B.N. Banerjee, J.
1. The power of the State Government to determine the place of detention of the petitioner and conditions as to his maintenance and discipline, under Rule 30, Sub-rule (4) of the Defence of India Rules, is the subject-matter of challenge in this Rule.
2. The petitioner says that he is a citizen of India, a political worker and the Secretary of the West Bengal Committee of the Communist Party of India. On October 29, 1984, the Government of West Bengal made the following order against the petitioner:
Whereas the Governor is satisfied that with a view to preventing Sri Promode Das Gupta, son of Sri Motilal Das Gupta of 164, Lower Circular Road, and 23, Alimuddin Street, Calcutta, from acting in any manner prejudicial to the defence of India and the maintenance of public order, it is necessary to make an order directing that he be detained;
Now, therefore, the. Governor, in exercise of the power conferred by Rule 30 of the Defence of India Rules, 1982, is pleased hereby to direct that the said person be detained and kept in custody in the Dum Dum Central Jail during the period of such detention.
On the same day, the respondent Deputy Secretary addressed the following letter to the Superintendent, Dum Dum Central Jail:
I am directed by order of the Governor to enclose a copy of this department order No. 5191-HS., dated the 29th October, 1964, issued under Rule 30(1)(h) of the Defence of India Rules, 1962 and to say that the person so directed to be detained shall be treated as a Division I undertrial prisoner under the West Bengal Jail Code.
The petitioner feels aggrieved by his detention at Dum Dum Central Jail and also by the conditions of such detention and has moved this Court for relief.
3. According to the petitioner, the Defence of India Act does not confer any power on the State Government to fix a place of detention for a person detained thereunder, which can only be done by Rules properly framed under the Act. Further, according to the petitioner, the respondent Deputy Secretary arbitrarily determined a place of detention for the petitioner and the respondent No. 2, Superintendent, Dum Dum Central Jail, is illegally keeping him confined in custody in the said jail. Also, according to the petitioner, he is being accorded niggardly treatment in the said custody in respect of conditions of detention, amenities and family allowance. It is contended, on behalf of the petitioner, that the order of detention is unlawful and deserves to be quashed.
4. The petitioner made this application from custody and the Superintendent, Dum Dum Central Jail, forwarded the application to the Registrar, Appellate Side, of this Court. The matter was at first placed before a Division Bench taking criminal matters. Since that Bench was not invested with jurisdiction to deal with matters under Article 226 of the Constitution, the application was directed to be placed before the Chief Justice for orders. By an order, dated March 19, 1965, the learned Chief Justice directed that the matter be placed before the Constitution Bench for disposal. At that stage there was no Advocate appearing for the petitioner. Later on, however, Mr. Arun Prokash Chatterjee, Advocate, entered appearance for the petitioner and prayed for leave to amend the prayers in the petition, which were not in order. The prayer was granted, Thereupon, Mr. Chatterjee amended the prayers and asked for a writ of certiorari for the quashing of the order of detention and for a mandate upon the respondents directing them to forbear from enforcing the detention and to withdraw the. detention order dated October, 29, 1964. On the amended prayers this Rule was issued.
5. Mr. Arun Prokash Chatterjee raised four contentions in support of this Rule. He contended, in the first place, that under Clause (15) of Section 3(1) of the Defence of India Act, it was open to the Central Government, by notification in the Official Gazette, to make Rules, notwithstanding anything in any other law for the time being in force, for-
the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or of having acted, acting, being, about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner.
Such a Rule, namely Rule 30, Sub-rules (1) and (4), was framed under the Defence of India Act couched in the following language:
30(1). The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence the public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the Community it is necessary so to do, may make an order-
(a) * * * *(b) directing that he be detained;(C) * * * *(d) * * * *(e) * * * *(f) * * * *(g) * * * *(h) * * * *(2) * * * *(3) * * * *(4) So long as there is in force in respect of any person such an order as aforesaid directing that he detained, he shall be liable to be detained in suck place, and under such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline, as the Central Government or the State Government, as the case may be, may from time to time determine.
The said Rule, Mr. Chatterjee contended, did not itself provide for the place of detention or for conditions as to maintenance, discipline and punishment of offences and breaches of discipline but left the same to the determination of the Central Government or the State Government, as the case may be, from time to time. In the absence of any specific Rule, it was contended, it was not permissible to detain a person anywhere by executive determination or the impose upon him conditions of detention.
