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Nathalal Govindji Jhagada Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Criminal
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR503
AppellantNathalal Govindji Jhagada
RespondentState of Gujarat and ors.
Cases ReferredRam Ranjan Chatterjee v. State of West Bengal
Excerpt:
- - gate -meetings should be organised at mills and programme like 'nav nirman' should be organised 'this was the instigation done at this meeting. at this meeting there was a discussion about the political situation and there was instigation to carry on fierce (strong -gujarati word 'ugra') agitation against the rise in prices. because of the atmosphere created by your above activities, numerous incidents of stone-throwing, arson, looting and rioting have taken place because of these incidents and the situation where ordinary public can live does not prevail and the situation is still tense and strong. from the above facts i am satisfied that in order to prevent you from doing acts which would hinder or interfere with the maintenance of public order, it was necessary to detain you and.....b.j. divan, c.j.1. the petitioner herein is a detenu who has been detained under the provisions of the gujarat disturbed areas (maintenance of public order) ordinance, 1980, being gujarat ordinance no. 17 of 1980. the detenu has been detained in pursuance of an order dated august 18, 1980. he was actually arrested on august 20, 1980. the ground of detention dated august 18, 1980 were furnished to detenu at the time of his arrest and thereafter this special criminal application under article 226 of the constitution has been filed in this court challenging this order of detention. the matter came up for admission before the division bench consisting of m.p. thakkar add r.c. mankad jj. on august 25, 1980. on that day the division bench passed the following order:interim relief not pressed at.....
Judgment:

B.J. Divan, C.J.

1. The petitioner herein is a detenu who has been detained under the provisions of the Gujarat Disturbed Areas (Maintenance of Public Order) Ordinance, 1980, being Gujarat Ordinance No. 17 of 1980. The detenu has been detained in pursuance of an order dated August 18, 1980. He was actually arrested on August 20, 1980. The ground of detention dated August 18, 1980 were furnished to detenu at the time of his arrest and thereafter this special criminal application under Article 226 of the Constitution has been filed in this Court challenging this order of detention. The matter came up for admission before the Division Bench consisting of M.P. Thakkar add R.C. Mankad JJ. on August 25, 1980. On that day the Division Bench passed the following order:

Interim relief not pressed at present as rule is to be finally heard on 1-9-80. At the request of counsel respondents are directed to keep the petitioner present in Court at 11 A.M. on 1-9-80 to enable counsel to obtain instructions if necessary. Respondents shall permit Mr. K.J. Sethna to interview the detenu in jail whenever desired by him.

Thereafter, this matter along with the group of similar matters pertaining to and challenging the orders of detention in the case of different detenue detained under the provisions of this Ordinance was placed before the Division Bench consisting of one of us (Divan C.J.) and S.B. Majmudar J. on August 29, 1980. Since there was a challenge to the vires of the Ordinance, on August 29, 1980 notice was directed to be issued to the Advocate General and it was directed that the matter should be heard on September 3, 1980 and the detenu was directed to be kept present in Court on 3rd September 1980 at 11-00 A.M. Thereafter the matter was heard on September 3, 1980 but the judgment was not pronounced in the matter and thereafter, to pronounce the judgment, the matter was kept back to September 11, 1980.

2. The order of detention has been passed in this case by the Commissioner of Police, Ahmedabad, and it states that the Commissioner of Police was directing that the detenu should be detained in pursuance of the powers conferred on the Commissioner of Police by Section 4(2)(c) of the Ordinance and the order further stated that the order of detention was being passed with a view of preventing the detenu from acting in any manner prejudicial to the maintenance of public order. The grounds of detention dated August 18, 1980 were furnished to the detenu as required by Section 9 of the Ordinance and the grounds of detention stated as follows:

(1) On July 28, 1980 between the hours of 20 and 21, a private meeting of Bharatiya Janta Paksha was held at Ellis Bridge Shopping Centre. At that meeting, you, Nathelal Govindlal Zagda, Shri Ashok Bhatt, Shri Prahlaubhai Shambhubhai Patel and Shri Bachubhai Thakkar and other workers were present and it was decided by the meeting to carry on agitation against rising prices and it was decided that from 1-8-80- to 8-8-80 agitation should be carried on. Meetings should be organised ward-wise. Wall bulletins should be written and on 9-8-80 programmes should be arranged in front of Shahid Memorial, Bhadra by beating of big drum regarding the agitation and a programme of squatting should also be organised. Moreover, a ladies' Morcha, death-knell of the price rise and holding of demonstrations at functions attended by the Ministers should be arranged and raids should be carried out at the premises of those who were adulterators. Gate -meetings should be organised at mills and programme like 'Nav Nirman' should be organised ' This was the instigation done at this meeting.

(2) On 5-8-&0 between the hours of 20-30 and 21-30, a meeting of the workers of Bharatiya Janta Paksha from Khadia, and Jamalpur Wards, was held at Vasant Smruti Graha Khadia Golwad. At that meeting, you, Sarvashri Ghanshyam Mehta, Jayendra Pandit and twenty-seven other workers of your party had remained present. At this meeting there was a discussion about the political situation and there was instigation to carry on fierce (strong - Gujarati word 'Ugra') agitation against the rise in prices.

(3) On 9-8-80, between the hours of 10 and 20-15, near Shahid Memorial opposite Congress House, you and about one hundred fifty persons including the following persons belonging to your party, namely, Sarvashri Prahladbhai Shanabhu-bhai Patel, Ashok Chandula! Bhatt, Harin Ramchandra Pathek, Jayendra Pandit, Dattatraya Narayan Chiranjidas and other one hundred persons had gathered together and a programme of resolving to carry on the agitation against the rise in prices was organised. At the time of that programme, it was instigated that the agitation against rising prices was against the Government and the police need not interfere in the carrying on of that agitation. If the police were to support this agitation against rising prices, then it will be understood that even the police are affected by the rising prices. But if the police were to interfere with the carrying on of the agitation, there would be fierce ('ugra') agitation of the people and police.' This was the instigation done.

