Avadh Behari, J.
(1) Eknath Laxman Choudhury, petitioner inthis petition, seeks a writ of habeas corpus challenging the validity ofhis detention.
(2) The Additional District Magistrate Delhi passed an order ofdetention on 21/04/1977 under sub-clause (i) of clause (a) ofsub-section (1) of section 3 of the Maintenance of Internal SecurityAct (the Act) directing that the petitioner be detained on the groundthat it was necessary so to do 'with a view to preventing him fromacting in any manner prejudicial to the security of India.' Immediatelyhe was served with the grounds of detention.
(3) The petitioner is the deputy marketing manager in the StateTrading Corporation. In the grounds of detention it was alleged thathe was passing secret information and classified documents to theagent of a foreign power. It was said that in a confessional statementmade by him before the metropolitan magistrate on 14/02/1977he had confessed his guilt. The grounds of detention are the following:
'ONreceipt of information that Sh. E. L. Choudhury Dy.Marketing Manager, Stc had been in conspiracy with theagent of a foreign power and had been collecting directlyor indirectly secret information and documents and passing on the same to the agent of the foreign power, a trapwas laid and he was caught red handed while in transaction with the agent of the foreign power at the 0ber(iIntercontinental Hotel, New Delhi on 26/01/1977.Case Fir No. 26 dated 26-1-77 u/s 3, 4, 5, 9 Ios Actread with Sec. 120-B Indian Penal Code was registered against him P.S.Srinivaspuri. From his personal search a sum of Rs. 400/which he had received from the foreign agent in lieu ofthe sensitive documents, were recovered.
'INhis confession statement before Sh. Jaswant Singh. Metropolitan Magistrate, New Delhi on 14-2-1977 he hasadmitted that he came in contact with the agent of aforeign power in the year 1956-57 when he was in theFinance Ministry. The foreign agent used to come tohis office and see the office pads and files availablewith him against small payments and gifts. In 1970 whenhe was serving in the Stc the foreign agent allured himto political, economic, defense and allied matters fromhis old colleagues and contacts from the FinanceMinistry and other government offices against handsomepayments. The agent had told him that these documents and information would be supplied to the foreigners. He was also assured a good job after his retirement from STC. Consequently he established contactsin the Ministries and collected classified documents andinformation which he supplied to the foreign agentagainst handsome payments from 1972 till the dateof his arrest. In all he received Rs. 30,000 to Rs.35,000 during the period from 1972 onwards, outof which he paid Rs. 15,000 or so to his contactsin the various Ministries and government offices. Hehas also identified some of the documents recoveredfrom the foreign agent's residence.'
(4) The petitioner was arrested by the police on 26/01/1977at the Oberoi Intercontinental Hotel, New Delhi in connection withcase Fir No. 26 dated 26/01/1977 under sections 3, 4, 5, and 9, Indian Official Secrets Act read with section 120-B, Indian PenalCode registered against him at the police station Srinivaspuri. On 11/02/1977 an order of detention under sub-clause (i) ofclause (a) of sub-section (1) of section 3 of the Act was served onthe petitioner in jail. On 11/02/1977 a declaration under section 16-A of the Act was also made. Under section 16-A of the Actit was not necessary to serve the grounds of detention on the petitionerduring the period of operation of the proclamation of emergency issuedunder clause (1) of Article 352 of the Constitution on the 25th dayof June, 1975.On 14/02/1977, the petitioner made a confessional statement under section 164, Code of Criminal Procedure before ShriJaswant Singh, Metropolitan Magistrate, New Delhi.On 21/03/1977, the order dated 11/02/1977 was revoked and a fresh order of detention was made. Section 16-A of theAct had lapsed on the revocation of the proclamation of emergencyby the President. The grounds of detention dated 21/03/1977were communicated to the petitioner. In this order of detention therewas a technical defect. thereforee, this order was revoked. On 21/04/1977, another order of detention was passed. Immediately thegrounds of detention were served on the petitioner which we haveset out above. It is this order which is now challenged beforeus.The petitioner's case was referred to the Advisory Board under section 9 of the Act. The Board held its meeting on 16/05/1977.The petitioner appeared before the Board. He was heard. He alsosubmitted a representation in writing to the Board. The Advisory Board sent its opinion on 21/05/1977 to the DelhiAdministration. The Board held that the detention of the petitionerwas justified.On 19/07/1977, the petitioner sent to this court a home madeapplication for writ of habeas corpus from jail.
