B.J. Divan, C.J.
1. In these two matters where before the Division Bench consisting of J. B. Mehta and P. D. Desai JJ. certain common questions of law regarding the validity and extent of operation of Section 5-A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, hereinafter referred to as 'the COFEPOSA Act) arose, the Division Bench felt that fundamental questions of widest amplitude had been raised in order to challenge the vires of Section 5-A and so the Division Bench decided that in view of the importance of the matter, the following two questions should be referred to a larger Bench.
(1) Whether Section 5-A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is retroactive so as to apply to orders of detention passed on or before July 1, 1975?
(2) If so, whether it is ultra vires, either because it impinges upon the power of judicial review and impairs the jurisdiction of the High Court under Article 226 of the Constitution; or it encroaches upon or interferes with the judicial power and arrogates to the Legislature the judicial functions contrary to the scheme of our Constitution?
2. In order to appreciate the contentions which have been raised in these two questions, the facts arising in each of these two cases may be shortly stated. The petitioner in Special Criminal Application No. 15 of 1975 is the wife of the detenu. The detenu has been detained by the impugned order, Exhibit 'A' to the petition, passed on December 19, 1974. The order of detention was passed under Section 3(1) of the COFEPOSA Act with a view to preventing him from dealing in smuggled goods (otherwise than by engaging in transporting or concealing or keeping smuggled goods) as it was found necessary by the detaining authority to do so. The grounds communicated to the detenu have been set out in Annexure 'B' dated December 22, 1974. It was alleged against the detenu that on 11/12th August 1978, Customs Officers recovered smuggled goods viz., fabrics, calculators and 555 State Express Cigarettes, valued at Rs. 8,73,694/- from a truck bearing No. GJZ 8891 lying parked in the compound of Modern Flats Co-operative Housing Society behind National Institute of Designs, Paldi, Ahmedabad. Enquiries revealed that there was a telephone call on August 6, 1973 from one Jaku Kara of Salaya to the detenu but this call did not materialise and hence Jaku Kara booked telephone calls to one Shri M. K. Merchant who in his turn had contacted the detenu for disposal of the smuggled goods. In his statement dated August 20, 1973 recorded before the Customs Authorities, the detenu had disclosed that one Shri M. K. Merchant staying at Hotel Meghdoot in Ahmedabad had contracted the detenu for the disposal of smuggled goods which were seized on 11/12th August 1973 and the detenu showed his willingness for the disposal of the said contraband goods to Shri Merchant In connection with this seizure, a show cause notice dated February 4, 1973 had been issued to the detenu by the Collector of Customs and Central Excise, Ahmedabad and the case was pending adjudication. The second ground of detention mentioned that as a follow up action of the above case, the house of the detenu at Maninagar was searched by the Customs Officers on August 20, 1973. During the course of search, certain incriiminating documents showing the detenu's dealings in smuggled goods to the tune of Rs. 14 lakhs were inter alia recovered and seized for action under the Customs Act, 1962. In his statement dated August 21, 1973 recorded before the Customs Officers under Section 108 of the Customs Act, 1962, the detenu admitted that the accounts related to the detenu's transactions in those smuggled goods. In this connection a show cause notice had been issued to the detenu by the Collector of Customs and Central Excise, Ahmedabad, on February 14, 1974 and that case was pending adjudication. The Division Bench on examination of the materials before it came to the conclusion that Ground No. (1) must be held to be invalid because the so-called admission of the detenu on which reliance was placed was no admission at all and there was no admission whatsoever as to the two material incriminating facts, namely, that Merchant had contacted the detenu for disposal of smuggled goods which had been seized and secondly that the detenu had shown any willingness for the disposal of the said contraband goods. Thus, so far as this petition was concerned, the Division Bench found that out of the two grounds, Ground No. (1) was invalid and bad and in view of the law there stated, apart from Section 5-A, there was no grievance made regarding the validity of that ground by the learned advocate appearing for the petitioner.
3. In Special Criminal Application No. 51 of 1975, the order of detention was passed on December 19, 1974 on the allegation that with a view to preventing the detenu Kantilal Damodardas Shah from dealing in smuggled goods (otherwise than by engaging in transporting or concealing or keeping smuggled goods) the detaining authority thought it necessary to detain him and the order under Section 3(1) of the COFEPOSA Act was passed against him. The petitioner in this Special Criminal Application is the wife of the detenu. The grounds for the order of detention were as set out in annexure 'C' and the grounds were dated December 22, 1974. The following three grounds have been set out. It was alleged in the first ground that on April 10, 1966 when the premises of Messrs Rajkamal Provision Stores at Bhadra, Ahmedabad, belonging to the detenu were searched by the Deputy Superintendent, Central Excise (Gold Cell) Ahmedabad, 99 wrist watches of foreign origin were found in a drawer of the counter and three shavers and 25 wrist watches of foreign origin were found lying in the show case. These goods were seized by the said Deputy Superintendent of Central Excise (Gold Cell) under the Customs Act, 1962. These goods were worth Rs. 17,485/-. Out of these seized goods, 25 wrist watches of foreign origin were confiscated outright by the adjudication order dated November 10, 1967 by virtue of the order passed by the Deputy Collector, Central Excise, Ahmedabad. The second ground was that on December 19, 1971 the Customs Officers of Ahmedabad Central Excise Collectorate searched the premises of Messrs Rajkamal Provision Stores, Bhadra, Ahmedabad belonging to the detenu and goods viz., wrist watches, blades, lighters, flints, electric shaver shaving razors perfumes lighters, cigarettes playing cards, fabrics, recording tapes, gas lighters, fountain pens, chocolates and other miscellaneous goods valued at Rs. 15,372/- all of foreign origin were seized by the said Officers of Customs, in the reasonable belief that the same were smuggled goods. Show cause notices were issued to the detenu in connection with this case and the case was decided by the Collector of Central Excise, Ahmedabad, partly on September 5, 1973 and a penalty of Rs. 6,000/- was imposed of Messrs Rajkamal Provision Stores and a penalty of Rs. 3,000/- was imposed on the detenu. The detenu was also being prosecuted in connection with this case for which a criminal complaint was filed on June 29, 1974 and the criminal case was still pending trial in the Court of the Metropolitan Magistrate, Third Court, Ahmedabad. Ground No. (2) was to the effect that the premises of Messrs Prince Medical and Provision Stores, Ahmedabad, owned by the detenu were raided on 9/10th May 1972 by the Customs Officers and as a result of the search fabrics, one film movie projector along with obscene movie films, one transistor set, two obscene books and one projector bulb all of foreign origin valued at Rs. 4,197/- were seized by the above Officers of the Customs in the reasonable belief that the goods were smuggled goods. Along with these goods rough accounts of dealing in smuggled watches and cigarettes valued at Rs. 6,558A and Rupees 6,730/- respectively and currency of Rupees 4,288/- believed to be the sale proceeds of smuggled goods were also seized. In this connection a show cause notice dated February 1, 1973 was issued to the detenu and the case was pending adjudication. Out of these three grounds, in the light of the different authorities set out in the order of reference, the Division Bench held that the first ground which was of 1966 could never be pressed into service as a live-link in the instant case. As regards Ground No. (2), the Division Bench found that ground to be a valid ground but they held that it was not necessary to go into the allegation that Ground No. (3) was invalid as it was a casual and mechanical approach. Here also, out of the three grounds, Ground No. (1) was found to be bad and thereafter in view of the importance of the matter and in order to have the law settled finally, the questions hereinabove set out have been referred to the larger Bench for decision.