Because of the atmosphere created by your above activities, numerous incidents of stone-throwing, arson, looting and rioting have taken place because of these incidents and the situation where ordinary public can live does not prevail and the situation is still tense and strong. From the above facts I am satisfied that in order to prevent you from doing acts which would hinder or interfere with the maintenance of public order, it was necessary to detain you and because of that satisfaction, I have passed an order to that effect.

If you want to make a representation against the order by which you have been detained, then, you should forward the same addressing it to the Government of Gujarat and it should be sent through the Superintendent, Mehsana District Jail, Mehsana.

You are also informed that you have a right to demand a personal hearing before the Advisory Board constituted under the said Ordinance and if you want to avail yourself of this right, you should clearly mention this in your representation.' The original grounds are in Gujarati. The mother-tongue of both of us is Gujarati and we are fully familiar with the language and we have translated those grounds ourselves.

3. At this stage it is advisable to refer to the provisions of the Ordinance. It was promulgated on August 16, 1980 and it appears to have been signed by the Governor of Gujarat on August 15, 1980. The Statement of Object and Reasons; mentions 'The law and order situation in the City of Ahmedabad has remained disturbed for the last two days causing great hardship inspite of steps taken under the provisions of existing laws to deal wish that situation. It is necessary, therefore, to deal effectively with persons acting in any manner prejudicial to the maintenance of public order in the City of Ahmedabad as also in areas where such situation is likely to arise. It is, therefore, necessary to provide for preventive detention of persons acting in a manner prejudicial to the maintenance of public order in disturbed areas. As the Gujarat Legislative Assembly is not in session, this Ordinance is promulgated to achieve the aforesaid object.' Section 3 of the Ordinance provides in Sub-section (1):

where, in the opinion of the State Government public order in any area is or is likely to be disturbed, it may by notification in the Official Gazette declare such area to be a disturbed area.

And in Sub-section (2):

The declaration made under Sub-section (1) shall remain in force in the first instance for a period of six monthe from the date of its publication in the Official Gazette:

Provided that the State Government may, by a like notification, extend the period of the declaration for a further period not exceeding two monthe in the aggregate.

Under Section 4, power to make orders of detention has been conferred under Sub-section (1) on the State Government or any officer thereof not below the rank of Joint Secretary specially empowered for the purpose of the section by the State Government and if the detaining authority is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to she maintenance of public order in a disturbed area it is necessary to detain that person, then the detaining authority may make an order directing that such person be detained, and there is a proviso So Sub-section (1) of Section 4 which states:

Provided that when any order is made under this sub-section by an officer of the State Government not below the rank of Joint Secretary specially empowered in this behalf, such officer shall, within seven days, report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in the opinion of the officer have a bearing on the matter.

Under Sub-section (2), District Magistrate, Additional District Magistrates specially empowered in this behalf by the State Government and the Commissioner of Police of Ahmedabad, may, if satisfied as is provided in Sub-section (1) exercise the powers conferred by the said sub-section. Under Sub-section (3):

When an order is made under this section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the State Government 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 then twelve days after the making thereof unless in the meanwhile it has been approved by the State Government.

Under the proviso:

Provided that where under Section 9 the grounds are communicated by the authority making She order after five days, but not later then ten days from the date of detention, this sub-section shall apply, as if. for the words twelve days' the words 'fifteen days' had been substituted.

Section 7 provides:

No detention order shall be invalid or inoperative merely by reason-

(a) that the parson to be detained thereunder is outside the disturbed area or the limits of the territorial Jurisdiction of the officer referred to in Sub-section (2) of Section 4 making the order, or

(b) that the place of detention of such person is outside the disturbed area or the said limits:

Provided that the person to be detained or, as the case may be, the place of detention of such person is within the State.

Section 9 of the Ordinance requires:

When a person is detained in pursuance of a detention order, the authority making the order, shall, as soon as may be, but ordinarily not later then five days and in exceptional circumstances and for reasons to be recorded in writing not later then ten days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the State Government.

Section 15 of the Ordinance provides:

Without prejudice to the provisions of Section 21 of the Bombay General Clauses Act, 1904, a detention order may, at any time, be revoked or modified by the State Government, notwithstanding that the order has been made by any officer mentioned in Sub-section (1) or (2) of Section 4.

Section 21 of the Bombay General Clauses Act provides:

Where, by any Bombay Act (or Gujarat Act), a power to issue notifications, orders, rules or by-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or by-laws, so issued.

Thus, by virtue of Section 15, power of revocation of an order of detention is specifically conferred on the State Government but such power of the State Government under Section 15(1) is not to interfere with the power to make an order which the detaining authority can pass in view of Section 21 of the Bombay Central Clauses Act, rescinding the order of detention. These are the relevant provisions of the Ordinance.

4. It may be pointed out that in the special criminal application which was originally filed, the petitioner had challenged the vires of the Ordinance and the challenge was under Articles 14, 19, 20, 21 and 22 of the Constitution. The petitioner has also prayed for an appropriate writ, order of direction quashing the order of detention and the grounds furnished.