(5) Mr. R. K. Jain appearing amices curiae on behalf of the peu-tioner challenged the order of detention before us on four main grounds.Firstly, he submitted that the order of detention is ex facic bad asit does not afford to the petitioner an opportunity of making a representation against the order. Sub-section (1) of section 8 says:
8.Grounds of order of detention to be disclosed to personsaffected by the order.-(1) When a person is detainedin pursuance of a detention order, ''the authority makingthe order shall, as soon as may be, but ordinarily notlater than five days and in exceptional circumstances andfor reasons to be recorded in writing, not later than fifteendays, from the date of detention communicate to him thegrounds on which the order has been made and shallafford him the earliest opportunity of making a representation against the order to the appropriate Government.
The 'appropriate government' has been defined in the Act. The'appropriate Government' in the case of Union territory ofDelhi is the Administrator. S. 2(a) read with section 2(d) of theAct].
SECTION8(1) of the Act lays down two requirements :(1) the detaining authority shall communicate to the persondetained the grounds on which the order has been made..(2) 'and shall afford him the earliest opportunity of makinga representation against the order to the appropriate Government.'
(6) Mr. Jain says that the order of detention is bad as it docsnot comply with the second requirement. The order sets forth theground of detention and stops there. It does not tell the detaincethat he can make a representation to the Government (In this caseAdministrator) against the order of detention.We think this contention is well founded. The above twoconditions are the basic minimal safeguards which must be observedbefore an executive authority can be permitted to preventively detaina person and thereby deprive him of his right of personal liberty inthe name of security. These are procedural safeguards. But proceduralrequirements are as important as matters of substance.
(7) Counsel for the Delhi Administration argued that it was notnecessary for the detaining authority to state in the order that thedetainee can make a representation against the order. He said thatthe two conditions are interlinked and it is enough for the detainingauthority to communicate the grounds of detention so that the detaineemay make a representation we were referred to Khudiram v. Stateof West Bengal : 2SCR832. We are unable to agree with the counsel for the Administration.It is true, as the Supreme Court has said, that the order of detentionmust be communicated so that the detenu may have an opportunityof making an effective representation against the order. But thisin our opinion does not mean that the detenu has not to be affordedan opportunity of making a representation. As we read the statutethe two conditions are separate and distinct. That both lead to thesame result is not a ground for non-observance of the second condition. The second condition is an independent obligation laid on thedetaining authority. 'And shall afford' and words of imperative mood.They have a positive content. The obligation is worded in activevoice. It is a positive dirty laid upon the detaining authority. The word 'afford' is a critical word. Its dictionary meaning is to give,furnish, offer, bestow, grant. Here it means an obligatory act or dutyof giving opportunity. How is a detenu to be given an opportunityunless the authority making the order tells him that he can make arepresentation against the order to the appropriate Government if heis so advised. It is a valuable right of the detainee. Correlativelythere is a duty on the detaining authority to afford an opportunity.That the detainee may not avail of the preferred opportunity is another thing. It is entirely up to him. The giver of the opportunity isthe detaining authority. The detenu is the beneficiary. The Actrestricts citizens' personal liberty which is a fundamental right underthe Constitution. It has. thereforee, to be construed strictly.so far as possible in favor of the citizen and in a manner that doesnot restrict that right to an extent greater than is necessary to effectuatethat object. (Shaik Hanif v. State of West Bengal. : 1974CriLJ606 ). So the canon of construction is that all matters affectingthe liberty of the subjectarc to be strictly construed.
