Skip to content


Fathima Beebi Vs. M.K. Ravindranathan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 4357 of 1974
Judge
Reported inAIR1975Ker202
ActsConstitution of India - Articles 123 and 213
AppellantFathima Beebi
RespondentM.K. Ravindranathan and ors.
Appellant Advocate Kalathil Velayudhan Nair,; V.S. Moothathu,; N.R.K. Nair
Respondent Advocate M.K. Ravindranathan, Adv.
DispositionPetition dismissed
Cases ReferredJaichand Lal Sethia v. State of West Bengal
Excerpt:
.....detention different from section 3 (1) (c) - classification of detenues reasonable and valid. (ii) detention - articles 14, 22 (5) and 352 of constitution of india and ordinance 11 of 1974 - validity of detention order challenged on ground of failure to supply grounds of detention under article 22 (5) - right under article 22 (5) cannot be enforced during proclamation of emergency in force - petition dismissed. - - he submitted that ordinance 11 of 1974 promulgated by the president in purported exercise of the power conferred by article 123 of the constitution is invalid because there were no circumstances or materials available before the president which could have satisfied the president of the necessity of passing such an ordinance at that time. 233. the only way in which the..........air 1967 sc 483. we said that in both the decisions, the court was concerned with orders of detention passed under the defence of india rules which did not contain any provision at all for furnishing the detenu with the grounds of detention. we therefore observed that the 'grounds' referred to in the passages in those judgments relied on by the petitioner's counsel, are not the grounds furnished to the detenu under any provision corresponding to article 22(5), but only the reasons for detention mentioned in the order of detention itself. we further emphasised in paragraph 22 that 'any contention based on the failure to furnish to the detenu the grounds of detention or even the defects in the grounds furnished will not be, available to the detenu since the obligation to furnish.....
Judgment:

Govindan Nair, C.J.

1. This petition has now come up to be dealt with on the merits. By our judgment D/- 27-11-1974 we upheld the preliminary objection raised by counsel on behalf of the Central Government that arguments based on rights arising out of the provisions in Articles 14 and 22(5) of the Constitution are not available to the petitioner for challenging either the order of detention or the Presidential Order under Article 359(1) of the Constitution.

2. Counsel on behalf of the petitioner, Sri K. Velayudhan Nair urged four points before us in further arguments. He submitted that Ordinance 11 of 1974 promulgated by the President in purported exercise of the power conferred by Article 123 of the Constitution is invalid because there were no circumstances or materials available before the President which could have satisfied the President of the necessity of passing such an Ordinance at that time. He relied on the averments in paragraphs 12 to 14 of the petition in support of his submission. We do not think that the satisfaction of the President is a justiciable issue. This Court cannot consider whether the President was Justified or not in passing an Ordinance under Article 123 of the Constitution. Justice Ray, as he then was, dealt with this matter in Rustom Cavasiee Cooper y. Union of India, AIR 1970 SC 564 in his dissenting judgment in paragraph 233 at page 644. We shall extract that paragraph:

'233. The only way in which the exercise of power by the President can be challenged is by establishing bad faith or mala fide and corrupt motive. Bad faith will destroy any action. Such bad faith will be a matter to be established by a party propounding bad faith. He should affirm the state of facts. He is not only to allege the same but also to prove it. In the present case there is no allegation of mala fide.'

Later on in the same judgment, the learned Judge observed;

'The reason is obvious that in matters of policy just as Parliament is the master of its province similarly the President is the supreme and sole judge of his satisfaction on such policy matters on the advice of the Government'.

The question was not considered by the majority as the case had been disposed of by the majority on the basis of the conclusions reached on other points. The Supreme Court had occasion to deal with the matter again in a recent pronouncement in S. K. G. Sugar Ltd- v. State of Bihar. AIR 1974 SC 1533. Paragraphs 15 and 16 of the judgment may be usefully read:

'15. We shall take the last contention first. Barring those cases where the Governor has to obtain previous instructions from the President, the Governor's power to promulgate ordinances under Article 213 is subject to the conditions, namely:

(a) that the house or houses, as the case may be, of the State Legislature must not be in session when the Ordinance is issued; and

(b) the Governor must be satisfied as to the existence of circumstances which' render it necessary for him to take immediate action.

16. There is no dispute with regard to the satisfaction of the first condition. Existence of condition (b) only is questioned. It is however well settled that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole Judge as to the existence of the circumstances necessitating the making of an Ordinance. His satisfaction is not a Justiciable matter. It cannot be questioned on ground of error of Judgment or otherwise in court -- see State of Punjab v. Satya Pal Dang, (1969) 1 SCR 478 = (AIR 1969 SC 903). The contention is devoid of merit. Moreover, after the coming into force of the President's Act 8 of 1969, this question had become merely academic.'