5. At the hearing of the petition on September 3, 1980 Mr. Jethmalani, learned Counsel appearing for the petitioner, stated that he was not pressing the challenge to the vires of the Ordinance and that he was proceeding upon the basis that the Ordinance was legal and valid. One of the submissions urged by Mr. Jethmalani was based upon the provisions of Section 4(3), namely that within the particular time laid down by that Sub-section, report has to be made to the State Government by the detaaining authority and this was required to done since the detention order was passed by the Commissioner of Police under Sub-Section (2) of Section 4 of the Ordinance and that the State Government hid to approve the order of detention. Under Sub-Section (3) of Section 4, the order of detention passed by the Commissioner of police cannot remain in force for more then twelve days after the making thereof unless in the meanwhile it had been approved by the State Government, In this connection, the learned Advocate General appearing on behalf of the respondents, pointed out that the relevant dates were-on August 18, 1980 the order of detention was passed by the Commissioner of Police, on August 20, 1980 the petitioner was arrested and put under detention; on August 21, 1980 information was given to the State Government as required by Section 4(3) of the Ordinance, on August 22. 1980 the petitioner was actually arrested and on August 28, 1980 the order was approved by the State Government inasmuch as the Minister concerned to whom, under the Rules of Business, this work was assigned, had approved the order of detention. When these dates were pointed out by the learned Advocate General, Mr. Jethmalani did not press this submission or challenge to the order of detention under Section 4(3) of the Ordinance.

6. The remaining submissions of Mr. Jethmalani were as under:

(1) None of the grounds of detention has any nexus with public order as interpreted by the Supreme Court and in this connection, he contended that one of the grounds is vague:

(2) The second submission was that the detaining authority is the Commissioner of Police and he has the power to revoke the order in view of Section 21 of the Bombay General Clauses Act which has been saved by Section 15 of the Ordinance. However, in the grounds of detention, the petitioner was informed that the representation should be made to the State Government and that information was misleading. It was contended that a right to make a representation to the detaining authority is a fundamental right under Article 22 of the Constitution and this right of making a representation was frustrated by the wrong advice given by the Commissioner of Police to the detenu:

(3) It was lastly contended that it was obvious from the grounds of detention, the affidavit of the Commissioner of Police and the affidavit-in-reply filed on behalf of the State that there was some material other then that which was disclosed to the petitioner and that, that very material was relied upon for the purposes of passing the order of detention which is challenged in this case, and since such material is referred to in the affidavits filed in this case, no question of claiming privilege under Section 9(2) of the Ordinance would arise.

7. Before we start examining these submissions in detail, we will refer to the decisions of the Supreme Court which have been cited by one or the other side to enable us to come to the correct conclusion regarding this matter. The learned Advocate General on behalf of the respondents has drawn our attention to the decision of the Supreme Court in Pushkar Mukherjea v. The State of West Bengal : 1970CriLJ852 . The Supreme Court there pointed out that the satisfaction of the detaining authority to which Section 3(1)(a) of the Preventive Detention Act referred was subjective and not objective satisfaction and was not justiciable. Therefore, it would not be open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining authority could be justified by the application of objective tests. The reasonableness of the satisfaction of the detaining authority could not be questioned in a Court of law; the adequacy of the material on which the said satisfaction purported to rest also could not be examined in a Court of law, except where some of the grounds furnished to the detenue were found to be vague or irrelevant while considering the application of Clauses (i) to (iii) of Section 3(1)(a) of the Preventive Detention Act and in that sense it could be urged that they were foreign to the Act. It was also pointed out by the Supreme Court in that case that the detenue might also challenge the validity of his detention on the ground of mala fides. The detenu might say that the passing of the order of detention was an abuse of the statutory power and was for a collateral purpose. In support of the plea of mala fides, the detenu might urge that along with other facts which showed mala fides, the grounds served on him could not rationally support the conclusion drawn against him by the detaining authority. It was only in this incidental manner that that question could become justiciable; otherwise the reasonableness or propriety of the said satisfaction contemplated by Section 3(1)(a) could not be questioned before the Courts. It was pointed out by the Supreme Court, relying on its earlier decision in Ram Manohor Lohia v. State of Bihar : 1966CriLJ608 , that the contravention of any law always affected order but before it could be said to affect public order, it must affect the community or the public at large. In this connection a line of demarcation must be drawn between serious and aggravated forms of disorder which directly effected the community or injured the public interest and the relatively minor breaches of peace of a purely local significance which primarily injured specific individual and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder was thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which would affect public order came within the scope of the Act. A District Magistrate was therefore entitled to take action under Section 3(1) of the Act to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. It was also pointed out by the Supreme Court in that case that the Constitutional requirement that the grounds must not be vague must be satisfied with regard to each of the grounds communicated to the person detained subject to the claim of privilege under Clause (6) of Article 22 of the Constitution and therefore, even though one ground was vague and the other grounds were not vague, the detention would not be in accordance with procedure established by law and would be therefore illegal.

8. It may be pointed out that so far as The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act), is concerned, by an amendment inserted by Act 35 of 1975 it has been specifically provided 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 such grounds and accordingly-(a) such order shall cot 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 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 and 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. There is no provision in the Ordinance before us similar to Section 5A of the COFEPOSA Act and therefore the principle laid down in Pushkar Mukherjee v. The State of West Bengal (supra) to the effect that when one ground is vague and other grounds are not vague the detention is not in accordance with the procedure and therefore illegal, would apply to the orders of detention passed under the Ordinance.

9. The learned Advocate General also relied upon the decision of the Supreme Court in Nabani v. State of West Bengal 0065/1974 : 1974CriLJ1175 and particularly the observations in paragraph 2 of the judgment where Chandrachud J., as he men was, observed:

The other grievance of the petitioner is that the particulars furnished to him relate to two stray incidents speed over a period of four month and that is not sufficient to justify the detention. This argument is beyond the ken of judicial review as it is not for us to determine the sufficiency of reasons for detention.

10. The learned Advocate General further relied on the decision of the Supreme Court in Imam Shaik v. State of West Bengal : 1974CriLJ1463 . In that case, Sarkaria J. speaking for the Supreme Court, observed in paragraph 15:

Moreover it was entirely for the detaining authority to make a prognosis of the petitioner's future behaviour on the basis of his past activities. The Court cannot test the subjective satisfaction of the authority as to the propencity of the petitioner to act in a manner prejudicial to supplies and services essential to the community, by objective standards.