(8) We must adhere closely to the words of the statute. In matters of individual liberty the law insists upon the literal performanceof a procedural requirement. A literal performance of a conditionis one which complies exactly with its terms. Before a person canbe deprived of his personal liberty, all the requirements of the Constitution and of any law that may be applicable to the case, must bestrictly complied with. In Thomas Pelham Dale's case (1881) 6QB 376:
IT is a general rule which has always been acted upon bythe Courts of England that if any person procures theimprisonment of another, he must take care to do so bysteps all of which are entirely regular and that if he failsto follow every step in the process with extreme regularity, the Court will not allow the imprisonment tocontinue.
In Ram Krishan v. State of Delhi, : 1953CriLJ1241 Patanjali Sastri C.J. observed as follows :
PREVENTIVEdetention is a serious invasion of personal libertyand such meagre safeguards as the Constitution has provided against the improper exercise of the power mustbe jealously watched and enforced by the Court.
(9) See what has happened in this case. The detenu did not makeany representation to the Administrator. Probably he never knew ofthis procedural right. Before the Advisory Board he made a representation in writing when he appeared before them on May 16,1977. But that is an entirely different thing. The right of representation to the appropriate Government is a valuable right. TheGovernment has to consider the representation as soon as it is made,apply its mind to it and if necessary take appropriate action. Apartfrom the procedure of reference to the Advisory Board, the StateGovernment has ample power under section 13 of the Act to revokeany order of detention at any time. The Legislature is anxious tosee that the detaining authority affords the 'earliest opportunity' tothe detenu of making a representation against the order to the appropriate Government and the Government in its turn consider therepresentation as soon as it is made. No time is to be lost.Why should a person be detained even for a single day has to beconsidered by the appropriate Government. What is at stake is theissue of personal freedom.
(10) The obligation of the detaining authority to consider therepresentation is different from the obligation of the Advisory Boardto consider the representation later on at the time of hearing thereference. So under clauses (6) and (5) of Art. 22 of the Constitution there is a dual obligation on the Government and a dual rightin favor of the detenu, namely, (1) to have his representation considered by the appropriate Government, and (2) to have once againthe representation considered by the Advisory Board before it givesits opinion. The appropriate Government is not relieved of its constitutional obligation to consider the representation even if it is madeby the detenu after his case had been referred to the Advisory Board.[See Punkaj Kumar v. State of West Bengal, : 1SCR543 and Abdul Karim v. State of West Bengal, : 1969CriLJ1446. But the question is : How is the representationof the detenu to be considered unless the detaining authority affordshim the earliest opportunity of making a representation against the order to the appropriate Government? In this case the result isthat there has been an erosion of the 'opportunity of making a representation against the order'.
(11) The grant of opportunity for making a representation is infact the application of the principle of natural justice. The statuteembodies it in section 8. It abrogates it in section 16A during theemergency. Section 16A expressly says that : 'notwithstanding anything contained in this Act or any rules of natural justice. -. ....' theappropriate Government can pass an order of detention without communicating the information and material in its possession and withoutaffording the detenu any opportunity of making a representationagainst the order of detention [Section 16A(1) and (5)].Before us a detention order of the West Bengal Government wasproduced as a model where it is said:
YOUare hereby informed that you may make a representation to the State Government against the detention orderand that such representation shall be addressed to theAssistant Secretary Home (Special) 'Department, Government of West Bengal and forwarded through the Superintendent of Jail in which you have been detained as earlyas possible.
We find a similar form in use in Shaik Hanif v. State of WestBengal, : 1974CriLJ606. We know that the formis not the law. The statute is the law. But this shows how detaining authorities in other States view their obligation or duty. Theyspecify clearly the authority to which the representation is to bemade.
(12) We, thereforee, reach the conclusion that an independent obligation to give opportunity to the detenu for making a representationflows from the words of section 8(1) of the Act as from Article 22(5) of the Indian Constitution. In the present case no opportunity was afforded. An essential step in procedure was omitted. Thisis a fatal flaw. As the Supreme Court has said in Abdul Karim'scase (supra) :
PREVENTIVEdetention is a serious invasion of personal liberty,and, thereforee, the Constitution has provided proceduralsafeguards against the improper exercise of the power ofpreventive detention. All the procedural requirements ofArticle 22 are in our opinion mandatory in character andeven if one of the procedural requirements is not complied with, the order of detention would be renderedillegal.
