court, and has been passed by an incompetent authority on an irresponsible assumption of the existence of its competence.
18. In view of what has already been stated, namely, that we are prepared to accept the explanation offered by the opposite party as disclosed by the two affidavits filed by him, we drop the present proceedings. It must be ob-served, however, that the Court cannot but disapprove the absence of frankness which has characterised these proceedings and the lack of adequate realization of the duty which any person on authority, however high-placed, as (owes?) to the court, when figuring as a party before it.
19. It is unnecessary to reiterate the view which we had expressed in our previous judgment as to the constitutional impropriety of the practice of the Secretary of a Government Department, passing orders of detention, without clear legal authority therefor, a practice whose existence has now been admitted.
20.I agree with the order proposed.
21. In view of the affidavit filed by Sri S. M. Bose, learned counsel for the Contemner, which we accept, we are satisfied that the charge of mala fides should fail.
22. The facts now brought to our notice should and could have been disclosed at an earlier stage of the proceedings. If that had been done, it is possible that the proceedings which terminated in the release of the detenu from detention would have taken a different course. I cannot too strongly deprecate the way in which the State Government conducts proceedings to which it is a party before this Court. Material facts are often withheld--I do not say deliberately--and affidavits are swornto without regard for accuracy or relevancy. Animpression is thus created that the State Government does not realise the gravity of theproceedings to which it is a party or that it doesnot care for the result thereof, conscious as itis of the large powers given to it under thelaw. If such an impression exists, it is well torealise that the Court is not powerless. Whilethe Court is prepared to show the utmost indulgence in appreciation of the difficulties whichState Governments have to face these days, itis no respecter of persons and will deal with,the Government just like any other party to alitigation before it. If I do not discuss thepoints of law argued at the Bar, it is not outof disrespect to the learned counsel, but in theview that we take, on the facts, that any discussion of these points would be academic. Iwould only say that I am in entire agreementwith the view taken by my Lord the ChiefJustice.