11. The decision in Madhu Limaye v. Sub Divisional Magistrate Monghyr A.I.R. 1971 S.C. 2482 was also relied upon by the learned Advocate General for the purpose of finding out as to what is the concept of 'public order' so far as the law in India is concerned. Hidayatullah C.J. speaking for the Bench of seven Judges in Madhu Limaye's case after referring to the earlier decision in Ram Manohar Lohia v. State of Bihar (supra), extracted the following passage from the judgment in Ram Manohar Lohia's case for expounding the phrase 'maintenance of public order':

One has to imagine three concentric circles Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents the security of the State.' All cases of disturbances of public tranquility fall in the largest circle but some of them are outside 'public order' for the purpose of the phrase 'maintenance of public order', similarly every breach of public order is not necessarily a case of an act likely to endanger the security of the State.

Adopting this test we may say that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from mere disturbance of the serenity of life to jeopardy of the State. The acts become graver and graver as we journey from the periphery of the larger circle towards the centre. In this journey we travel first through public tranquility, then through public order and lastly to the security of the State.

In paragraph 20 at page 2495, Hidayatullah C.J. observed:

In dealing with the phrase 'maintenance of public order' in the context of preventive detention, we confined the expression in the relewant Act to what was included in the second circle and left out that which was in the larger circle. But that consideration need act always apply because small local disturbances of the even tempo of life, may in a sense be said to affect 'public' order' in a, different sense, namely. in the sense of a state of law abidingness vis-a-vis the safety of others. In our judgment the expression 'in the interest of public order' in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or are within order publique as described but also certain acts which disturb public tranquility or are breaches of the peace. It is not necessary to give to the expression a narrow meaning because, as has been observed, the expression 'in the interest of public order' is very wide. Whatever may be said of maintenance of public order in the context of special laws regarding detention of persons without trial on the pure subjective determination of the Executive cannot be said in other circumstances. In the former case this Court confined the meaning to graver episodes not involving cases of law and order which are not disturbances of public tranquility but of order publique.

Thus, from the earlier decision in Ram Manohar Lohia's case (supra) it is clear that so far as enactments providing for detention without trial on pure subjective determination of the Executive are concerned, the meaning of the words 'public order' is concerned to graver episodes not involving cases of law and order which are not disturbances of public tranquility but of order publique.

12. The learned Advocate General also, relied upon the decision in Samir Chatterjee v. State of West Bengal : AIR1975SC1165 . This decision was relied upon for the proposition that it is the subjective satisfaction of the detaining authority which counts, and he particularly relied on the observations of Alagiriswami J. speaking for the Supreme Court to the effect 'The detaining authority when he comes to know that the detenu is going to be discharged from the criminal cases for want of sufficient evidence for successful prosecution can very well take the view that it is necessary for the purpose of preventing the detenu from acting in a manner prejudicial to the maintenance of public order that he should be detained and if he is satisfied on the evidence available his subjective satisfaction cannot be questioned by the Court.

13. In Ram Ranjan Chatterjee v. State of West Bengal : 1975CriLJ588 . The question of public order and law and order was again discussed by the Supreme Court and it was pointed out that qualitatively, the acts which affect 'law and order' are not different from the acts which affect 'public order'. Indeed, a state of peace or orderly tranquility which prevails as a result of observance or enforcement of internal laws and regulations by the Government, is a feature common to the concepts of 'law and order' and 'public order'. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach of the act in question on society. It is the potential of the act of disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. These concentric concepts of 'law and order' and 'public order' may have a common 'epicentre', but it is the length, magnitude and intensity of the terror-wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order' from that concerning jaw and order'.

14. The decision in Shri Keshab Chandra Das v. State of West Bengal A.I.R. 1972 S.C. 1739 relied upon by the learned Advocate General was rendered in the context of the facts of the particular case and no special principle of law has been indicated by the Supreme Court in that particular case. It was only on the point of nexus that certain observations were made by Krishna Iyer J. speaking for the Supreme Court in Keshab Chandra's case (supra).

15. The only other decision relied upon by the learned Advocate General is the decision in Golam alias Golam Mallick v. The State of West Bengal : 1976CriLJ630 . There the Supreme Court has pointed out as to what is meant by the words 'grounds of detention' in the context of Article 22 of the Constitution. It was pointed out by the Supreme Court that in the context of Sections 3 and 8 of the MISA, 'grounds' did not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of that Act nor was its connotations restricted to a bare statement of conclusions of fact. It meant some thing more. That 'something' was the factual constituent of the 'grounds' on which the subjective satisfaction of the authority was based. All the basic facts and material particulars, therefore, which had influenced the detaining authority in making the order of detention would be covered by 'grounds' within the contemplation of Article 22(5) of the Constitution and Section 3 and were required to be communicated to the detenu unless their disclosure was considered by the authority to be against public interest. The question whether that requirement was complied with or not was justiciable. Indeed it was the duty of Supreme Court as sentinal of the fundamental freedoms guaranteed by the Constitution, to see that the liberty of none is taken away except in accordance with procedure prescribed by law. On the facts of that particular case in Golam Mallick's case (supra) it was found that the detenu was not in a position to make an effective representation and therefore the order of detention was vitiated. It was pointed out by the Supreme Court in Golam Mallick's case that the question whether the requirement regarding furnishing of grounds was complied with or not was justiciable.

16. The authorities cited by Mr. Jethmalani on behalf of the petiti oner are two. The first decision on which he relied was the decision of the Supreme Court in Ram Bahadur v. The State of Bihar : 1975CriLJ269 . It was pointed out by Chandrachud J, as he then was, spea king for the Supreme Court.