(13) This takes us to the second ground of challenge. Mr. Jain says that the detaining authority in this case was overawed by the ordersof the Home Ministry contained in the letter dated 11/02/1977and the Communication made to her by the Superintendent of Policedated 22/03/1977. All this, he says, shows that the detaining authority was influenced by extraneous considerations and its own subjective satisfaction did not constitute the foundation for the exercise ofthe power of detention. It is necessary to read at this stage the lettersof the Home Ministry and the Superintendent of Police :
S. C. VaishDirector (IS)Tele: 375670. Government of India Ministry of Home Affairs New Delhi-110001. the 11/02/1977.Dear Shri Sushil Kumar,This is in continuation of my D.O. letter No. D 591'/77-T. datedthe 7/02/1977. regarding the detention of a Cia network inIndia.2. Pending further investigation of Si'inivaspuri P.S. Case No. 26dated 26/01/1977 u/s 3 and 9 of the Official Secrets Act readwith Section 120-B, the following persons involved in this case 'may bedetained under Misa :-(i)..................................................(ii) E. L. Choudubry, Deputy Marketing Manager, State Trad-ing Corporation.(iii) .. .................,. ........................(iv) ... ........................,. ................(v)............................................For obvious reasons it will not be possible to disclose the groundsof detention and hence Section 16-A of the Act have to be invokedWe may be informed after the action is taken. Yours sincerely, Sd/ (S. C. Vaish)Shri Sushil Kumar,Chief Secretary,Delhi Administration,Delhi.No. D. 641/77-T, dated 11-2-1977.Copy forwarded to Shri B. K. Goswami, Deputy Commissioner,Delhi, for information and accessary action. Sd/ (S. C. Vaish) Director (IS).'The record of the detaining authority shows that on 22/03/1977the Superintendent of Police Cid wrote a letter to the District Magistrate. The following is the text : - 'Confidential. Criminal Investigation Department. Special Branch Delhi, dated the 22/03/1977. No. 905/Z'The following 8 accused persons were 'arrested in case Fir No. 26 dt. 26-1-77 u/s 3, 4, 5, 9 Ios Acts and 120-B Indian Penal Code of Police StationS. N. Puri, South Distt., N. Delhi. They were also detained under MISASince the emergency has been lifted, their previous, orders of detentionstand revoked automatically. Their detention under Misa, is however,absolutely necessary for the security and defense of the country. thereforee, detailed notes giving grounds of detention of each (in triplicate)are enclosed herewith for issue of their detention orders afresh :1. ............2. E. L. Choudhury, s/o Lakshman Choudhury, r/o 6/1, SouthPatel Nagaft-, New Delhi.3. .............................................4. ............................................6..............................................7. ............................................8.............................................. sd/- (K. S. Bajwa) Superintendent of Police, Cid S. N. Delhi 22-3-77.'Shri B. K. Goswami,D.M' Delhi.To this letter were attached the grounds of detention which wereadopted by the detaining authority almost word for word with slightverbal changes here and there.
(14) Now what does the law requires? As we read the statutethe subjective opinion of the detaining authority is the foundation of the order of detention. It follows that the opinion must be theopinion of the detaining authority and not of some one else. The Authority has to form its opinion. It is not to be guided or controlled bythe opinion of another person or authority. If the detaining authoritycommits a person to jail at the bidding or behest of a superior authorityit cannot be said to be a detention for the purposes recognized by theAct. Such an order is a pretence.As Bhagwati J. has said:
THEsatisfaction must be a satisfaction of the authority itself,and thereforee, if, in exercising the power, the authority hasacted under the dictation of another body as the Commissioner of Police did in Commr. of Police v. GordhandasBhanji, : 1SCR135 and theofficer of the Ministry of Labour and National Service didin Simms Motor Units Ltd. v. Minister of Labour andNational Service (1946) 2 All Br 201 the exerciseof the power would be bad.'(Khudiram's case, supra).
