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Thampan Thomas Vs. the State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 3591 of 1975
Judge
Reported inAIR1976Ker94
ActsMaintenance of Internal Security Act, 1971 - Sections 3, 16(3) and 18; Maintenance of Internal Security (Amendment) Act, 1975 - Sections 16(A)(7); Constitutuion of India - Article 14, 21, 22, 31(B) and 359; Kerala Security Prisoners Order, 1975
AppellantThampan Thomas
RespondentThe State of Kerala and anr.
Appellant AdvocateParty in person
Respondent AdvocateAddl. Adv. General
DispositionPetition dismissed
Excerpt:
constitution - detention - section 16-a (3) of maintenance of internal security act, 1971 - detention order under attack on ground that grounds of detention not informed to petitioner - impugned order not detention order alone but also declaration under section 16-a (3) - under declaration petitioner not entitled to have grounds of detention disclosed to him nor entitled to make any representation as regards to detention - held, petition not entertainable. - - this court negatived the contention that section 5 of the act is bad for excessive delegation of legislative power. p-1 as marked by the petitioner is not the detention order alone, but also the declaration made by the 2nd respondent under sub-section (3) of section 16-a of the maintenance of internal security act, 1971...........who has taken notice of this petition. the petitioner is a detenu under the maintenance of internal security act, 1971. he prays for a writ of certiorari quashing ext. p-1 detention order passed by the 2nd respondent; he also prove for a writ of mandamus or other writ, order or direction compelling the 1st respondent, the state of kerala, to dispose of ext. p-2 representations. there is also prayer that this court should direct the 1st respondent to give the petitioner and other 'misa prisoners' a class facilities; the petitioner further prays for a writ of certiorai or order or direction quashing the kerala security prisoners order 1975; another relief sought for by the petitioner is for a declaration that the kerala security prisoners order 1975 is ultra vires the constitution.....
Judgment:

George Vadakkel, J.

1. Arguments were heard as to the entertainability of this petition both of the petitioners in person and of the learned Additional Advocate-General who has taken notice of this petition. The petitioner is a detenu under the Maintenance of Internal Security Act, 1971. He prays for a writ of certiorari quashing Ext. P-1 detention order passed by the 2nd respondent; he also prove for a writ of mandamus or other writ, order or direction compelling the 1st respondent, the State of Kerala, to dispose of Ext. P-2 representations. There is also prayer that this Court should direct the 1st respondent to give the petitioner and other 'MISA prisoners' A Class facilities; the petitioner further prays for a writ of certiorai or order or direction quashing the Kerala Security Prisoners Order 1975; another relief sought for by the petitioner is for a declaration that the Kerala Security Prisoners Order 1975 is ultra vires the Constitution of India; he also seeks a declaration that 'the MISA Ordinance, 1975 is ultra vires to the Constitution of India'. These are the reliefs sought for by the petitioner besides the, general relief contained in relief (f) which is for the issuance of such other Writ order or directions which this Court may deem, fit and necessary.

2. Taking up the relief cought for as to declaration of the MISA Ordinance, 1975 as ultra vires the 'Constitution of India: the two Ordinances that were promulgated in 1975 amending the Maintenance of Internal Security Act, 1971 are the Maintenance of Internal Security (Amendment) Ordinance, 1975 (No. 4 of 1975) and the Maintenance of Internal Security (Second Amendment) Ordinance, 1975 (No. 7 of 1975), the former dated 5th July, 1975 and the latter dated 22nd July, 1975. I need not consider this relief in so far as the Maintenance of Internal Security Act as amended by the aforesaid Ordinances has been now included in the Ninth Schedule to the Constitution of India by the Thirtyninth Amendment to the Constitution which has obtained Presidential sanction on 10-8-1975. The petitioner is not, therefore, entitled to relief (e).

3. Coming to the relief is regards the declaration sought for that the Kerala Security Prisoners Order, 1975 is ultra vires the Constitution of India, again in so far as the Maintenance of Internal Security Act, 1971 as amended by the two Ordinances already referred to has been included in the Ninth Schedule to the Constitution as already stated. Section 5 of that Act is immune from anyattack, The Kerala Security Prisoners Order, 1975 has been passed by power conferred by Section 5 of the Maintenance of Internal Security Act, 1971 on the 1st respondent State. Even otherwise a Division Bench of this Court in O. P. No. 2737 of 1972 (Ker) has upheld the Constitutional validity of Section 5 of the Maintenance of Internal Security Act. This Court negatived the contention that Section 5 of the Act is bad for excessive delegation of legislative power. And possibly the petitioner could not attack the Security Prisoners Order 1975, (even apart from, the fact that the Act itself is now included in the Ninth Schedule to the Constitution) relying on Article 14 of the Constitution in so far as the petitioner's right to move this Court for the enforcement of the rights conferred by Article 14 has been taken away by the Presidential Order G. S. R. 361 (E) dated 27th June 1975. The petitioner is, therefore, not entitled to reliefs (c) and (d) set out in the petition.

4. Ext. P-1 order was issued by the 2nd respondent under Section 3 of the Maintenance of Internal Security Act. The main ground urged in the petition and the argument advanced before me in respect of relief (a) praying that a writ of certiorari be issued quashing Ext P-l order are that grounds for his detention have not been communicated to the petitioner. It is his case in ground No. (3) in this petition that since grounds of detention have not been intimated to him, he is disabled from filing any representations before the Advisory Board and thus he is deprived of an opportunity to file representations which the statute allows. It is, therefore, contended in the petition and before me that the denial of the remedy that has been conferred upon him statu-torily is a violation of the statute itself.