4. Before proceeding to examine the validity of these different questions, it is necessary to refer to the historical background of this particular branch of law of preventive detention. The Maintenance of Internal Security Act, 1971 (hereinafter referred to as the MISA), being Act 26 of 1971 was enacted on July 2, 1971. It provided by Section 3 that if the detaining authority was satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, the relations of India with foreign powers, or the security of India, or (b) the security of the State or the maintenance of public order, or (c) the maintenance of supplies and services essential to the community, or if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it was necessary so to do, the detaining authority was empowered to make an order directing that such person be detained. The order of detention could be passed by the Central Government or the State Government or by the District Magistrates, Additional District Magistrates specially empowered in this behalf by the State Government or by the Commissioners of Police, wherever they had been appointed. So far as the authorities other than the Central Government or the State Government were concerned, their powers of detention were only as regards the security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community. The MISA was amended by the Maintenance of Internal Security (Amendment) Ordinance, 1974 (No. 11 of 1974) which was promulgated on September 17, 1974. By this Ordinance power was given to all the detaining authorities mentioned in the MISA to detain any person if the detaining authority was satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him from (i) smuggling goods, or (ii) abetting other persons to smuggle goods, or (iii) dealing in smuggled goods, it was necessary so to do an order directing that such person be detained could also be passed in regard to these other prejudicial activities connected with smuggling and conservation of foreign exchange. The COFE-POSA Act was enacted on December 13, 1974 and by Section 14 of that Act, Ordinance No. 11 of 1974 was repealed with effect from the date on which the COFEPOSA Act was to come into force and accordingly the amendments made in the MISA by the said Ordinance were on such commencement to cease to have effect. The COFEPOSA Act was brought into force by virtue of the power given to the Central Government under Section 1(3) of the COFEPOSA Act with effect from December 19, 1974. The COFEPOSA Act was amended by Ordinance No. 6 of. 1975, being the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Ordinance, 1975 and by this Ordinance, Section 5-A was inserted in the COFEPOSA Act. The Ordinance was promulgated by the President on July 1,1975. Section 5-A was in these terms-.
5A. Where a person has been detained in pursuance of an order of detention under Sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are--
(iii) not relevant
(iv) not connected or not proximateiy connected with such person, or
(v) invalid for any other reason whatsoever,
and it is not therefore possible to hold that the Government or Officer making such order would have been satisfied as provided in Sub-section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention;
(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said Sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds.' Ordinance No. 6 of 1975 was repealed by the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1975 which came into force with effect from August 1, 1975. By the said Act, being Act No. 35 of 1975, by Section 1(2) it was provided that it must be deemed to have come into force on the 1st day of July, 1975, that is, the date on which Ordinance No. 6 of 1975 was promulgated. Section 5 Sub-section (2) provided that notwithstanding the repeal of the Ordinance, anything done or any action taken under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the principal Act as amended by Act 35 of 1975. Section 5-A which was insert ed by the Ordinance was in terms enacted in the principal Act by Section 2 of Act No. 35 of 1975 and thus with effect from July 1, 1975 COFEPOSA Act stands amended by insertion of Section 5-A.
5. It may be pointed out that after the enactment of the COFEPOSA Act, question had arisen before several courts whether there was such difference between the provisions of MISA as amended by Ordinance No. 11 of 1974 and the provisions of the COFEPOSA Act as to enable the Courts to say that if one out of the several grounds of detention was bad, the whole order was liable to be struck down. It may be pointed out that in this branch of law relating to preventive detention, in the series of cases starting from the decision of the Federal Court in Keshav Talpade v. Emperor the view which has always been taken was that if an order of detention was based on several grounds and one of those grounds was bad, the whole order of detention was liable to be struck down because the order of detention was required to be passed on the subjective satisfaction of the detaining authority and it was not possible for the Courts to predicate whether the detaining authority would have passed the order in the absence of that invalid ground or invalid grounds. The invalidity may arise out of one or several causes on which judicial review of executive action was possible but if it was found that one out of the several grounds for the order of detention was bad, the whole order was required to be struck down. This view which was taken by the Federal Court in connection with an order of detention passed under the Defence of India Act and Rules was extended in connection with detention under the Central Provinces and Berar Public Safety Act in Machindar Shivaji v. The King AIR 1950 FC 129 : 51 Cri LJ 1480. It was also extended by the Supreme Court to orders of detention passed under the Preventive Detention Act after the coming into force of the Constitution. See for example, Ram Krishan v. State of Delhi : 1953CriLJ1241 , Shibban Lal v. State of U.P. : 1SCR418 . In these different series of decisions in connection with detention under the Preventive Detention Act, it was also pointed out by the Supreme Court that if the order were not to be struck down, the Court would have to substitute its objective satisfaction as to whether the order of detention would have been passed on the grounds which were good. Thus the approach of the Supreme Court in several cases under the Preventive Detention Act was that rather than applying the test of objectivity by the Courts, the whole order should be struck down as there was no possibility of severing the good ground from the bad and excluding the bad ground and thereafter applying the test whether the order could be sustained on the good ground. It may be pointed out that in four cases; namely, in Dwarkadas v. State of Jammu and Kashmir : 1957CriLJ316 , Rameshwar Lal v. State of Bihar : 2SCR505 , Motilal v. State of Bihar : 1969CriLJ33 and Manu Bhusan v. State of West Bengal : 1974CriLJ401 , there were observations that the approach of severance of good ground from bad and exclusion of the bad ground and considering whether the bad grounds were inconsequential or not was applied to the different orders of preventive detention. However, in cases decided by the Supreme Court subsequent to the decision in Manu Bhusan v. State of West Bengal (supra), the Supreme Court had taken the view that even under MISA as under the Preventive Detention Act, if one out of the several grounds for the order of detention was bad, the whole order was required to be struck down. Vide Prabhu Dayal v. District Magistrate, Kammp : 1974CriLJ286 , Biram Chand v. State of U.P. : 1974CriLJ817 , Dwarika Prasad v. State of Bihar : 1975CriLJ221 , Ram Bahadur v. State of Bihar : 1975CriLJ269 . In Tulshi Babidas v. State of West Bengal : 1975CriLJ598 , Krishna Iyer J. observed-
The price that subjective satisfaction, as validating an order and excluding judicial scrutiny, has to pay in a Court, is that if one of many grounds relied on by the authority goes, undeniably the whole order falls, even though if it were a case of objective satisfaction the Court might have attempted to sustain the order on the surviving grounds'. The same view was also taken in Jatindra Nath v. State of West Bengal : AIR1975SC1215 . The cases which we have so far mentioned were all cases of preventive detention. In cases where question of preventive detention had not arisen, the Supreme Court had taken the view that if out of the several grounds on which an order was based (in none of those cases there being an order of preventive detention), good ground could be severed from the bad ground and the order could be sustained if one out of the several grounds was good. See for example, State of Maharashtra v. B.K. Takamore : 2SCR583 , State of Orissa v. Bidyabhushan : (1963)ILLJ239SC and Railway Board, New Delhi v. N. Singh : (1969)IILLJ743SC . In each of these three cases, the test of severance and exclusion was applied.