In Bhut Nath Mate v. The State of East Bengal, : 1974CriLJ690 Krishna lyer J. said:
THEimportant point is that the satisfaction of the public functionary though subjective, must be real and rational, notcolourable, fanciful, mechanical or unrelated to the objects enumerated in S. 3(1) of the Act.
Where the Authority has not applied its mind at all : in such acase the authority could not possibly be satisfied as regards the factin respect of which it is required to be satisfied : See Emperor v.Shib Nath Banerji . This means that satisfaction is not grounded on 'material which is of rationally probativevalue'. (Machinder v. King Air (1950 Fc 129. It is an abuseof power to exercise it for a purpose different from that for which it isentrusted to the holder, not the less because he may be acting ostensibly for the authorised purpose. (See Smith v. East Elloe Rural DistrictCouncil 1956 Ac 736 per Lord Redcliffe). In Req. v.Governor of Brixton Prison Ex parte Soblem (1963) 2 Qb 243 Lord Denning laid down the test. He said:
ITseems to me that it depends on the purpose with which theact is done. If it was done for an authorised purpose, it waslawful. If it was done professedly for an authorised purpose, but in fact for a different purpose with an ulteriorobject, it was unlawful.
(15) Apply these principles to this case. In her order dated 21/04/1977 which we find on her file the Additional District MagistrateMrs. Meenakshi Datta Ghosh says:
HOWEVER,on consideration of the material before me, supplied by Supdt. of Police Cid (SB) it is considered necessary to redetain the said Sh. E. L. Choudhury under s.3(l)(a)(i) of Misa with a view to preventing him fromacting in a manner prejudicial to the security of India.
Much to the same effect is her affidavit filed before us. There shesays:
Iissued detention orders of the petitioner after perusing anddiscussing the evidence brought forth against the petitionerduring investigation of the case above noted against the petitioner and others and on receiving reports against himfrom higher authorities which I had no reason to disbelieve.
THEcase for issuing detention orders was very thoroughlyand minutely examined not only by me but also by theMinistry of Home Affarirs, Government of India and S.P.,C.I.D. (S.B.). Since the same were also conveyed to meby higher authorities, I had no reason to disbelieve thesame.
(16) It appears that the authority has not exercised its personaljudgment. The authority has purported to act under the dictation of asuperior. It has acted on expediency rather than its own subjectiveopinion. From the Home Ministry it was a command to her. From theSuperintendent of Police it was an authoritative direction peremptoryin character. The Superintendent said that 'their (accused persons')detention under Misa is absolutely necessary for the security anddefense of the country. thereforee, detailed notes giving ground of each(in triplicate) are enclosed herewith for issue of their detention ordersafresh'.The detaming authority, it appears to us, did not address itselfindependently to the matter for consideration. It accepted instructionsfrom above. 'The Additional District Magistrate went by the instructionsof the 'higher authorities', to use her own expression. She surrenderedher individual judgment. She mechanically adopted the view of an outside authority. The detaining authority entrusted with power of discretion to detain or not to detain did not exercise the statutory discretionindependently. The exercise of discretion of the detaining authority hasbeen subject to pressure. thereforee, the order is sham. [See R. v.Governor of Brixon ex parte Soblen (supra).]On the material we are unable to conclude that there was any application of mind on the part of the detaining authority and that shehad not acted upon someone else's opinion.
(17) On this material another division bench to which one of us(Prakash Narain J.) was a patty reached the same conclusion. It washeld in that case that the order of detention is sham as the detainingauthority acted mechanically and in obedience to the orders she hadreceived for detention from the Ministry of Home Affairs. (See RajPrakash Varashney v. The Additional District Magistrate, Criminal WritNo. 13 of 1977(14) decided on 5/08/1977 by Prakash Narainand P. S. Safeer JJ). On the facts of this case we are of the sameview.