Where the order of detention is founded on distinct and separate grounds if any one of the grounds is vague or irrelevant the entire order must fall. The satisfaction of the detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant data.

Mr. Jethmalani particularly relied upon the facts of that particular case because, according to him, the facts of the case in Ram Bahadur's case are very similar to the facts of the case before us. There the petitioner, a student leader, was detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The first two of the eight grounds supplied to him were (1) that the petitioner in his capacity as Secretary of All India Vidyarthi Parishad, attended a meeting of the Bihar Rajya Chhatra Neta Sammelan held on 17th and 18th February 1974, in the Patna University campus and a decision was taken at his instance to start a Gujarat type of agitation in Bihar and it was also decided to resort to hunger strike and 'gherao' of the office of the Chief Minister, Bihar, District Magistrate, Patna and other officials. The second ground was that whereas a meeting of the Students Steering Committee was held on the 1st March, 1974 under the Presidentship of where it was decided to form a Sanchalan Samiti for conducting the students' agitation and the petitioner readily accepted to become one of the members of Sanchalan Samiti. It was held by the Supreme Court that the first ground was vague and the second was irrelevant and hence the order of detention was liable to be set aside. Grounds 1 and 2 were read disjunctively and the one was as sequel to the other. It was pointed out by Chandrachud, J. in paragraph 16 at page 227.

Counsel for the petitioner concentrated his attack on the first ground by which it is alleged that on February 17 and 18 it was decided at the instance of the petitioner to start a 'Gujarat type of agitation in Bihar.' The reference obviously is to the recent happenings in Gujarat which culminated in the dissolution of the State Legislature and the introduction of the President's Rule. We may and ought to take judicial notice of the well-known facts of contemporary life like the dissolution of the Assembly or the introduction of the President's Rule. But, frankly, we are unaware of the true connotation of the so-called 'Gujarat type of agitation'. That is not to feign ignorance of what the newspapers and journals reported but outside the laymsn's way of thinking there is a distinction between what happened in fact and what was intended to happen. The Court will be treading on a dangerous ground if it attempted to interpret judicially the genesis of recent political events. Often, the tint of glasses furnishes a preconceived answer to such problems and the glasses of the Court have no tint. Some one claimed that the Gujarat agitation was essentially an anti price-rise stir which went out of hand because of supervening circumstances. Some one else claimed that the movement in its inception was and was intended to be a violent means of creating chaos and public disorder. The fence-sitters saw sense in both points of view while the independent politician, not committed to this or that ideology, discovered yet new dimensions of the problem rejected alike by those who launched the movement and those who opposed it. So conflicting are the papular verdicts. It would be wholly improper for a court to pronounce on the prognosis of such political events. We shall therefore not assume that the decision to start a 'Gujarat type of agitation' meant a clarion call to violence.

17. If the charge be that the petitioner had preached violence, the grounds of detention must say so. Such a serious accusation ought not to be left to mere speculation. And if there is not a whisper of violence in the grounds of detention or in the affidavit of the District Magistrate, how can the court conclude that the petitioner exhorted the student community to take to the path of violence in the pursuit of its demands? The judgment of the High Court shows that in March 1974 Bihar was in the grip of violence. But we cannot argue back and hold that since the Chatra Neta Sammelan took a certain decision in February and the violence erupted in March therefore one was the cause and the other the consequence. Such an inference may perhaps be permissible in respect of historical events which have been subjected to an expert and dispassionate examination by historians. But green facts of contemporary life are an unsure foundation for raising such an inference.

18. 'Gujarat type of agitation' being thus a phrase of vague and uncertain import, the petitioner could have had no opportunity to make an effective representation against the order of detention. Article 22(5) of the Constitution requires that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. By a long series of decisions, this right has to be real and effective, not illusive or empty. If the petitioner was not apprised of what was truly alleged against him and if the accusation, reasonably, was unintelligible, he was deprived of an opportunity to make an effective representation against the detention order. Anything said by him to clear his conduct would then, at best, be a fishing answer to meet a roving charge. Such a representation involves the risk of being rejected out of hand as being besides the point.

19. The District Magistrate says in his affidavit that 'Gujarat type of agitation' is a matter of common knowledge, and the petitioner being Secretary of All India Vidyarlhi Parishad and a good student throughout his career, as stated by the petitioner himself, it is preposterous to imagine that the words 'Gujarat type of agitation' would be unintelligible to him.' In the first place, common knowledge like common sense is not so common and, at any rate, what may be said to be common knowledge is the fact of happenings in Gujarat and not what is meant by 'Gujarat type of agitation.' Saying that any one and every one knows what is meant by 'Gujarat type of agitation' is not a legal answer to the contention that the petitioner did not and could not know what is meant by the particular phrase. The Secretaryship of Vidyarthi Parishad or the petitioner's claim to Scholarship has no bearing on the question whether the phrase has a fixed connotation. The point of the matter is that it would mean differently to different people and is therefore vague. Inability to comprehend the meaning of a vague expression cannot surely be dubbed as 'preposterous'.

In paragraph 21 of the judgment, Chandrachud J. dealt with ground No. 2 where it was alleged by the detaining authority that at the meeting of the Steering Committee held on March 1, 1974 it was decided to form a Sanchalan Samiti for conducting the students agitation and that the petitioner readily agreed in that meeting to become a member of the Samiti. Regarding this ground, Chandrachud J. observed:

The formation of an Association for the ventilation of grievances in a lawful manner is a part of the Constitutional right of free speech and expression, the right, to assemble peacefully and without arms and the right to form associations guaranteed by Article 19(1)(a), (b) and (c) of the Constitution. The State, under Clauses (2), (3) and (4) of Article 19 has the right to make laws for imposing reasonable restrictions on the exercise of those rights in the interests, inter alia, of public order. That power lends legality to preventive detentions under the authority of a law. But an order of detention passed under any such law has again to answer the test that there has to be a nexus between the acts of the detenu founding the order of detention and the purpose of detention. The purpose here is to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order. The mere fact that the petitioner was instrumental in forming the Sanchalan Samiti for conducting the students agitation or that he readily agreed to become a member of that Samiti cannot justify the conclusion that these acts are calculated to disturb public order. Peaceful protests and the voicing of a contrary opinion are powerful wholesome weapons in the democratic repertoire. It is therefore unconstitutional to pick up a peaceful protestant and to put him behind the prison bars. The right to repine can be taken away, only for a constitutionally recognised purpose as for example in the interests of public order. That nexus is lacking in this case.