6. A Full Bench of this High Court in Special Criminal Application No. 204 of 1974 which was heard along with Special Criminal Application No. 7 of 1975, by its Judgment dated June 19, 1975 ((1976) 17 Guj LR 122) on examination of all the case law up to that time held that looking to the differences in provisions between the MISA and the COFEPOSA Act, there was a greater element of subjectivity under the COFEPOSA. Act as compared with the MISA and it was ultimately held that none of the changes made by the COFEPOSA Act indicated either expressly or by necessary implication an intention of the Legislature to depart from the previously existing legal position that if one of the grounds for an order of detention is found to be bad, the whole order must be struck down as vitiated. The reasoning which applied to orders passed under the MISA as amended by the Ordinance No. 11 of 1974, namely, that it is not possible for the Court to predicate whether the detaining authority would have passed the order of detention if the bad ground had not been present before it and that it was not possible to predicate what weighed with the detaining authority when it reached the subjective satisfaction, still held good under the COFEPOSA Act. On the contrary, the principle should be more strictly applied under the COFEPOSA Act as compared with the MISA as amended by Ordinance No. 11 of 1974, and the conclusions were thus summarized:
(1) When the Court comes to the conclusion that out of several grounds given for the detention some are not according to law and some are valid, the Court should set aside the entire detention order passed under Section 3 of the COFEPOSA Act. It is not open to the Court to attempt to probe further into the question whether the detaining authority would have passed the detention order even though some of the grounds are proved to be invalid.
It was further held that when one or more of the several grounds given for preventive detention under Section 3 of the COFEPOSA Act are found to be irrelevant, or non-existent, or bad, the whole of the order of detention is vitiated and it was held that in such cases the Court cannot, by applying the tests of 'reasonable man' exclude the irrelevant or non-existent ground or grounds and cannot consider whether on such exclusion, the concerned authority would have reached the same subjective satisfaction or not. It may be pointed out that under the COFEPOSA Act, some of the other High Courts had also taken the same view as the view taken by the Full Bench of this High Court in the above decision in Special Criminal Application No. 204 of 1974 with Special Criminal Application No. 7 of, 1975 decided on June 19, 1975. Thereafter Section 5-A was inserted in the COFEPOSA Act with effect from July 1, 1975, first by Ordinance No. 6 of 1975 and thereafter with effect from the same date, namely, July 1, 1975 by Act 35 of 1975.
7. We have set out elaborately the entire case law as it prevailed prior to the insertion of Section 5-A which is to have effect from July 1, 1975 so as to point out the background against which Ordinance. No. 6 of 1975 was promulgated and thereafter Act No. 35 of 1975 was enacted. It is to remedy the difficulty which the Government or the detaining authorities felt in view of these decisions of the different Courts when the Courts came to the conclusion that if out of the several grounds of detention one or more were bad the whole order was vitiated though the rest of the grounds might be good, that the COFEPOSA Act was amended by insertion of Section 5-A. In the Statement of Objects and Reasons dated July 18, 1975 which accompanied the Bill which ultimately was enacted as the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act 1975, Act No. 35 of 1975, it was observed as follows:
Some persons against whom orders of detention were made under the Act had to be released because the orders of detention were held to be void as some of the grounds of detention were considered by Courts to be vague, irrelevant or otherwise invalid.... In view of the urgency of the matter, the President promulgated on the 1st July, 1975, the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Ordinance, 1975 to remove the aforementioned difficulties and to make special provisions in respect of persons whose detention is necessary for dealing effectively with the emergency.
Thus it is clear that the legal position regarding the whole order being vitiated when one or more out of the several grounds for the order of detention is or are found to be invalid, was found to be a difficulty in the prevention of objectionable activities for the prevention of which the COFEPOSA Act was enacted and to remove this difficulty, inter alia, Section 5-A was inserted first by Ordinance No. 6 of 1975 and thereafter by Act No. 35 of 1975. Therefore, it was to remove this particular difficulty which the Government felt because of the decisions of the Courts that Section 5-A was brought on the statute book. Mr. Daru has firstly contended that Section 5-A is not retroactive and, therefore, it cannot apply to orders passed prior to July, 1, 1975. He has contended that there are the following three fictions which are created by Section 5-A. The first fiction is that when there are two or more grounds for an order of detention, such order of detention shall be deemed to have been made separately on each of such grounds. The second fiction is that the order of detention is not to be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person, or invalid for any other reason whatsoever and it is, therefore, not possible to hold that the Government or officer making such order of detention would have been satisfied as provided in Sub-section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention. The third fiction which is enacted is that in the event of one or more of the several grounds for the order of detention being found invalid and surviving ground or grounds being found to be good, that is, not found to be invalid, the detaining authority shall be deemed to have made the order of detention under Section 3 Sub-section (1) of the COFEPOSA Act after being satisfied as provided in the said sub-section with reference to the remaining ground or grounds. Mr. Daru in this connection contended that these three fictions are on the same footing as conclusive presumptions and the Courts should proceed on the footing that conclusive presumptions have been provided for by Section 5-A. He has relied upon passages from standard text books Eke Dicey on Conflict of Laws, Phipson on Evidence and Wig-more on Evidence for contending that conclusive presumptions are matters of substantive law and not procedural law. He has further contended that unless Legislature has in express terms or by necessary implication so provided, the amendment of substantive law cannot be given retrospective or retroactive operation and, therefore, Section 5-A should not be given retroactive effect. He has urged in this connection that rebuttable presumptions apportion burden of proof and assist the Court in ascertaining facts. Such rebuttable presumptions relate to evidence and matters of procedure and deal with question of proof of facts. On the other hand, according to Mr. Daru, where there is a provision for conclusive presumption, it is a matter of substantive law and such matters are not matters of proof. Dicey in Conflict of Laws, Seventh Edition, at page 1098 deals with presumptions and the passage on which Mr. Daru relies on is as follows:
Presumptions: In order to determine whether presumptions are rules of substance or rules of procedure, it is necessary to distinguish between three kinds of presumptions. Presumptions of fact arise when, on proof of certain basic facts, the trier of fact may, but need not, find the existence of a Eresumed fact. Rebuttable presumptions of law arise when, on proof of the basic facts, the trier of fact must find the existence of the presumed fact unless the contrary is proved. Irrebuttable presumptions of law (also known as conclusive presumptions) arise when, on proof of the basic facts, the trier of fact must find the presumed fact in any event. Presumptions of fact have, strictly speaking, no legal effect at all: they are merely common inferences and, as such, will be applied alike to cases governed by English and foreign law. It is now generally agreed that, even for the purposes of domestic law, irrebuttable presumptions of law are rules of substance, and this view applies for the purpose of this Rule.
The following passage from Phipson on Evidence, Ninth Edition, page 698 (this is also to be found at page 913 of Eleventh Edition of the same book) was also relied upon by Mr. Daru-
Presumptions: Presumptions may, as we have seen, be either of law or fact, and when of law may be either conclusive (presumptions juris et de jure), or rebuttable (pre-sumptiones juris), but when of fact (presump-riones hominis) are always rebuttable (ante, 4). Mixed presumptions are those which are partly of law and partly of fact. As to conflicting presumptions, see ante, 39. Conclusive Presumptions of Law. The modern tendency of Courts being to contract the range of all arbitrary rules affecting the weight of evidence, and to leave questions of fact to be determined as far as possible by the probabilities of the particular case, many presumptions of law, which in early times were considered absolute and indisputable, have since been relegated to the category either of rebuttable presumptions of law, or of mere presumptions or inferences of fact. In many cases those so-called conclusive presumptions are rules which belong, properly speaking, to the various branches of substantive law and not to the law of evidence, such as the presumption that an infant under seven is incapable of committing a felony, or that all men know the law (i. e., that ignorance of the law is no excuse for crime).
The following passage from Wigmore on Evidence, Third Edition, at page 292 Article 2492 was also relied upon by Mr. Daru in this context-
Conclusive Presumptions: In strictness, there cannot be such a thing as a 'conclusive presumption'. Wherever from one fact another is said to be conclusively presumed, in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the second fact's existence is wholly immaterial for the purpose of the proponent's case; and to provide this is to make a rule of substantive law, and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence.... The term 'conclusive presumptions has no place in the principles of Evidence (although the history of a 'conclusive presumption') often includes a genuine presumption as its earlier stage, and should be discarded.
8. It may be pointed out that in Izhar Ahmad v. Union of India : AIR1962SC1052 , all these different passages from different text books like Dicey on Conflict of Laws, Wigmore on Evidence, Phipson on Evidence and other standard text books were considered. The relevant discussion is to be found from paragraphs 18 to 29 of the judgment of Gajendragadkar J., as he then was, who delivered the judgment for the majority of the learned Judges who decided the matter. Out of the five Judges who heard the matter, Gajendragadkar, Wanchoo and Raja-gopala Ayyangar JJ. constituted the majority and the judgment on behalf of the majority was delivered by Gajendragadkar J. The Supreme Court in that case was concerned with the validity of Rule 3 of Schedule 3 of Citizenship Rules, 1956, made by the Government under the Citizenship Act, 1955. Under Rule 3 which was the impugned rule, it was provided that the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of the country before that date. In paragraph 29, after examining all the different text books and passages from text books and earlier authorities, the conclusions have been set out as follows:
In deciding the question as to whether a rule about irrebuttable presumption is a rule of evidence or not, it seems to us that the proper approach to adopt would be to consider whether fact A from the proof of which a presumption is required to be drawn about the existence of fact B, is inherently relevant in the matter of proving fact B and has inherently any probative or persuasive value in that behalf or not If fact A is inherently relevant in proving the existence of fact B and to any rational mind it would bear a probative or persuasive value in the matter of proving the existence of fact B, then a rule prescribing either a rebuttable presumption or an irrebuttable presumption in that behalf would be a rule of evidence. On the other hand, if fact A is inherently not relevant in proving the existence of fact B or has no probative value in that behalf and yet a rule is made prescribing for a rebuttable or an irrebuttable presumption in that connection, that rule would be a rule of substantive law and not a rule of evidence. Therefore, in dealing with the question as to whether a given rule prescribing a conclusive presumption is a rule of evidence or not, we cannot adopt the view that all rules prescribing irrebuttable presumptions are rules of substantive law. We can answer the question only after examining the rule and its impact on the proof of facts A and B. If this is the proper test, it would become necessary to enquire whether obtaining a passport from a foreign Government is or is not inherently relevant in proving the voluntary acquisition of the citizenship of that foreign State ' Applying the test for determining whether a particular rule is a rule of evidence or not as indicated in the above passage from the decision of Gajendragadkar J., it is obvious so far as the three deeming fictions under Section 5-A are concerned, particularly under Section 5-A Clause (b) is concerned, that there is no question of rule of evidence in the instant case. We are not dealing, really speaking, with any conclusive proof or conclusive presumptions and, therefore, the basic assumption that the deeming fictions create conclusive presumptions or irrebuttable presumptions is not warranted. We are not here concerned with any question of proof or any question of one conclusion following from another but judging from the background against which Section 5-A came to be inserted, all that it says is that when there are two or more grounds for an order of detention, the order of detention shall, by a fiction of law, be deemed to have been made separately on each of such grounds, The second fiction is by Clause (a) and that is, that even if one or more of the several grounds is or are bad, though all are not bad, the order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are invalid for the specific reason set out therein or invalid for any other reason whatsoever. The difficulty which was pointed out by the Courts of law right from Keshav Talpade's case (1943-44 Cri LJ 558) (FC) (supra) onwards, namely, that when there is a question of subjective satisfaction and several grounds for the order of detention have been mentioned and one of those grounds is bad, it will not be possible for the Court to predicate as to whether the bad ground did or did not weigh with the detaining authority at the time of passing the order of detention, has been, by a deeming fiction set out in Clause (a), got rid of and it has been said that even though it may not be possible to hold that the Government or Officer making the order would not have been satisfied as provided in Sub-section (1) of Section 3 with reference to the remaining ground or grounds and would not have made the order of detention, by the deeming fiction it is to be presumed that the order would, have been passed on the remaining ground even though some of the ground or grounds out of the several grounds in support of the order of detention is or are bad or invalid. If there are any remaining good ground or grounds, the third fiction is that the order of detention was passed with reference to the remaining good ground or grounds after the Court has discarded one or more of the several grounds for the order of detention. The effect of the enactment of Section 5-A is that unless all the grounds for the order of detention are found to be bad, the order cannot be struck down as an invalid order. Therefore, the entire basis that the three fictions provided for conclusive proof is not warranted on the language of the Section itself. Even it were to be held that three different conclusive presumptions are provided for in Section 5-A, in our opinion, the language used in Section 5-A clearly indicates that by necessary implication and by the very words of the Section, retroactive effect was intended to be given and must be given to Section 5-A.