3. The power exercised by the, President under article 123 of the Constitution is akin to the power exercised by the Governor under article 213 and while acting under those articles the President and the Governor are exercising a legislative power, Legislative power would normally reflect policies of the Government. Such policy matters are essentially, we think exclusively, within the purview of the Parliament and the legislatures, and the authorities on whom by virtue of the provisions in the Constitution similar legislative powers have been conferred to be exercised in given circumstances. We cannot therefore consider the need or the wisdom of the measure or even whether the President was justifiably satisfied.

4. Counsel on behalf of the petitioner, Sri. Velayudhan Nair however contended that the observations of Justice Ray which we have quoted would enable him to sustain his ground that the Ordinance is still bad as according to him it was in effect a mala fide exercise of power by the President. He relied on the averments in paragraphs 13 and 14 of the petition which we may extract in full:

'13. The promulgation of the Ordinance by the President was at the instance of the Government of India. The action of Government of India in persuading the President of India to promulgate the Ordinance was mala fide inasmuch as the action taken was not on the basis of relevant circumstances but as a vindictive measure for collateral and political purposes against Sri K.S. Abdulla and others.

14. It was widely reported in the newspapers throughout India that the President of India promulgated the Ordinance deviating from the normal practice that is to say promulgating the Ordinance On the advice by the Union Cabinet. It was reported that the Union Cabinet was informed about the promulgation of the Ordinance only after the Ordinance was got signed by the President of India. Evidently the Ordinance was promulgated not at the instance of the Union Cabinet. This also would go to show that the issuance of the Ordinance was not bona fide,'

What is stated in paragraph 13 which proceeds on the basis that the Ordinance was promulgated on the advice of the Union Cabinet is inconsistent with what is stated in paragraph 14 and no court can possibly rely on such inconsistent averments for holding that such an important function as that conferred by Article 123 of the Constitution had been exercised mala fide. The very passage which we have quoted would establish that the plea of mala fides put forward must not only be specifically pleaded but must be proved by the person making the averment of mala fides. In this case there are no clear averments much less, proof. The averments in paragraph 14 are far too vague. The proof and the pleadings necessary in such matters have been the subject-matter of judicial pronouncements. As in the case of fraud, in other invalidating circumstances as well, it is necessary that the pleading should be very specific. A plea of mala fide is one such wherein the strict requirements insisted upon in the matter of fraud should be applied. The matter is beyond controversy as it has been dealt with by the Supreme Court in its decision in The Union of India v. Pandurang Kashinath More, AIR 1962 SC 630. We shall extract paragraphs 9 and 10 therein which are instructive:

'(9) The real question is, was the High Court justified in its conclusion that as the pleadings stood, the appellant must be deemed to have been admitted that the respondent had been 'arbitrarily picked up and sacked', that is to say had been subjected to hostile discrimination. It is necessary now to refer to the pleadings. In the plaint the following statements occur:

'The plaintiff submits that orders for suspension and removal or dismissal are illegal and void and ineffective in law for the following reasons:-- (g) The order of removal is in violation of Articles 14 and 16 of the Constitution inasmuch as the plaintiff was arbitrarily picked up and sacked.'

In the written statement this allegation in the plaint was dealt with in the following words:

'The defendant denies that the order of removal is in violation of Articles 14, and 16 of the Constitution.' The High Court thought that this was not a sufficient denial. We are unable to agree with that view.

(1) First, we do not think that the plaint contains a sufficient allegation of discrimination. It is well known that when an improper conduct is alleged, it must be set out with all particulars. In Wallingford v Mutual Society, (1880) 5 AC 685 (697) Lord Selborne observed: 'With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice.'

We think what was said about fraud would equally apply to any improper conduct: see Bharat Dharma Syndicate v. Harish Chandra, 64 Ind App 143 (147) = (AIR 1937 PC 146 (148)).' The pleadings contained in paragraphs 13 and 14 are not only inadequate but totally insufficient for sustaining any plea that the exercise of power by the President was mala fide.

The argument that all the averments in paragraphs 13 and 14 have not been denied because sufficient facts have not been stated in the counter-affidavit cannot also be accepted. The reply is in paragraph 11 of the counter-affidavit filed on behalf of the Union of India and each and every submission and allegations of fact contained in paragraphs 11 to 14 of the petition relating to the alleged invalidity of the Ordinance promulgated by the President have been denied.

