1. This petition for writ of habeas corpus under the Art. 32 of theConstitution was heard by us on December 7, 1965. We then directed the releaseof the petitioner and indicated that reasons will follow later. We proceed todo so now.
2. The petitioner was detained by an order issued under r. 30 (1)(b) of theDefence of India Rules (hereinafter referred to as the Rules) by the Governmentof Orissa on December 29, 1964. He raised number of grounds challenging hisdetention. It is unnecessary to refer to all the grounds raised by thepetitioner. It is enough to say that one of the grounds raised by him was thatthe order of the detention passed by the State Government was not based uponthe satisfaction of the Government. The order was in these terms :-
'Order No. 8583/C,Bhubaneswar, the 29th December, 1964.
'WHEREAS the StateGovernment is satisfied that with a view to preventing Shri Jagannath Misra,son of Biswanath Misra, vill. Bhandarisahi, P. S. Parlakemedi, District Ganjam,from acting in any manner prejudicial to the defence of India and civildefence, the public safety, the maintenance of public order, India's relationswith foreign powers, the maintenance of peaceful conditions in any part ofIndia or the efficient conduct of military operations, it is necessary so todo, the Governor of Orissa in exercise of the powers conferred by rule 30(1)(b) of the Defence of India Rules, 1962, is pleased to direct that the saidShri Jagannath Misra shall be detained until further orders.
By order of the Governor,
Sd. Secretary toGovernment'.
3. It will be noticed that the order mentions six grounds on the basis ofwhich the petitioner was ordered to be detained, namely, acting in any mannerprejudicial to (i) the defence of India and civil defence, (ii) the publicsafety, (iii) the maintenance of public order, (iv) India's relations withforeign powers, (v) the maintenance of peaceful conditions in any part ofIndia, and (vi) the efficient conduct of military operations. As the petitionerhad raised the contention that the order had not been passed on thesatisfaction of the State Government we ordered the Minister concerned to filean affidavit in this behalf. Consequently, the Home Minister of the Governmentof Orissa who deals with matters of detention, has filed an affidavit to showthat the order in question was passed after the State Government was satisfiedof necessity thereof.
4. It is stated in this affidavit that the petitioner was ordered to bedetained on December 29, 1964, by the order in question and was actuallydetained on December 30, 1964. The affidavit then goes on to say that after theoutbreak of hostilities between China and India and the declaration ofemergency by the President a close watch was set on the movements andactivities of the persons who either individually or as a part of anorganisation were acting or were likely to act in a manner prejudicial to thesafety of India and maintenance of the public order, and in this conductionparticular attention was paid to the activities of the members of that sectionof the Communist Party which came to be known as the pro-Peking faction of theParty. The petitioner was a member of the pro-Peking faction and was underclose and constant watch. From the reports received regarding the activities ofthe petitioner the Home Minister stated in the affidavit that he was personallysatisfied that it was necessary to detain the petitioner under the Rules'with a view to prevent him from acting in a manner prejudicial to thesafety of India and maintenance of public order, etc.' The affidavit goeson to say that the decision to detain the petitioner was made on the personal satisfactionof the Minister and that the satisfaction was based on several reports placedbefore the Minister with respect to the activities of the petitioner.
5. The principle contention on behalf of the petitioner in relation to andagainst the affidavit of the Home Minister is that it is clear from a perusalof the affidavit that the Minister did not apply his mind in the matter of thedetention of the petitioner. It is urged that the order in question containssix grounds of the detention. These six grounds practically cover all thegrounds specified in s. 3 (2)(15) of the Defence of India Act (hereinafterreferred to as the Act) except two, namely - (i) the security of the State and(ii) of being of a hostile origin. It is therefore urged that the order was madecopying out practically all the grounds specified in s. 3(2)(15) of the Actwithout the application of the mind of the Minister whether those grounds weremade out the in this case. Reliance in this connection is placed on theaffidavit of the Home Minister where he has stated that he was personallysatisfied that it was necessary to detain the petitioner in order to preventhim from the acting in a manner prejudicial to the safety of India andmaintenance of public order, etc. It is urged that the affidavit shows that theMinister did not the really apply his mind to the question of the detention ofthe petitioner and grounds for doing so and acted in a casual manner inapproving the detention of the petitioner. It is urged that while the groundsspecified in the order are six in number, the Minister when speaking of hissatisfaction has mentioned only two, namely, safety of India (which may beassumed to be the same as the public safety) and maintenance of the publicsector.
6. There is in our opinion force in this contention on behalf of thepetitioner. The order of detention under r. 30 (1)(b) of the Rules deprives acitizen of this country of his personal liberty and in view of the suspensionof some of the fundamental rights by the President on account of the emergency,a citizen has very limited opportunity of challenging an order or detentionproperly passed under the Rules. It seems to us therefore necessary wheredetention is made under the Rules that the authority ordering detention shouldact with a full sense of responsibility keeping in mind on the one hand theinterests of the country in the present emergency and on the other hand theimportance of the liberty the citizen in a democratic society. That this is sois also emphasised by s. 44 of the Act which lays down that 'any authorityor person acting in pursuance of this Act shall interfere with the ordinaryavocations of the life and the enjoyment of property as little as may beconsonant with the purpose of ensuring the public safety and interest and thedefence of India and Civil defence.' In view of this specific provision inthe Act it is incumbent upon the authority which is passing an order under r.30(1)(b) of the Rules taking away the liberty of a citizen of this country thatit should act with due care and caution and see that he person detained is sodetained on grounds which justify the detention in the interest of the country.Further the proceedings in the matter of detention and the order of detentionshould show that it had acted with all due care and caution and with the senseof responsibility necessary when a citizen is deprived of his liberty withouttrial. We have therefore to see whether in the present case the authorityconcerned has acted in this manner or not. If it has not so acted and if itappears that it did not apply its mind properly before making the order ofdetention the order in question would not be and order under the Rules and theperson detained would be entitled to release.
7. Now we have pointed out that the order of detention in this case refersto six out of eight possible grounds on which a person can be detained under s.3(2)(15). Of these eight grounds under s. 3(2)(15) one refers to foreignersi.e., of being of hostile origin. Therefore in the present case the orderreally mentions six out of seven possible grounds which can apply to an Indianwhose detention is ordered under s. 3(2)(15). We do not say that it is notpossible to detain a citizen on six out of the seven possible grounds under s.3(2) (15); but the if that is is done it is necessary that the authoritydetaining a citizen should be satisfied about each one of the grounds that thedetention is necessary thereon. But if it appears that though the order ofdetention mentions a large number of grounds the authority concerned did norapply its mind to all those grounds before passing the order, there can in ouropinion be no doubt in such a case that the order was passed without applyingthe mind of the authority concerned to the real necessity of detention. In thepresent case as we have already pointed out six grounds out of the possibleseven grounds on which a citizen can be detained have been mentioned in theorder; but in the affidavit of the Minister we find mention of only two ofthose grounds, namely, safety of India (which may be assumed to be the same aspublic safety) and the maintenance of public order. In these circumstancesthere can be little doubt that the authority concerned did not apply its mindproperly before the order in question was passed in the present case. Such adiscrepancy between the grounds mentioned in the order and the grounds statedin the affidavit of the authority concerned can only show an amount ofcasualness in passing the order of detention against the provisions of s. 44 ofthe Act. This casualness also shows that the mind of the authority concernedwas really not applied to the question of detention of the petitioner in thepresent case. In this view of the matter we are of opinion that the petitioneris entitled to release as the order by which he was detained is no order underthe Rules for it was passed without the application of the mind of theauthority concerned.
8. There is another aspect of the order which leads to the same conclusionand unmistakably shows casualness in the making of the order. Where a number ofgrounds are the basis of a detention order, we would expect the various groundsto be joined by the conjunctive 'and' and the use of the disjunctive'or' in such a case makes no sense. In the present order however wefind that the disjunctive 'or' has been used, showing that the orderis more or less a copy of s. 3(2)(15) without any application of the mind ofthe authority concerned to the grounds which apply in the present case.
9. Learned counsel for the State however relies on the word 'etc.'appearing in the affidavit. His contention is that as the order of detentionhad already been mentioned in an earlier part of the affidavit of the HomeMinister, the word 'etc.' used in the later part of the affidavitmeans that though the affidavit was only mentioning two grounds, namely, thesafety of India and the maintenance of public order, it really referred to allthe grounds mentioned in the order. We are not prepared to accept this. Ifanything, the use of the words 'etc.' in the affidavit is anotherexample of casualness.
10. It was also urged in behalf of the State that the order in question wasnot actually written out by the Minister and that after the satisfaction of theMinister such orders are prepared by his subordinates in the Secretariat andthat therefore the Minister was not responsible for the discrepancy between theorder and the affidavit. We are not prepared to accept this explanation, for itis the duty of the Minister to see that the order is issued in accordance withhis satisfaction and carries out his directions. Though the Minister may notwrite out the order himself he is as much responsible for it as if he had doneso himself, for no order of detention can be passed without the satisfaction ofthe authority empowered under the Act and the Rules. The authority cannot takerefuge in saying that it was really satisfied about, say, one ground but theperson who later on wrote out the order of detention added many more grounds whichthe authority never had in mind. It is the duty of the authority to see thatthe order of detention is in accordance with what the authority was satisfiedabout. If it is not so, the inference of casualness is strengthened and theCourt would be justified in coming to the conclusion that the order was passedwithout the application of the mind of the authority concerned.
11. Petition allowed.