9. The relevant words which lead to this conclusion are 'where a person has been detained in pursuance of an order of detention under Sub-section (1) of Section 3 which has been made on two or more grounds' The words which we have underlined in the phrases set out hereinabove clearly indicate, in our opinion, that by the use of the present perfect tense, the Legislature has intended that the three fictions set out in Section 5-A must operate in cases of all persons who have been detained in the past before the insertion of Section 5-A in the Act and in respect of whom the orders of detention have been made prior to July 1, 1975 when Section 5-A was inserted.
10. In Workmen of F. I. and R. Co. v. The Management : (1973)ILLJ278SC , the words 'has been' were construed by the Supreme Court. In paragraph 53 at page 1246 it was observed:
The words 'has been referred' in Section 11-A are no doubt capable of being interpreted as making the section applicable to references made even prior to 15-12-1971.
The Supreme Court in that case was dealing with the provisions of Section 11-A of the Industrial Disputes Act, 1947, which was inserted in 1971 and the question was of the scope of Section 11-A. Because of other words used in Section 11-A, the Supreme Court came to the conclusion that Section 11-A applied only to disputes which are referred for adjudication after the Section had come into force.
11. In Tabarak Khan v. Province of Bihar : AIR1950Pat228 a question similar to the question before us arose before a Division Bench of the Patna High Court consisting of Imam and Jamnar JJ. In paragraph 12 at page 235, Imam J., as he then was, delivering the judgment of the Division Bench has observed-
A further argument was raised by Mr. Ghosh that the amending Ordinance V of 1949 could not have a retrospective effect, that is to say, could not apply to cases where orders of detention had been passed before the date of the amending Ordinance. It has always been understood that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction, and that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. This was the view which Lindlay, LJ expressed in Louri v. Kenad (1892) 3 Ch 402. There may, however, be exceptions to this general rule. In Edn. 4 of Craies on Statute Law at page 341 it has been stated: 'Where a statute is passed for the purpose of supplying an obvious omission in a former statute or, as Parke J. said in R. v. Durslay (1832) 8 B and Ad 469; 'to 'explain' a former statute, 'the subsequent statute has relation back to the time when the prior act was passed'. Craies also stated that where an Act is in its nature declaratory the presumption against construing it retrospectively is inapplicable. In my opinion, the amending Ordinance should be read as one to which the presumption against construing it retrospectively is inapplicable.' In the same manner, in the instant case, the presumption against retrospective operation or retroactive operation has not to be drawn on the language used in the Section before us.
12. In Gajanan Dattatraya v. Sherbanu Hosang Patel, : 1SCR535 , the words 'has sublet' occurring in Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, came up for consideration before the Supreme Court. The words of the Section were 'has sublet' that is, the present perfect tense, and in paragraph 15, Ray C. J. has observed-
This Court held that the plaintiffs in Goppulal's case : 3SCR989 , did not establish that the subletting was after October 15, 1947 and on the date of the subletting in 1944, no rent control legislation was in force. It is in that context that it is said that 'the words has sublet contemplate a completed event connected in some way with the present time'. This Court said that the words 'has sublet' take within their sweep any subletting which was made in the past and has continued upto the present time. What is meant by these observations is that the vice of subletting which fell within the mischief of the Act continues to be a mischief within the Act.
Thus in the instant case, it must also be said that the words 'has been detained' occurring in Section 5-A, take within their sweep any detention which was made in the past and has continued up to the present and the words 'an order of detention under Sub-section (1) of Section 3 which has been made' are also words of wide amplitude and take within their sweep any order of detention which was made in the past and which has continued up to the present time, that is, upto July 1, 1975. When the Section speaks of a detained person and uses the present perfect tense 'has been detained' and says that 'an order of detention under Sub-section (1) of Section 3 which has been made', it indicates that the section deals with a person who was detained in the past and whose detention continues up to July 1, 1975 and it deals with orders of detention which were made in the past but which continued to be in force up to July 1, 1975. Under these cricumstances, in our opinion, the only meaning which can be attached to the clear language of Section 5-A is that it is retroactive and applies to all orders passed prior to July 1, 1975 so long as the orders were in force and the person in pursuance of such orders of detention was actually in detention on July 1, 1975.