5. The learned Additional Advocate-General brought to my notice that Ext. P-1 as marked by the petitioner is not the detention order alone, but also the declaration made by the 2nd respondent under Sub-section (3) of Section 16-A of the Maintenance of Internal Security Act, 1971. Sub-section (3) of Section 16-A provides that when making an order of detention under the Maintenance of Internal Security Act against any person the authority passing that order of detention shall also consider whether the detention of such person under that Act is necessary for dealing effectively with the emergency and that if on such consideration that authority is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that authority shall also make a declaration to that effect and communicate a copy of that declaration to the person concerned. The second document herein which is also marked as 'Ext. P-1 continued' in such a declaration made by the 2nd respondent. By Ordinance No. 7 of 1975 to which I have already adverted to Sub-section (7) of Section 16-A as it stood prior to the date of promulgation of Ordinance No. 7 of 1975 was amended, the effect of which amendment is that in the case of a person detained under a detention order to which Section 16-A (3) would apply in that he is a person in respect of whom a declaration has been made under Section 16-A (3), Sub-sections (3) and (4) of Section 3 as it is obtained would stand substituted by:

'(3) When any order of detention is made by a State Government or by an officer subordinate to it, the State Government shall, within twenty days, forward to the Central Government a report in respect of the order.' The same provision also says that Sections 8 to 12 of the Act shall not apply to such a case. The result of the aforesaid amendment would be that the petitioner would not be entitled to rely on Sub-sections (3) and (4) of Section 3 as also on Sections 8 to 12 of the Act. It is under Section 8 of the Act that a detenu is entitled to be informed of the grounds on which the order of detention has been made as also such other particulars as in the opinion of the authority making the order of detention have a bearing on the matter. It is the same provision that entitles a detenu to make representation against the order of detention to the appropriate Government. In view of the fact that Section 8 is not available to the petitioner he is not entitled to be informed of the grounds of detention nor is he entitled to make representations as regards his detention. In view of the discussion above made the petitioner is not entitled to reliefs (a) or (b).

6- Beset with these difficulties, the petitioner advanced an argument, that Ext. P-l detention order was passed and the declaration was made mala fide. The foundation for this argument is set out in ground No. 1 as:--

'1. The detention of the petitioner is mala fide and with ulterior motives. A no-confidence motion against the President of the Kerala State Consumer Cooperative Federation was being arrangedto be moved and Government officials had participated in the earlier voting and under Section 20 of Kerala Co-operative Societies Act they could participate in the voting and there was every chance for the petitioner to win the elections. The petitioner is not an office-bearer of any political party or organisations which are banned. Even persons who have defied Government's order are released but petitioner is kept in custody. This is clearly with mala fide intentions and ulterior motives.'

Such laconic and bare averments without any details as to against whom mala fides is attributed and as to the circumstances that may probabilise a case of mala fide action by some one would not justify me in calling upon the respondents to answer them. This is more so in view of the several stringent provisions of the Act which require a hierarchy of high authorities such as the State Government and Central Government examining and reconsidering the question of detention and the need for continuing the detention at intervals not exceeding 4 months. See for example the proviso to Section 16-A (3), Sub-section (4) of that section and Section 3 (3) as amended by Section 16-A (7). It should also be borne in mind that the petitioner is not entitled to have the ground of detention disclosed to him, and that necessarily therefore the respondents could not be compelled to reveal to the petitioner these grounds of detention by calling upon them to answer petitioner's averment regarding mala fides. In the absence of any specific averments of mala fides, I need not examine the further question as to whether the respondents are bound to satisfy the Court (without revealing to the petitioner) that they have acted without any bad faith. There is no merit in the argument that the respondents were motivated by bad faith and I repel the same.

7. The only other relief sought for by the petitioner that remains to be considered is that himself and other 'MISA prisoners' should be given A Class facilities.

8. In O. P. No. 3590 of 1975 (Ker) which I have just now disposed of I have held that a detenu could not, by reason of the Presidential Order of 27th June, 1975 already adverted to, place any reliance on Articles 14, 21 and 22 in support of his claim for better facilities and amenities in the place of detention. Therein I also held that he would not, by the very nature of detention be in a position toexercise the freedoms guaranteed by Clauses (b) to (e) and (g) of Article 19(1) of the Constitution as decided by a Division Bench of this Court in O. P. No. 2737 of 1972, and that the other two clauses of Article 19(1) -- Clauses (a) and (f) --would not be of any assistance to seek better facilities or amenities. I further held that assuming that a citizen has any common law right or natural law right apart from the rights guaranteed by the Constitution, a detenu under the Maintenance of Internal Security Act could not fall back upon these rights to claim better amenities in view of Section 18 introduced into that Act by Ordinance No. 7 of 1975. These principles govern the case on hand, and the petitioner is not entitled to a direction to give A Class facilities to petitioners and other 'MISA prisoners'.

9. The petition is not entertain-able. No rule nisi is called for and this original petition is dismissed.

Carbon copies of this judgment will be furnished to the petitioner and also to the learned Additional Advocate General free of charges.


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