(Emphasis Supplied)

17. The other decision on which Mr. Jethmalaui relied is the decision of the Supreme Court in Magan Gope v. The State of West Bengal : 1975CriLJ791 . In paragraph 6 of his judgment, Sarkaria J. speaking for the Supreme Court, pointed out:

Times out of number, it has been emphasized by this Court that since the Act gives extraordinary powers to the Executive to detain a person without trial, meticulous compliance with the letter and requirements of law is essential for the validity of an order ot detention made thereunder.

Sarkaria J. referred to the earlier decision of the Supreme Court in Ram Ranjan Chatterjee v. State of West Bengal : 1975CriLJ588 (supra) and reproduced the passage which we have extracted above. It was pointed out in the extracted passage:

Every kind of disorder or contravention of law affects that orderly tranquility. The distinction between the areas of 'law and order' and 'public order' as pointed out. by this Court in Arun Ghosh's case : 1970CriLJ1136 'is one of degree and extent of the reach of the act in question on society ' It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals, directly involved, as distinguished from a wider spectrum of the public, it would raise a problem of law and order only. These concentric concepts of 'law and order' and 'public order' may have a common 'epicentre', but it is the length, magnitude and intensity of the terror-wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order' from that concerning 'law and order'.

In paragraph 14 Sarkaria J. observed:

We have gone through the cases cited by Mr. Chatterjee. It has not been laid down therein as a proposition of law that whenever any act is accompanied by show of force or threat to a public servant entrusted with the maintenance of law and order, it must necessarily fall within the category of an act prejudicial to the maintenance of Public Order. Even in those cases, the broad test applied was whether the act was of such a magnitude and gravity that it had disturbed the even tempo of the life of the community in the area, Indeed this is essentially a question of fact depending on the circumstances of each case.

18. It is in the light of these principles laid down by the Supreme Court that the rival contentions, those on behalf of the petitioner and those on behalf of the detaining authority and the State, have been urged before us. The principle point which was stressed by Mr. Jethmalani was that ground No. (1) which referred to 'Nav Nirman type of agitation' was vague and he also emphasised that all the activities which are attributed to the petitioner himself are part of democratic way of life by which agitation to ventilate grievances of public against rise in prices was proposed to be carried on and even a strong and fierce agitation is part of the democratic way of life. Mr. Jethmalani emphasized that no act of violence had been attributed to the petitioner himself and merely because it was decided to carry on the agitation against rising prices, it cannot be said that there was either incitement to violence or that violence was threatened. On the other hand, the learned Advocate General relied upon two aspects of the grounds, namely, that it was alleged against the petitioner that raid should be carried out at the places of adulterators and that there was an indication that if the police interfered with the agitation against price rise, there would be strong agitation of the people and the police or between public and the police. The learned Advocate General, in the context of this ground being vague, relied upon certain passages from the affidavit firstly of Shri R.V. Chandramouli, Secretary to Government, Home Department, Sechivalaya, Gandhinagar, being the affidavit dated August 29, 1980. It must be pointed out that this affidavit has been sworn for the purpose of pointing out circumstances under which the Ordinance come to be promulgated by the State Government. In paragraph 3.1, the three meetings, namely, of 28th July 1980, 5th August 1980 and the demonstration near Shahid Memorial on 9-8-80 which are referred to in paragraphs 1, 2 and 3 of the grounds supplied to the petitioner, are set out by the deponent. In paragraph 3.4 it has been stated:

I say that on 10th August, 1980 a procession was taken out by Bharatiya Janta Raksha against the price rise which started from Raipur Chakala at about 17-20 hours and passed through Khadia Char Rasta, Zakaria Masjid, Oriental Building, Swarai-narayan Mandir, Ghee Kanta Road, Electricity House and then reached Victoria Garden at about 19-00 hours. Then the Bharatiya Janta Paksha leaders immersed in Sabarmati river a symbolic price rise demon. Thereafter one of the leaders exhorted the people to participate in the agitation programme as announced. The said leader also called upon the people to demonstrate when the State Finance Minister attended the Gujarat Chamber of Commerce Hall, Ashram Road, Ahmedabad at 16-00 hours on 13th August, 1980 and to participate in Janta Flag Hoisting on 15th August, 1980, at Bhadra proposed by Janta Party. At the said meeting one of the party leaders also stated in his speech: 'We will bring the Congress M.L.As to the Sabarmati River and drown them in the river in the same way as we have immersed the symbolic price rise demon in the water today'.

In paragraph 3.5 it was stated:

I say that after the procession and the meeting were over, the dispersing crowd indulged in stone-throwing at the passing A.M.T.S. buses and Police Mobiles in Astodia, Khadia, Raipur, and Gandhi Road areas and the violence considerably increased in the days that followed.

3.6. I say that on 10th August, 1980 on account of various incidents of violence, stone-throwing, looting and breaking of shops, the Commissioner of Police, Ahmedabad clamped curfew in Khadia, Raipur, Manek Chowk and Gandhi Road from 22-00 hours till further orders.