13. In this connection we may point out that the question about retrospective or retroactive operation of Section 5-A of the COFEPOSA Act was considered by a Division Bench of the Bombay High Court consisting of Vimadalal and P. S. Shah JJ. In Criminal Application No. 506 of 1975 decided on 5/6/7th July 1975. Shah J., has delivered the judgment of the Court and the judgment proceeds upon the footing that the deeming fictions created by Section 5-A are conclusive presumptions and then relying upon the passages from Dicey, Wigmore and Phipson which we have set out above, the Division Bench of the Bombay High Court has held that 'provisions containing irrebut-table presumptions are provisions of substantive law and not a matter of mere procedure or evidence. By such provisions, the Legislature imposes certain facts which in fact may or may not exist of which no evidence to the contrary can be led', and proceeding upon the footing that these were ir-rebuttable presumptions, they have held that the provisions of Section 5-A are not retroactive or retrospective. With great respect to the learned Judges of the Bombay High Court, we are unable to agree with their conclusions, firstly, because, in our opinion, the deeming fictions created by Section 5-A are not conclusive presumptions. In any event, the language of Section 5-A is so clear on the point that even if they were to be held to be matters of substantive law, the Legislature has in clear and indubitable terms indicated that these provisions are to operate in respect of all orders of detention which were made prior to July 1, 1975 so long as the orders of detention are in force 'and so long as the person detained under such an order of detention is in actual detention.
14. As regards the challenge to the vires of the Section. Mr. Daru ultimately has confined his arguments regarding the validity of Clause (b) only. He has not challenged the rest of the provisions of Section 5-A. The contention of Mr. Daru regarding the challenge to the vires of Section 5-A can be summarized as follows. The state of the law prior to the insertion of Section 5-A was that satisfaction under MISA and under the COFEPOSA Act was a subjective satisfaction so far as the order of detention is concerned. It is so found from the very nature of detention and the object of Section 3(1). The subjective satisfaction has to be read into the Section. If that subjective satisfaction is found to be based on several grounds and if some of the grounds are defective, then the Courts find it impossible to predicate whether the detaining authorities would have passed the order of detention in the absence of the defective grounds. Such impossibility arises because the satisfaction is subjective and it is humanly impossible for anyone to find out the effect which the bad ground had on the mind of the detaining authority. Court's inquiry in such cases is not confined to examine only the stated grounds but also any other material which might have influenced the mind of the detaining authority. Ipse dixit of the detaining authority on the question whether the other material did or did not influence his mind, cannot foreclose an inquiry by the Court. The contention is that Clause (b) of Section 5-A by providing that the Government or Officer making the order of detention shall be deemed to have made the order of detention under the said Sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds has in terms directed the Court to hold that once one of the several grounds of detention is not found to be defective under any of the Sub-clauses (i), (ii), (iii) (iv) or (v) of Clause (a) of Section 5-A then the Court must proceed upon the footing that the satisfaction of the detaining authority as contemplated by Section 3(1) of the COFEPOSA Act was arrived at in respect of the remaining ground or grounds.
15. It is well-settled law that the Courts should lean against holding any provisions of a statute to be ultra vires and should, as far as possible, try to so construe an Act as to enable the Court to hold it to be intra vires. We have already pointed out the background of case law against which Section 5-A came to be inserted in the COFEPOSA Act with effect from July 1, 1975. The difficulty which the Government was experiencing was due to the view taken by Courts that if one or more out of the several grounds of detention were found to invalid, on that ground alone the whole order of detention was liable to be struck down. It was to provide a remedy for this difficulty felt by the Government that Section 5-A came to be inserted and the opening part of Section 5-A makes it clear that what follows in Clauses (a) and (b) is for the purpose of carrying out this object of the Legislature. The opening part makes it clear that where a person has been detained in pursuance of an order of detention under Sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of suck grounds and 'accordingly' the provisions of Clauses (a) and (b) of Section 5-A have been enacted. This use of the word 'accordingly' at the end of main portion of Section 5-A clearly indicates that what has been enacted in Clauses (a) and (b) is to give effect to the main provision of Section 5-A, namely, that order of detention shall be deemed to have been passed separately on each of the grounds for the order of detention. This situation can only arise in a case when there are two or more grounds for the order of detention. What has been set out in Clause (a) also confirms the view that what has been set out in Clauses (a) and (b) is to carry out this main object of the deeming fiction set out in the main body of Section 5-A, namely, that the order of detention must be deemed to have been passed separately on each of such grounds. In Clause (a) of Section 5-A, the Legislature has provided that when the order of detention made on two or more grounds is found to have contained one or more grounds which are vague or nonexistent or not relevant or not connected or not proximately connected with such person or invalid for any other reason whatsoever, the order of detention shall not be deemed to be invalid or inoperative merely because of any such defect in connection with one or more out of that several grounds for detention. The words of Clause (a) also confirm that what the Legislature wanted to provide by Clause (a) was to carry out the main object which the Legislature had in view in enacting Section 5-A, namely, that if one or more out of the several grounds for the order of detention are found to be bad because of any of the five sub-clauses of Clause (a), the Government or Officer making such order would have been satisfied as provided in Sub-section (1) of Section 3 with reference to the remaining ground or grounds and would have made the order of detention. That legal position which was emerging from the series of decisions of the Courts starting from the decision of the Federal Court in Keshav Talpade's case (1943-44 Cri LJ 558 (FC)) (supra) is sought to be removed and because of the deeming fiction that orders of detention when there are two or more grounds are deemed to have been made separately on each of such grounds, the order is not to be set aside merely because in the process of arriving at the subjective satisfaction before passing the order of detention, it is impossible for the Court to say whether in passing the order of detention the detaining authority was not influenced in arriving at its subjective satisfaction by the bad ground or grounds which the Court finds in the order of detention. In our opinion, as a matter of interpretation, what has been set out in Clause (b) is a further step in carrying out the main object of the Legislature and carries forward the scheme of the deeming fiction that when there are two or more grounds for the order of detention, each such order shall be deemed to have been passed separately on each of such grounds. That is why, having provided in Clause (a) that the order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are bad, badness being because of any of the reasons mentioned in Sub-clauses (i) to (v) of Clause (a), by Clause (b) the Legislature proceeds further and says that the Government or Officer making the order of detention shall be deemed to have made the order of detention under Sub-section. (1) of Section 3 after being satisfied as provided in that sub-section with reference to the remaining ground or grounds. Thus Clause (a) provides the negative, namely, that the order of detention shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are bad because of any of the reasons mentioned in Sub-clauses (i) to (v) of Clause (a). Having made that negative provision in Clause (a), in Clause (b) the Legislature puts forward the positive aspect, namely, that the detaining authority, be it the Government or the Officer mentioned in Section 3 shall be deemed to have made the order of detention after being satisfied as provided in Sub-section (1) of Section 3 with reference to the ground or grounds which are not found to be bad because of any of the reasons set out in Sub-clauses (i) to (v) of Clause (a). That is all that the Legislature intended to do and has done. The use of the words 'accordingly' in the main portion of Section 5-A and 'merely' in Clause (a) of Section 5-A clearly go to indicate that what is intended to be done by Clause (b) is nothing more than this, namely, the positive regarding the subjective satisfaction for which the negative is provided in Clause (a).