(18) This brings us to the third ground of challenge. As we haveseen the first requirement under section 8(1) is that the detaining authority must within the time laid down therein communicate to thedetenu the grounds on which the order of detention has been made.The reason of his requirement is twofold. Firstly, the requirement ofcommunication of grounds is a check against arbitrary exercise ofpower. 'Absolute discretion is a ruthless master. It is more destructiveof freedom than of any man's other inventions' (Douglas J in UnitedStates v. Wondulich (1951) 342 Us 98. Unlimited power todetain any man at will is too dangerous to deposit in any ruler, official or bureaucrat.
(19) Those who won our independence valued liberty both as allend and as a means. They believed liberty to be the secret of happinessand courage to be the secret of liberty. These words of Pericles utteredat the Funeral Oration reverberated in their ears. The founding fatherswere themselves soldiers of freedom. They knew, as Burke had said,that law and arbitrary power are in eternal enmity. And as WoodrowWilson had said:
THEhistory of liberty is a history of resistence. The history ofliberty is a history of limitations of government power, notthe increase of it.
The framers of the Constitution were aware that though they weregiving a Constitutional status to preventive detention yet its wholetheory was sinister and strangely out of place in a democratic constitution conceived in liberty, (Gopalan v. State of Madras, : 1950CriLJ1383. The constitution makers, thereforee, PROVIDED that the detaining authority must communicate grounds which weighedwith it in making the decision that a given person must be detained.This was intended to serve as a limitation on the vast powers of preventive detention which the legislature was confinding in the executive.
(20) Secondly, the detenu has to be afforded an opportunity of making a representation against the order of detention. But if the groundsare not communicated to him, how will he make an effective representation? The right of representation under Article 22(5) of the Consitution is valuable right and not mere formality. It is a matter ofsubstance and not of form- If the right of representation is to be realand not only illusory the grounds of detention must be communicated.Otherwise, the right of representation conferred by Article 22(5) would be rendered nugatory.
(21) Now 'grounds' mean all the basic facts and materials whichhave been taken into account by the detaining authority in making the order of detention and on which the order of detention is based (Khudiram Das (supra) at p. 554). It would include any information ormaterial which influenced the detaining authority in making the orderof detention. It would include facts except those which the detainingauthority considers to be against the public interest to disclose (s. 8(2)).What do we find in this case? Has the detaining authority satisfied the constitutional and statutory requirements? Did it communicate to the detenu the grounds, those basic facts and material particulars, which were considered by Mrs. Ghosh in making the order ofdetention. Now in her affidavit dated 4/08/1977 she says:
THEmaterial brought out against the petitioner on which myorders of detention were passed are reproduced not onlyin the confessional statement of the petitioner above notedbut also in evidence procured by the police during investigation and all these things were the basis of my subjectivesatisfaction.
(22) The materials which are avowedly the foundationof her order of detention are two-fold: (1) the confessional statement, and (ii) the evidence in the police record. But in the groundsshe has referred only to the confessional statement. The evidenceprocured in the police investigation has not been mentioned in thegrounds of detention at all nor communicated to the detenu. TheAdditional District Magistrate herself says that this evidence alsohad effect on her mind and weighed with her in reaching the requisite satisfaction. The detention order must, thereforee, be held invalidas it does not give 'all the facts and materials' on which the orderis based. Orders based on uncommunicated materials are unfair andillegal (Bhut Nath Mate v. State of West Bengal), : 1974CriLJ690. 'It is elementary' to quote Bhagwati J.:
THATthe human mind does not function in compartments.When it receives impressions from different sources IT is the totality of the impressions which goes into themaking of the decision and it is not possible to analyseand dissect the impressions and predicate which impressions went into the making of the decision and whichdid not. Nor is it an easy exercise to erase the impression created by particular circumstances so as to excludethe influence of such impression in the decision-makingprocess.' (Khudiram's case (supra) (page 561 )).