5. In the light of the above discussion, we unhesitatingly reject the contention put forward by counsel.

6. It was next contended that the Ordinance was violative of Article 14 of the Constitution. The argument was elaborated by stating that the special treatment that has been meted out to those detained under Section 3 (1) (c) of the Maintenance of Internal Security Act, 1971 and Ordinance 11 of 1974 was unjustified and that such treatment has no relevance to the object sought to be achieved by the statute. We are not able to accept this contention either. The detention for the purpose of preventing smuggling or attempting to smuggle or abetting to smuggle or attempting to abet smuggling we think, stands on a different footing from the detention for the other purposes mentioned in Section 3 of the Act. The classification has relevance to the objects of the Act. We negative this contention. Apart from this, the President having passed the order under article 359(1) denying the right to move any court to enforce the fundamental rights guaranteed under article 14 of the Constitution in cases where persons have been detained under Section 3 (1) (c) of the Maintenance of Internal Security Act. 1971, it is not open to the petitioner to even urge this contention. The matter is concluded against the petitioner by the decision of the Supreme Court in Mohd. Yaqub v. State of Jammu and Kashmir, AIR 1968 SC 765.

7. Reliance was then placed on paragraph 14 of our judgment in this case dated 27th November, 1974, and counsel contended that the incidents mentioned in the grounds served on the 'detenu had no proximate connection with the order of detention in point of time and this was a valid ground that he could urge on the basis of what was said in paragraph 14 of our judgment dated 27th November. 1974. We do not think that what we have stated in paragraph 14 will enable counsel to advance such an argument. Further paragraph 14 must be read along with paragraphs 12 and 13. The submission made by counsel arises, we think, from a complete mis-understanding of what we have said in the judgment, dealing with the two decisions of the Supreme Court in Durgadas Shirali v. Union of India, AIR 1966 SC 1078 and in Jaichand Lal Sethia v. State of West Bengal, AIR 1967 SC 483. We said that in both the decisions, the court was concerned with orders of detention passed under the Defence of India Rules which did not contain any provision at all for furnishing the detenu with the grounds of detention. We therefore observed that the 'grounds' referred to in the passages in those judgments relied on by the petitioner's counsel, are not the grounds furnished to the detenu under any provision corresponding to Article 22(5), but only the reasons for detention mentioned in the order of detention itself. We further emphasised in paragraph 22 that 'any contention based on the failure to furnish to the detenu the grounds of detention or even the defects in the grounds furnished will not be, available to the detenu since the obligation to furnish grounds stems from Article 22(5).' We also took the view that such rights, whether embodied in the Constitution, or incorporated in view of the provisions in the Constitution, in any Act, will not be available for a period of six months from the date of issue of the Presidential Order or the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 of the Constitution on the. 3rd December, 1971, is in force, whichever period expires earlier. This contention also must therefore fail. In view of the fact that counsel has urged such a point based on our observation in paragraph 14 of our judgment dated 27th November, 1974, we have taken pains to clarify the position with reference to what we have said in other paragraphs of that judgment and we make it clear that the plea that the incidents mentioned in the grounds furnished to a detenu under Article 22(5) of the Constitution read with Section 8 (1) of the Maintenance of Internal Security Act, 1971 have no proximate connection in point of time with the order of detention is not available to a detenu in view of the suspension of the right to move a court to establish the rights conferred by Article 22(5).

8. Lastly it was contended that the detention is bad in law since the Act contemplates only one order being passed by one of the authorities; but that there have been two orders of detention in the case: one by the Additional District Magistrate and Deputy Collector (Central) Cannanore, and the other by the Central Government, Exts. P1 and P3 respectively. Ext. PI order was passed on 20-9-1974 and the detenu was arrested on 24-9-1974. In the meantime the other order Ext. P-3 was passed by the Central Government on 21st of September, 1974. The argument was that in view of the order Ext. P3, the order Ext. PI had become ineffective and there has been no detention pursuant to the order Ext. P3. This contention was in addition to the submission that there cannot be more than one order, The Section under which a detention order can be passed is Section 3 of the Maintenance of Internal Security Act, 1971. That section confers power to the Central Government or the State Government to make an order under Sub-section (1) thereof and Sub-section (2) confers power to the officers mentioned in that section also to pass the order of detention if satisfied of the requirements in Sub-clauses (ii) and (iii) of Clause (a) of Sub-section (1). We do not think that the statutory provisions inhibit the passing of more than one order. It may be that a State Government was in possession of information justifying the passing of an order of detention under Section 3 (1) (c). It is conceivable that the Central Government may also have information before it justifying the passing of an order of detention of the same person. If in such circumstances the Central Government passed an order of detention independently of the order passed by the State Government, the order of the Central Government cannot have the effect of wiping out the order passed by the State Government. On the facts of this particular case it may be noted that when Ext. P-3 order was passed, there was necessity for detention because the detenu had not been taken into custody on the date of the order, namely. 21-9-1974 though the State Government had passed the order of detention on 20-9-1974. We therefore negative this submission also.

9. In the light of the above discussion, we dismiss this petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //