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M.M. Thomas Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1976CriLJ1146
AppellantM.M. Thomas
RespondentUnion of India (Uoi) and ors.
Cases ReferredShaik Hanif v. State of W.B.
Excerpt:
.....of the maintenance of internal security (amendment) ordinance, 1975, the central government or the state government, or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this act is necessary for dealing effectively with the emergency and if, on such consideration, the central government or, as the case may be, the state government or the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned: (4) the question whether the detention of any person in respect of whom a declaration has been made under sub-section (2) or sub-section (3)..........by the 3rd respondent it is submitted at the bar by the learned addl. advocate general that the state government has forwarded to the central government a report in respect of ext. p-1 order of detention on 19-7-1975.4. the main argument advanced by the learned counsel for the petitioner is that ext p-1 order does not contain the declaration contemplated by section 16-a (3) of the act and that therefore ext. p-1 order of detention would be governed by sub-section (3) of section 3 of the act as it has to be read but for sub-section (7) of section 16-a of the act. section 3 (1) of the act enables the central government or the state government in circumstances stated therein to direct a person to be detained; sub-section (2) thereof enables any of the officers made mention of therein and.....
Judgment:
ORDER

George Vadakkel, J.

1. The learned Additional Advocate-General has taken notice of this petition and submits that no rule nisi could be issued in this case in view of the Presidential Proclamation under Article 352(1) of the Constitution of India as also in view of the Presidential order under Article 359(1) of the Constitution. The question of entertainability of this petition was argued at length by counsel on both sides.

2. The reliefs sought for in this petition by the petitioner, a detenu under the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the Act) are:

(i) to call the records kept by respondents 2 to 3 leading to Exts. P-1, P-2 and P-3 and quash them by issuance of a writ of certiorari or other appropriate writ order or direction;

(ii) to quash Section 3 of the Maintenance of Internal Security Act, 1971 as amended by a writ of certiorari or other appropriate writ as an instance of excessive and arbitrary legislation;

(iii) to issue an interim stay of operation of Ext. P-1 order and direct the release of the petitioner pending the disposal of the original petition; and

(iv) to allow this original petition with costs to be realised from the respondents.

So far as reliefs (iii) and (iv) are concerned they are consequential reliefs for interim order and a general prayer to allow the original petition; the learned Counsel for the petitioner candidly admitted that in view of the Thirtyninth Amendment to the Constitution Which has obtained the Presidential sanction (as reported in the newspapers) whereby the Act has been included in the Ninth Schedule to the Constitution, he is unable to press for the Second relief; the only relief, therefore, that remains to be considered is the first relief, viz., as to whether the petitioner could seek a writ of certiorari quashing Ext. P-1 order of detention, Ext. P-2 declaration and Ext. P-3 order confirming Ext. P-1 order.

3. By Ext. P-1 order the 3rd respondent, invoking the power conferred on him by Section 3 of the Act directed that tile petitioner be detained and kept in custody in the Central Prison, Trichur. That order is dated 12-7-1975. On the same day he passed under the same number Ext P-2 declaration whereby he in exercise of his powers conferred on him by Sub-section [3) of Section 16-A of the Act declared that it is necessary to detain the petitioner for effectively dealing with the emergency in respect of which the proclamations of emergency under Clause (1) of Article 352 of the Constitution of India dated 3rd December, 1'971 and 25th June, 1975 have been issued. In that order the 3rd respondent said that in the light of the materials placed before him he considered, whether the detention of the petitioner under the Act was necessary for dealing effectively with the aforesaid emergency and came to the conclusion that on such consideration he was satisfied that it was necessary to detain the petitioner for effectively dealing with the said emergency. By Ext. P-3 order the Government after consideration on review confirmed Ext. P-2 declaration issued by the 3rd respondent It is submitted at the bar by the learned Addl. Advocate General that the State Government has forwarded to the Central Government a report in respect of Ext. P-1 order of detention on 19-7-1975.

4. The main argument advanced by the learned Counsel for the petitioner is that Ext P-1 order does not contain the declaration contemplated by Section 16-A (3) of the Act and that therefore Ext. P-1 order of detention would be governed by Sub-section (3) of Section 3 of the Act as it has to be read but for Sub-section (7) of Section 16-A of the Act. Section 3 (1) of the Act enables the Central Government or the State Government in circumstances stated therein to direct a person to be detained; Sub-section (2) thereof enables any of the officers made mention of therein and in the circumstances stated therein to exercise the same power. Sub-section (3) reads:

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 is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government:

Provided that where under Section 8 the grounds of detention are communicated by the authority making the order after five days but not later than fifteen days from the date of detention, this subsection shall apply subject to the modification that for the words 'twelve days', the words 'twenty-two days' shall be substituted.

It is also necessary to read the relevant portions of Section 16-A introduced into the Act as per the Maintenance of Internal Security (Amendment) Ordinance, 1975 (No. 4 of 1975):

16-A. Special provisions for dealing with emergency.- (1) Notwithstanding anything contained in this Act or any rules of natural justice, the provisions of this section shall have effect during the period of operation of the Proclamation of Emergency issued under Clause (1) of Article 352 of the Constitution on the 3rd day of December, 1971, or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of twelve months from the 25th day of June, 1975, whichever period is the shortest.

xxx xxx xxx(3) When making an order of detention under this Act against any person after the commencement of the Maintenance of Internal Security (Amendment) Ordinance, 1975, the Central Government or the State Government, or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if, on such consideration, the Central Government or, as the case may be, the State Government or the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned:

Provided that where such declaration is made by an officer, it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government, after such review, within the said period of fifteen days.

(4) The question whether the detention of any person in respect of whom a declaration has been made under Sub-section (2) or Sub-section (3) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months, and if, on such reconsideration, it appears to the appropriate Government that the detention of the person is no longer necessary for effectively dealing with the emergency, that Government may revoke the declaration.

(5) In making any review, consideration or reconsideration under Sub-section (2), (3) or (4), the appropriate Government or officer may, if such Government or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned.

(6) xxx xxx xxx(7) In the case of every person detained under a detention order to which the provisions of Sub-section (3) apply, being a person in respect of whom a declaration has been made under that subsection,-

(i) Section 3 shall apply subject to the modification that for Sub-sections (3) and (4) thereof, the following sub-section shall be substituted, namely:

(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;(ii) Sections 8 to 12 shall not apply; and

(iii) Section 13 shall apply subject to the modification that the words and figures 'which has been confirmed under Section 12' shall be omitted.

It is also necessary to read Section 18:No person (including a foreigner) detained under the Act shall have right to personal liberty by virtue of natural law or common law, if any.

5. The provisions in Section 16-A read above were introduced by Ordinance No. 4 of 1975 as already mentioned and by a further amendment of that Ordinance as per Ordinance No. 7 of 1975. As on today the provisions stand as read above.

6. The main argument advanced centred round the construction of Sub-section (3) of Section 16-A read above. According to the learned Counsel for the petitioner, the order of detention made under Section 3 of the Act unless it also contains the declaration contemplated by Sub-section (3) of Section 16-A could only be treated as an order to which Sub-section (7) of Section 16-A read above would not apply; to such an order, according to the learned Counsel, Sub-section (3) of Section 3 of the Act would be attracted. On that basis it is submitted that Ext. P-1 order would not remain in force for more than 12 days after the making thereof unless in the meantime the same had been approved by the State Government. What is pointed out is that as per Ext. P-3 order what is confirmed is not Ext. P-1 order but Ext. P-2 declaration. On that premise it is argued that Ext. P-1 order of detention having not been confirmed as contemplated by Sub-section (3) of Section 3 within the period prescribed therein, has spent itself out after the expiry of the period prescribed in that section. I am unable to subscribe to the argument advanced by the learned Counsel for the petitioner. Under Sub-section (3) of Section 16-A which I have already read above the Central Government or the State Government, or, as the case may be, the officer making the order of detention (under Section 3 of the Act) has to consider whether the detention of the person ordered to be detained under the Act is necessary for dealing effectively with the emergency. This the concerned Government or the officer has to consider 'when making an order of detention under' the Act. And if the concerned Government or the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect. A copy of that declaration has to be communicated to the concerned person also. On a reading of Sub-section (3) of Section 16-A it is clear beyond doubt that an order of detention made under Section 3 of the Act and a declaration that it is necessary to detain the person so ordered to be detained under Section 3 for effectively dealing with the emergency - declaration made under Sub-section (3) of Sec-tion 16-A - are entirely different and separate. On a consideration as to whether a declaration has to be made or not, the concerned Government or the officer may not be satisfied that such a declaration is necessary, or he may be satisfied. Even in the first case the person could be detained by an order made under Section 3 of the Act. It is only in the latter case that a declaration should follow the detention order. This has been satisfied in this case. Ext. P-1 is the detention order; this was followed up by Ext. P-2 declaration as contemplated by subjection (3) of Section 16-A; a copy thereof was communicated to the petitioner as is evident from Ext. P-2. I see no merit in the first contention raised by the learned Counsel for the petitioner.

7. Based on Article 25(1) of the Constitution some arguments were advanced as to whether the detention order would be contrary to Article 25(1). However, the same was not pursued since in the opinion of the learned Counsel for the petitioner that argument would not be available to him in view of the inclusion of the Act in the Ninth Schedule as per the Thirty-ninth Amendment of the Constitution.

8. Referring to paragraphs 6 and 7 as also to Ground H in the petition the learned Counsel for the petitioner sought to make out a case of mala fides and it was argued that if the petitioner establishes a case of mala fides this Court would enquire into that aspect in exercise of its powers under Article 226 of the Constitution in spite of the fact that the right of the petitioner to move this Court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution remains suspended for the period during which the proclamation of emergency is in force as per the Presidential Proclamation under Article 359(1) of the Constitution. The learned Counsel in that connection relied on the decision of the Supreme Court in Ananda Nambiar v. Chief Secy. to the Govt. of Madras : 1966CriLJ586 and of the Madras High Court in Karunanidhi v. Asst Police Commr. : AIR1968Mad54 . Whatever be the position and even if in spite of the suspension of the petitioner's right to move for enforcement of the rights under Articles 14, 21 and 22 of the Constitution he could raise the question of mala fides (it is contended on behalf of respondents that this Court held in Fathima Beebi v. Ravindranathan 1975 Ker LT 224 : 1975 Cri LJ 1164 that Article 22 is a self-contained Code in that the common law right if any in that behalf got enshrined in that Constitutional provision) I do not think that the averments contained in paragraphs 6 and 7 of the petition as also Ground (h) make out any case of mala fides. In paragraph 6 the petitioner avers that in so far as the political party of which he is a member has not been banned Ext. P-1 order and Ext. P-2 declaration were made mala fide. In paragraph 7 the petitioner's case is that several other persons who are members of the political party of which the petitioner is also a member have been arrested in the several districts in the State by the concerned District Magistrates on the same date and that it was unlikely that the several District Magistrates would have been satisfied in respect of those several persons that they have acted prejudicially to the security of India or to the maintenance of public order simultaneously. And in Ground (h) the above fact is again reiterated and it has been averred that the 3rd respondent has not independently exercised his jurisdiction but has exercised the same on account of the influence of the ruling political parties who nurture illwill and malice towards the petitioner, he being a member of the political party to which he belongs. The averments are bald averments. There is nothing to substantiate the same. I do not think that mere 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 fides would justify me in calling upon the respondents to answer them; this is particularly so in view of the stringent provisions like Section 3 (3) as amended by Section 16-A (7), Section 16-A (4) and the proviso to Section 16-A (3) of the Act which require the State and Central Governments to examine as also to reconsider at intervals not exceeding four months the question of detention and the need for continuing the detention; I should also bear in mind the fact that a detenu like the petitioner is not entitled to have the grounds disclosed to him. Moreover in view of the introduction of Section 18 into the Act (which I have already read) even if the petitioner had apart from Articles 21 and 22 of the Constitution, any right for the protection of which he can approach this Court, those rights also have been taken away from him. That section provides that no person detained under the Act shall have any right to personal liberty by virtue of natural law or common law. I see no merit in the argument founded on mala fides.

9. The learned Counsel for the petitioner invited, my attention to the decision of the Supreme Court in Shaik Hanif v. State of W.B. : 1974CriLJ606 , particularly to the passage in paragraph 10 thereof wherein that Court said that since the Act restricts citizens' personal liberty which is a fundamental right under the Constitution, the provisions thereof have to be construed strictly, as far as possible in favour of the citizen, and in a manner that does not restrict that right to an extent greater than is necessary to effectuate that object. That decision proceeds to say that the provisions of the Act have, therefore, to be applied with watchful care and circumspection. It was also pointed out therein that it is Hie duty of the Court to see that the efficacy of the limited, yet crucial, safeguards provided in the law of preventive detention is not lost in mechanical routine, dull casualness and chill indifference on the part of the authorities entrusted with their application. There can be no doubt that it is so. I have endeavoured to scrutinise the provisions of the Act and the facts obtained in the case in the light of the observations made in the aforesaid decisions. However, nothing has been brought to my mind which would entitle the petitioner to a rule nisi.

10. I dismiss this petition.


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