We must, thereforee, hold the order of detention bad, both on theground that all basic facts and materials which influenced the subjective satisfaction of the Additional District Magistrate were notcommunicated to the detenu as also on the ground that the detenuwas denied an opportunity of making an effective representationagainst the order of detention.
(23) We now take up the fourth ground on which the order ofdetention was attacked. Section 3(3) of the Act says:
(3)When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government to which he issubordinate together with the grounds on which the order has been made and such other particulars as inhis opinion have a bearing on the matter, and no suchorder shall remain in force for more than twelve daysafter the making thereof unless in the meantime it hasbeen approved by the State Government.
Section 3(4) then provides:
WHENany order is made or approved by the State Government under this section, the State Government shall,within seven days, report the fact to the Central Government together with the grounds on which the orderhas been made and such other particulars as in theopinion of the State Government have a bearing on thenecessity for the order.
(24) Now the record of the Administrator shows that he approvedthe order of detention on 29/04/1977. But the question is : Whatwas the information and material placed before him at the time ofseeking the approval? The section says that the detaining authorityhas to submit together with the grounds on which the order has beenmade 'such other particulars as in his opinion have a bearing on thematter'. The object of sub-section (3) is to see that the appropriateGovernment serves as a supervisory authority on the Additional District Magistrate to decide whether the power of detention has beenproperly or improperly exercised. If the appropriate government isto effectively discharge its function as an overseeing superior authorityin determining whether to grant or withhold its approval to the orderof detention made by the Additional District Magistrate it must afortiorari have before it all the basic facts and materials on whichthe detention order is based. For this purpose the basic minimumis that the detaining authority places before the appropriate government the entire record of the case which was before it. Only thencan the appropriate government take the decision to approve or notto approve the order of detention, Counsel for the Administration frankly conceded that all thatwas sent to the Administrator in this case were the grounds. Thisshows that the Administrator did not have before him the full confessional statement of the detenu which he could read for himselfnor the evidence of the police investigation which he could peruse tosatisfy himself that the order has been made on good grounds i.e. 'onmaterial which is of rationally probative value', to use the wordsof Patanjali Sastri J. in Machinder's case (supra). If all the basicfacts and materials and other particulars having a bearing on thematter are not placed before the Administrator how can he find whether the detaining authority grounded its satisfaction on materials relevant to the purposes of the Act. If the appropriate Government doesnot apply its mind and approves the order in mechanical routine ithas not discharged the function assigned to it by the legislature. Itthen abdicates its function, so to say.
(25) Similarly, to the Central Government the particulars of thecase 'having a bearing on the necessity for the order' were neversubmitted. Only the order and the grounds were sent. This is whatwe were given to understand in the course of the hearing when wepointedly drew the attention of the counsel for the Central Government and the Administration. On behalf of the Central Govrtnmrny and the Administrator no affidavit was filed. Of the Central Government even the record was not produced.If the Central Government did not have before it the materialhaving a bearing on the 'necessity' for the order it could not exerciseits judgment. Under the Act the Central Government has the lastword. It has to apply its mind. It can revoke a detention order ofthe State Government as of itself. (See John Martin v. State of West,Bengal, : 1975CriLJ637. If it finds that the State Government is misusing the power vested in it by the Act and .is detainingpersons out of animosity or pique it can revoke the order. It hasthe overriding power (See s. 14 of the Act). But if the CentralGovernment is merely informed of the order and is not informed ofthe facts leading to the 'necessity for the order' that is not a strictcompliance of sub-section (4) of section 3- If the Central Government cannot inform its mind about the 'necessity' for the order asno material is placed before it, it effaces itself virtually.
(26) Counsel for the Administration argued that the petitioner had not raised these points in the petition and, thereforee, they had noopportunity to meet them. We cannot accept this contention. Theonus to show that a detention has taken place in due course of lawis upon the detaining authority. In the nature of things the prisonerwill seldom be able to do more than raise a prima facie case, oralternatively to sow much substantial and disquieting doubts in themind of the court about the bona fides of the order he is challengingthat the court will consider that some answer is called for. (See Rulesof the Punjab High Court Ch. 4F(a) Rules 8 and 10). Lord Atkinhas said that:
EVERYimprisonment is prima facie unlawful and that it isfor the person directing imprisonment to justify the act.'(Liversidgev. Anderson (1942) A.C. 206 .