16. We find that in Khudiram Das v. State of West Bengal : 2SCR832 , the question of judicial review of administrative orders has been considered exhaustively by Bhagwati J. delivering the judgment of the Court. He has enumerated the several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. In paragraphs 9 and 10 these several grounds are mentioned. The first one is the case where the authority has not applied its mind at all. In such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Then there may be a case where the power is exercised dishonestly or for an improper purpose. Such a case would also negative the existence of satisfaction on the part of the authority. The existence of 'improper purpose', that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and, therefore, if, in exercising the power, the authority has acted under the dictation of another body, the exercise of the power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner, The satisfaction said to have been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this happens, the satisfaction of the authority would not be in respect of the thing in regard to which it is required to be satisfied. Then again the satisfaction must be grounded on materials which are of rationally probative value. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. if there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider. There is also one other ground on which the subjective satisfaction reached by an authority can successfully be challenged and it is of late becoming increasingly important and that ground is that when something is to be done within the discretion of the authorities, that something has to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is to be, not arbitrary, vague, fanciful, but legal and regular. Bhagwati J. has pointed out that so far as this particular ground is concerned, the Courts in the United States have gone much further than the Courts in England or in India. The United States Courts are prepared to review administrative findings which are not supported by substantial evidence, that is, by 'such relevant findings as a reasonable man may accept adequate to support a conclusion'. But in England and in India the Courts stop short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. If the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere. In such a case, a legitimate inference may fairly be drawn either that the authority 'did not honestly form that view or that in forming it, he could not have applied his mind to the relevant facts'. The power of the Court to interfere in such a case is not as an appellate authority to override a decision taken by the statutory authority, but as a judicial authority which is concerned, and concerned only, to see whether the statutory authority has contravened the law by anting in excess of the power which the legislature has confided in it. Bhagwati J., has pointed out in paragraph 11 In Khudiram Das's case (supra) at page 558-.there is nothing like unfettered discretion immune from judicial review ability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. 'Law has reached its finest moments' said Justice Douglas,
'When it has freed man from the unlimited discretion of some ruler, some...official, some bureaucrat.... Absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other inventions'
And this is much more so in a case where personal liberty is involved. That is why the Courts have devised various methods of judicial control so that power in the hands of an individual officer or authority is not misused or abused or exercised arbitrarily or without any justifiable grounds.
17. It is obvious that the enactment of Clause (b) of Section 5-A does not interfere with the power of judicial reviewability so far as orders of detention are concerned but it merely takes away one such ground on which following the line of decisions from Keshav Talpade's case (supra) (1943-44 Cri LJ 558 (FC)) the Courts were holding that the subjective satisfaction could not be said to have been arrived at when one out of several grounds of detention was found to be bad. It is only one aspect of judicial review which has been in terms taken away and it is only to a that limited extent that Clause (b) of Section 5-A can operate. It is not open to the Courts in view of the three deeming fictions provided in Section 5-A to go into the question whether the detaining authority would or would not have passed the order of detention if the ground or grounds which is or are found to be bad out of the several grounds of detention had not been considered by the detaining authority. It is only to this limited extent of cutting down the judicial review-ability on this one aspect of the case only that Section 5-A Clause (b) operates. It cannot be said and it was not even sought to be argued by the learned Additional Solicitor General who appeared for the Union of India before us that the power of judicial review on any of the other reasons or circumstances mentioned by Bhagwati J. in Khudhiram Das's case (supra) can be shut out because of the enactment of Clause (b) of Section 5-A. In our opinion, enactment of Clause (b) of Section 5-A in no way takes away the power of the High Courts under Article 226 or of the Supreme Court under Article 32 to apply the different principles of judicial review to the orders of detention even as regards grounds which are not found to be bad because of any of the reasons set out in Sub-clauses (i) to (v) of Clause (a) of Section 5-A. We wish to make it clear that the subjective satisfaction mentioned in Section 3(1) of the COFEPOSA Act remains still subjective satisfaction and it is not open to the Court to apply its own objective standards while judging the validity or otherwise of an order of detention. But, if for example an order is found to be mala fide in the sense of legal mala fides or even as regards the ground which is otherwise found to be not falling within the mischief of any of the Sub-clauses (i) to (v) of Clause (a) of Section 5-A, the order can be struck down in exercise of the power of judicial review as regards what may be referred to as the good ground or grounds. It is obvious that the power of the Court to consider the validity or otherwise of the different grounds of detention is not taken away even by Clause (b) because, if all the grounds mentioned in the order of detention are found to be bad, then even the deeming fictions set out in Section 5-A cannot save that particular order of detention. In that case since all the grounds of detention will be found to be bad, there will not be a single ground on which the order of detention can be sustained and the whole order would be quashed by the Court. We wish to emphasize that by a process of interpretation according to well-recognised canons of construction, the operation of Clause (b) of Section 5-A can be confined to what it was intended to do, namely, to provide that an order shall not be struck down if all the grounds on which an order of detention is made are not struck down by the Court as bad or invalid. The scope of the operation of Clause (b) is thus very much restricted and the Court's scrutiny regarding what may be referred to as the good ground or grounds is not excluded.
18. In Smt. Indira Nehru Gandhi v. Raj Narain : 2SCR347 , the different members of the Bench who heard the matter have made observations regarding the power of judicial review. Ray C. J., in paragraph 46 at page 2318 of the report has observed-
Judicial review is not to be founded on any Article similar to the American Constitution. In the Australian Constitution also the judicial power is located in the Court. The doctrine of separation of powers is carried into effect in countries like America, Australia. In our Constitution there is separation of powers in a broad sense. But the larger question is whether there is any doctrine of separation of power when it comes to exercise of constituent power. The doctrine of separation of powers as recognised in America is not applicable to our country.... The rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to our country. Many powers which are strictly judicial have been excluded from the purview of the Courts.
Similarly Khanna J. has observed in paragraph 190 at page 2346-
A declaration that an order made by a Court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the Court to be void or not binding (see Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality : 79ITR136(SC) , Janapada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd. : 3SCR745 ....
Similarly Mathew, J. has observed in paragraph 322 at page 2381-
The Judiciary, said the Federalist, is beyond comparison the weakest of the three departments of power. It has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment. Of the three powers Montesquieu said: the judicature is in some measure next to nothing. If he realised the relative weakness of the judiciary at the time he wrote, it is evidence of his vision that he appreciated the supreme importance of its independence. There is no liberty, he said, if the judicial power be not separated from the legislative and executive.
But this doctrine which is directed against the concentration of these powers in the same hand has no application as such when the question is whether an amending body can exercise judicial power. In other words, the doctrine is directed against the concentration of these sovereign powers in one or other organ of Government. It was not designed to limit the power of a constituent body.
Whereas in the United States of America and in Australia the judicial power is vested exclusively in Courts, there is no such exclusive vesting of judicial power in the Supreme Court of India and the Courts subordinate to it. And if the amending body exercised Judicial power in adjudging the validity of the election, it cannot be said that by that act, it has damaged a basic structure of the Constitution embodied in the doctrine of separation of powers. Even so, the question will remain whether it could exercise judicial power without passing a law enabling it to do so. As I said, the exercise of judicial power can result only in a judgment or sentence. The constituent power no doubt, is all embracing, comprising within its ambit the judicial, executive and legislative powers. But if the constituent power is a power to frame or amend a constitution, it can be exercised only by making laws of a particular kind.
Beg J., has observed in paragraph 551 at page 2434-
It seems to me that judicial review of all law making, whether it appertains to the sphere of fundamental law or of ordinary law, is traceable to this doctrine of judicial control by reference to certain basic principles, contained in a Constitution and considered too inviolable to be easily alterable. It may be that this doctrine is unsuitable for our country at a time when it is going through rapid socio-economic transformation. Nevertheless, so long as the doctrine is found embodied in our Constitution, we cannot refuse to recognise it.
In America, there was some doubt whether the doctrine of judicial review of all legislation naturally flowed out of the vesting of judicial power by Section 1 of Article 3 of their Constitution which says:
The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may, from time to time, ordain and establish.' (Willis on Constitutional Law: p. 1020).There is no article there, like Article 13 of our Constitution, which declared any kind of legislation abridging or taking away fundamental rights to be Void'. The doubt was not without substance. It was removed by Chief Justice Marshall whose judgment in Marbury v. Madison 1803-1 Cranch 137...firmly established the doctrine of judicial review and the supremacy of the Supreme Court of America, in the judicial field of interpretation, as the mouthpiece of the Constitution, and, therefore, of the 'Real Will' of the people themselves. The Constitution, as the basic or fundamental law of the land, was to operate there as the touchstone of the validity of ordinary laws just as the validity of laws made by British colonial legislatures was tested by reference to the parental Act of the British Parliament.
Chandrachud J, has observed at page 2466 in paragraph 667-.
Judicial review, according to Shri Shanri Bhushan is a part of the basic structure of the Constitution and since the 89th Amendment by Article 329A (4) and (5) deprives the Courts, including the Supreme Court, of their power to adjudicate upon the disputed election, the Amendment is unconstitutional. The fundamental premise of this argument is too broadly stated because the Constitution, as originally enacted, expressly excluded judicial review in a large variety of important matters. Articles 31(4), 31(6), 136(2), 227(4), 262(2) and 329(a) are some of the instances in point. True, that each of these provisions has a purpose behind it but these provisions show that the Constitution did not regard judicial review as an indispensable measure of the legality or propriety of every determination. Article 136(2) expressly took away the power of the Supreme Court to grant special leave to appeal from the decisions of any Court or Tribunal constituted by a law relating to the Armed Forces. Article 262(2) authorised the Parliament to make a law providing that the Supreme Court or any other Court shall have no jurisdiction over certain river disputes. But what is even more to the point are the provisions contained in Articles 103(1) and 329(b). Article 102 prescribes disqualifications for membership of the Parliament. By Article 103(1), any question arising under Article 102 as to whether a member of the Parliament has become subject to any disqualification has to be referred to the President whose decision is final. The President is required by Article 103(2) to obtain the opinion of the Election Commission and act according to its opinion. Thus, in a vital matter pertaining to the election for membership of the Parliament the framers of the Constitution had left the decision to the judgment of the executive Articles 327 and 328 give power to the Parliament and the State legislatures to provide by law for all matters relating to elections to the respective legislatures, including the preparation of electoral rolls and the delimitation of constituencies. By Article 329(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be called in question in any Court.
He observed later on in paragraph 668-.judicial review cannot be considered to be a part of the basic structure in so far as legislative elections are concerned. The theory of basic structure has to be considered in each individual case, not in the abstract, but in the context of the concrete problem.
Thus it is obvious that according to all the five learned Judges who have delivered separate but concurring judgments in the Supreme Court in Suit, Indira Nehru Gandhi's case (supra), judicial review even in matters of legislation is not an essential feature and as observed by Ray C. J., 'many powers which are strictly judicial have been excluded from the purview of the Courts'. Under these circumstances, merely because some aspect on the judicial review at the hands of the High Courts and the Supreme Court has been taken away in connection with orders of detention passed under the COFEPOSA Act, it cannot be said that the impugned legislation, particularly, Clause (b) of Section 5-A curtails the powers of the High Courts under Article 226 or the Supreme Court under Article 52 and to that extent is ultra vires. In our opinion, as a result of the process of interpretation, it can be found that Clause (b) of Section 5-A can be so applied as to keep it out of the mischief of encroachment upon the powers of the High Courts and the Supreme Court. As we have explained, the only meaning which can be assigned to Clause (b) of Section 5-A is to provide the deeming fiction that if one or more out of several grounds for the order of detention is or are found to be invalid, the order of detention shall be deemed to have been passed on the remaining good ground or grounds. That is the only purpose. All other challenges on the ground of judicial review indicated by Bhagwati J. in Khudiramdas's case (supra) (1975 Cri L, J. 446) (SC) are still open and they have not been in any way curtailed by Clause (b) of Section 5-A. Under these circumstances it must be held that Clause (b) of Section 5-A is not ultra vires the powers of the Central Legislature.
19. In the light of the above discussion, we answer the questions referred to us as follows. Section 5-A of the COFEPOSA Act is retroactive so as to apply to orders, of detention passed before July 1, 1975 so long as the order of detention is in force and the person continues to be detained in pursuance of that order. Secondly, Section 5-A does not impinge upon the power of judicial review nor does it impair the jurisdiction of the High Court under Article 226 of the Constitution. It cannot be said that Section 5-A encroaches upon or interferes with the judicial power or arrogates to the Legislature the judicial functions contrary to the scheme of the Constitution. The two matters referred to us will new go back to the Division Bench for disposal according to law.