3.7. The incidents of arsons, looting etc. also continued on 11th August, 1980, 12th August, 1980, 13th August, 1980, 14th August, 1980 and 15th August, 1980. A statement showing the various incidents which disturbed the public order during the period commencing from 10th August, 1980 and ending with 15th August, 1980 is annexed hereto and marked annexure 'A'. I say that on account of the incidents mentioned in annexure 'A', the Commissioner of Police imposed curfew in various disturbed parts of the City of Ahmedabad.

3.8. I say that the Governor of Gujarat found that the law and order situation in the City of Ahmedabad remained disturbed for the aforesaid last few days causing great hardships to the people in spite of steps taken under the provisions of existing laws to deal with that situation. It was therefore found necessary to deal effectively with persons acting in any manner prejudicial to the maintenance of public order in the city of Ahmedabad as also in areas where such situation was likely to arise. The Governor of Gujarat, therefore, in lawful and bona fide exercise of powers conferred on her by Clause (1) of Article 213 of the Constitution was pleased to make and promulgate the Ordinance and the Ordinance is legal and proper.

In paragraph 8 it has been pointed out that the notification declaring the city of Ahmedabad as a disturbed areas was issued under Section 3 of the Ordinance and was issued on August 16, 1980. In all, nine different areas in the State of Gujarat were declared to be disturbed areas for the purposes of the Ordinance and these different notifications were issued on 16th August, 17th August and 19th August, 1980.

19. Now, no where in the affidavit of Shri Chandramouli has it been alleged that the detenu himself indulged in any act of violence and thereby, disturbed public order. It has no where been alleged against him that barring attendance in the three meetings referred to in the grounds of detention he had himself acted in any manner prejudicial to the maintenance of public order or indulged in acts of violence. As Chandrachud J. has pointed out in Ram Bahadur's case (supra), merely stating that the petitioner advocated 'Nav Nirman type of agitation' does not amount to stating that he preached violence. As the Supreme Court did in Ram Bahadur's case, we shall not assume that the decision to start a programme of 'Nav Nirman type of agitation' amounted to a clarion call to violence. If the allegation against the petitioner is that he had preached violence, the grounds of detention must say so. Such serious accusation ought not to have been left to mere speculation and if there is not a whisper of violence in the grounds of detention or in the affidavit of the Commissioner of Police, how can we conclude that the petitioner exhorted the members of Janta Paksha to take to the path of violence in the pursuit of their agitation against price rise? So far as these allegations are concerned, all that is alleged against the petitioner is that his activities referred to in grounds (1), (2) and (3) regarding the three meetings of July 28, August 5 and August 9, 1980 and the atmosphere so created as a result of which others indulged in stone-throwing, arson looting and rioting. It must be recognised, as Chandrachud J. has pointed out in Ram Bahadur's case (supra), that it is a democratic right to voice contrary opinion and to agitate for the ventilation of grievances of the public. So long as there is no act calculated to disturb public order, it cannot be said that maintenance of public order was disturbed by the activities of the detenu. The detenu was within his rights as a citizen of our democratic State to agitate by peaceful non-violent means against the rising prices. Barring the raids on the shops and premises of adulterators and agitation as between the public and the police, if the police interfered with the agitation, there is not even a hint by which it can be said that what the detenu was arranging about or preaching about or agitating about would necessarily lead to acts of violence. Strong feelings between public and police is one thing and acts of violence against police or other members of the society is another thing altogether. Similarly, exposing food adulterators by raiding in the sense of holding demonstrations at their places does not necessarily mean breach of peace or preaching acts of violence. The raids which are referred to in this case mean going in a body at the premises and exposing the food adulterators and it is with a view to carry on agitation of this type, to expose food adulterators and to protest against rising prices, that the three meetings referred to in the grounds of detention were held. Neither the affidavit of Shri Chandramouli nor the affidavit of Shri Man Mohan Singh, Commissioner of Police, filed in this case, indicates that the detenu himself preached violence or was responsible for any acts of violence. It is undoubtedly true, as pointed out by Shri Chandramouli in his affidavit, that after the procession of 9th August 1980 when the crowd who had attended the procession and the subsequent meeting dispersed, stone-throwing and other violent activities took! place but because others indulged in such activities it cannot be said that the detenu was responsible for those activities. If what the petitioner was preaching was legitimate exercise of a citizen's right in a democracy, because others indulged in acts of violence it cannot be said by way of a prognosis that with a view to preservation of public order it was necessary to detain the petitioner. As has been pointed out in paragraph 21 in Ram Bahadur's case (supra), 'an order of detention passed under any such law has again to answer the test that there has to be a nexus between the acts of the detenu founding the order of detention and the purpose of detention.' The purpose of detention is to prevent acts prejudicial to the maintenance of public order. In view of the above observations of Chandrachud J. we are prepared in this case to proceed on the footing that disturbance of public order did take place in the city of Ahmedabad after the procession of 9th August 1980 which was held in the evening, but the nexus between the acts of the detenue mentioned in the grounds of detention which are the foundation for the order of detention and the purpose of detention is lacking in this case. The acts which are attributed to the petitioner were legitimate acts done in exercise of the right to agitate against the rise in prices, but it is a far cry from that exercise of the right to the acts of violence in the absence of any link either because of actual acts of violence committed by the detenu or incitements to violence by the detenu.

20. One may not approve of the type of agitation which was advocated by the detenu, but if what the petitioner was seeking to do was the exercise of his right as a citizen of a democratic State, namely, to carry on agitation in different forms, if because of that agitation others took advantage of the tense situation and committed acts of violence and disturbed public order, the detenue, the petitioner before us, cannot be said to have incited others to acts of violence. As Mr. Justice Holmes has stated, it is the opinion with which one disagrees, that is required to be protected in a democracy.