(27) A detention becomes unlawful not only where there is no lawto justify it, but also where 'procedure established by law' whichauthorises the detention has not been followed. (Article 21 of theConstitution).In Makhan Singh v. State of Punjab, : 1950CriLJ1383 theSupreme Court said:
BEFOREa person is deprived of his life or personal libertythe procedure established by law must be strictly followed and must not be departed to the disadvantage of thepersons affected.
These words recall to mind the famous words of Lord Atkin inthe Privy Council in Eshugbayi Eleko v. Government of Nigeria, 1928A.C. 459 :
INaccordance with British jurisprudence no member of theexecutive can interfere with the liberty or property of aBritish subject except on the condition that he can support the legality of his action, before a court of justice.And it is the tradition of British justice that judges shouldnot shrink from deciding the issues in the face 'of theexecutive.
In the troubled times of war Lord Atkin made the celebratedspeech in the House of Lords:
INthis country, amid the clash of arms, the laws are notsilent. They may be changed but they speak the samelanguage in war as in peace. It has always been oneof the pillars of freedom, one of the principles of libertyfor which on recent authority we are now fighting, thatthe judges are no respecters of persons and stand between the subject and any attempted encroachment on hisliberty by the executive, alert to see that any coerciveaction is justified in law.
(Liversidge v. Anderson (1942) A.C. 206 .Whenever individual freedom has come under attack judges andlawyers have: remembered these words and found comfort in them.The Supreme Court has said that it is for the State to satisfy theCourt about the legality of the detention. It is incumbent upon theState to show that the detention of the petitioner was legal and inconformity not only with the mandatory provisions of the Act but isalso in accord with the requirements implicit in clause (5) of Article 22 of the Constitution (Shaik Hanif's case, supra). So placingthe burden on the respondent follows the fundamental assumptionwhich underlies the law of habeas corpus, namely, that the restraintof freedom should only be permitted where the party restraining canclearly show justification. (Sharp : The Law of Habeas Corpus(1976) p. 88).
(28) The writ of habeas corpus brings prisoners before the Courtand requires the jailor to show the basis of his custody. It has traditionally held a special place in the history of the protection of personal freedom in English law as well as in our law. It is, however,no greater a protector of that freedom than the judges' view of whatconstitutes lawful custody. 'The difference between a constitutionalorder and an authoritarian regime lies in the court's power and willingness to evaluate for itself the stated basis for custody, under legalprinciples to which the custodian and committing authorities are subject'.(Legal Values in Western Society-Stein & Shand (1974) p.149).Ultimately the efficacy of the writ will depend upon the independence of the courts and other bodies charged with ensuring that thelaw prevails. 'Independence' is indeed almost too bland a word todescribe the quality required of them, for they must if necessary, standin opposition to the Government or any other organ of the State evenin the throes of crisis. Yet the true judicial character is a thing ofspirit rather than law and, like a star, though always present, shinesmost in darkness.
(29) For these reasons we accept the petition and make the ruleabsolute against respondents 1, 2, 3 and 4. We discharge the ruleagainst respondents 5, 6 and 7 as it has not been shown to us that they have had anything to do with this matter.At the conclusion of the hearing we announced the judgment,issued the writ and ordered respondents 1, 2, 3 and 4 to set the petitioner at liberty forthwith. Now we have given our reasons.
(30) We were informed by the petitioner at the hearing that inconnection with his arrest in the investigation of Fir 26 of 1977dated 26/01/1977 Police Station Srinivaspuri, New Delhi, hehad already been granted bail and that he had furnished the bailbond and the surety which the court had accepted. That being sowe directed that the petitioner be set at liberty at once.
(31) Before we conclude we would like to record our thanks toMr. R. K. Jain, Advocate who appeared amices curiae on behalf ofthe petitioner and argued the case with great ability.