21. The principle of law is that a citizen cannot be prevented from exercising his democratic right because it is apprehended that due to the situation created by such exercise democratic right by that particular individual others are likely to commit acts of violence or breaches of public order and such apprehension is no ground for even preventing that citizen from exercising such democratic right. All that the authorities can do and should do is to take preventive action as prescribed by law but the extraordinary provisions of the preventive detention under the Ordinance in order to prevent the person concerned from acting in any manner prejudicial to the maintenance of public order is a different thing altogether.

22. In the light of the decision in Ram Bahadur's case (supra) it must be held that the reference to programmes like Nav Nirman is vague and if one of the grounds of detention is vague, the entire order becomes bad as pointed out by the Supreme Court both in Ram Bahadur's case and in the other cases discussed above. Under these circumstances, since ground No. (1) is bad on the ground of vagueness, the entire order of detention must be held to be bad. Reference to the acts of stone-throwing, arson looting and rioting which came to be committed by others in the atmosphere generated by the activities of the detenu cannot be said to be a relevant ground, as pointed out in paragraph 21 in Ram Bahadur's case. If the nexus between the acts of the detenu set out in the grounds of detention and the purpose of detention is lacking, then, that ground is irrelevant. Even taking all the three grounds as cumulative, there is irrelevance because the grounds of detention taken as a whole do not indicate any acts on the part of the detenu which would indicate that apart from the exercise of the right of the citizen of a democratic State, the detenu was advocating anything which would interfere with the maintenance of public order. Under these circumstances, in our opinion, the contention of Mr. Jethmalarii that the grounds of detention are vague so far as reference to Nav Nirman is concerned and irrelevant so far as reference to the agitational programmes advocated by the petitioner and his being member of Janta Paksha are concerned is correct. Hence, both on the ground of irrelevance and vagueness the grounds of detention must he held to be bad. Since the grounds were vague and irrelevant, the petitioner could not have made an effective representation against the grounds of detention. As has been pointed out, when the grounds are vague and irrelevant, the detenue is deprived of an opportunity to make an effective representation against the detention order, anything said by him to clear his conduct would then at best be a fishing answer to a roving charge such a representation is liable to be rejected out of hand as being besides the point.

23. In this connection, it must be pointed out that the learned Advocate General on behalf of the respondents urged before us that every one in Gujarat knows what programmes like Nav Nirman involve. As Chandrachud J. has pointed out, it is only for an expert and a dispassionate examination by historians to state, after analysing the historical events from considerable distance, to say what this Nav Nirman involved. Green facts of contemporary life are an unsure foundation for raising an inference that carrying on of Nav Nirman type of agitation or advocating for a Nav Nirman type of agitation necessarily involved advocating of acts of violence.

24. This being our conclusion, it is not necessary to refer to other submissions of Mr. Jethmalani, but we must point out that under Section 9(2) of the Ordinance, representation has to be made against the order to the State Government. Under Article 22(5) of the Constitution:

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

It is true that by virtue of Section 21 of the Bombay General Clauses Act, by which power has been reserved to the Commissioner of Police under Section 15 of the Ordinance, it was open to the detenu to make a representation to the Commissioner of Police but it must be borne in mind that once the State Government approves of the order of detention under Section 4(3) it is the act of the approval which sets the seal to the detention and the earlier order of the Commissioner of Police recedes in the background and therefore Section 9(2) of the Ordinance provides for representation being made to the State Government. In the instant case, Article 22(5) of the Constitution cannot be said to be infringed because Article 22(5) speaks of a representation against the order of detention but does not specify to which authority the representation should be made. It is true that, as the provisions of the Ordinance stand, in view of the provisions of Section 15, power to rescind the order of detention remains in the Commissioner of Police by virtue of Section 4(2) read with Section 21 of the Bombay General Clauses Act. Under Section 15, the power to revoke an order of detention passed by whichever authority it may be is conferred upon the State Government. But it is not possible for us to accept the contention that because in the grounds of detention the Commissioner of Police informed the petitioner that he could make a representation addressed to the State Government, there was any misleading action on the part of the Commissioner of Police. The petitioner was being informed in that particular paragraph of the grounds of detention about his rights under Section 9(1) of the Ordinance, and since that Section speaks of a right to make a representation to the State Government, even if the provisions of Article 22(5) are read into the Ordinance, there is no conflict between Section 9(2) and Article 22(5). It must be pointed out that the validity of the provisions of Section 9(1) is not challenged at any stage of hearing before us and therefore, if the Commissioner of Police informed the detenue, the petitioner before us, of his rights under Section 9(1) of the Ordinance, it cannot be said that the petitioner was misled. This ground of challenge to the order of detention cannot therefore be sustained.

25. As regards the last submission of Mr. Jethmalani, namely, that there was some other material to which the Commissioner of Police had access other then what is disclosed by the affidavit of Commissioner of Police and the affidavit filed by Shri Chandramouli, it must be pointed out that in his affidavit Shri Chandramouli mentions the events which happened after the meeting in Sabarmati river at about 19-00 hours on 9th August 1980. Mr. Jethmalani is right that the disturbances which foil owed the immersion programme at Sabarmati river led to acts of violence and that it was against that background and the subsequent acts of violence that the Ordinance was promulgated by the Governor and it is because there is no specific allegation against the petitioner either about incitement to violence or indulgence in acts of violence that we are prepared to accept the first contention of Mr. Jethmalani that the grounds mentioned in the order of detention are vague and irrelevant.

26. The result therefore is that because the grounds of detention are vague in some respects and irrelevant in other respects, it must be held that the order of detention based on these grounds was vitiated and must be quashed. We accordingly allow this special criminal application and set aside the order of detention dated August 18, 1980 and the grounds of detention in support of that order. The Order of detention Annexure 'A' and the grounds Annexure 'B' are both quashed and set aside.

27. Rule is made absolute accordingly, with no order as to costs.


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