6. The argument in the form made cannot be upheld Rule 30(4), if validly framed, permits the' Central Government or the State Government after mine both place and conditions of detention. This detention, according to the language used, may be] made on individual or ad hoc basis for each person' detained.
7. Faced with this difficulty, Mr. Chatterjea advanced the second line of argument to the effect that the word 'determination' in Rule 30(4) was equivalent to rule-making. Using that proposition as springboard, he argued two consequential propositions namely, (i) the Central Government was not entitled to sub-delegate rule making power to the State Government, which Government determined the place of detention and the conditions thereof for the petitioner and (ii) the State Government did not frame the Rule according to the procedure as in Section 3(1) of the Defence of India Act and was not competent itself to frame such Rules. In support of the proposition that 'determination' was really 'rule-making', Mr. Chatterjee strongly relied on a Judgment of the Nagpur High Court in Surajprasad v. Yeshwanta I.L.R. (1944) Nag 629 : AIR 1944 Nag 221. In that case Bose, J. was considering the powers of the High Court to direct the attendance of a person, detained under the Defence of India Act, 1939 for the purpose of arguing his own case before the High Court In that context' his Lordship examined the provisions of Section 2(2) of the Defence of India Act, 1939, which empowered the Central Government to make 'orders' for 'apprehension and detention in custody of any person reasonably suspected of etc.' and also the provisions of Rule 26(5) and (5A) of the Defence of India Rules, 1939, which were couched in the following language:
26 (5). So long as there is in force in respect of any person such an order as aforesaid directing that he be detained he shall be liable to be detained in such place and under such conditions as to maintenance, discipline and the punishment of offence and breaches of discipline, as the Central Government or the Provincial Government, as the case may be, may from time to time determine.
(5A). Where the power to determine the place of detention is exercisable by the Provincial Government, the power of the Provincial Government shall include the power to determine a place of detention outside the Province:Provided that * * *
On consideration of the aforesaid provisions, his Lordship observed:
The change in language is significant and was, I think, intended because it is obvious Government would not want to pass orders afresh in each particular case regarding the conditions of detention though it has to do so regarding the detention itself. The conditions would be specified generally and make applicable to all. The rules drawn up under Sub-rules 5 and 5A are therefore not the 'Orders' contemplated by Sections 2 and 16 and authorised by Rule 26.
The above judgment, in my opinion, does not support the contention of Mr. Chatterjee. An 'order of detention made under Sub-rule (1)(b) of Rule 30 may be different from a 'determination' made under Sub-rule (4), but that does not establish the contention of Mr. Chatterjee that a 'determination' under Sub-rule (4) must be made by rules framed under the Defence of India Act and not otherwise. There is no bar to the making of separate Rules providing for places of detention or conditions of detention. But it without making such separate Rules, power is conferred by the Defence of India Rules themselves upon the State Government (or the Central Government) to select the place of detention and also to prescribe conditions of detention in respect of a particular person, ordered to be detained, that power need not without more be condemned as bad.
8. Since I hold that determination can be made on ad hoc basis or separately for separate persons detained and not necessarily by Rules, the question of sub-delegation of rule-making power does not arise and I need not consider the contention.
9. Mr. Chatterjee then argued that the determination that the petitioner be treated as Division I undertrial prisoner, under the West Bengal Jail Code, while in detention, was made not by the State Government but the respondent Deputy Secretary. This argument, proceeds on an incorrect reading of the letter, dated October 29, 1964, from the Deputy Secretary to the Superintendent of Dum Dum Central Jail already set out. By that letter the Deputy Secretary conveyed an 'order' of the Governor to treat the petitioner as Division I undertrial prisoner. Since all determinations by the State Government are to be made in the name of the Governor, I cannot treat the determination, as made by anybody other than the State Government.
10. Mr Chatterjee lastly contended that the conditions of detention were niggardly and more stringent than those imposed upon persons detained under the Preventive Detention Act, 1950. He argued that the conditions must be liberalised or condemned as discriminatory. In reply to this contention, Mr. Das learned Junior Standing Counsel, drew my attention to documents collectively marked Annexure 'C' to the affidavit-in opposition and contended that the State Government showed due consideration in the matter of supply of amenities and allowances to persons detained under the Defence of India Rules. Were I the forum competent to consider the contention, I might have con learned the amenities granted and the allowance allowed as ungenerous or niggardly or disproportionate to the cost of modern living conditions. But the power to determine conditions off detention, including amenities to be granted or allowance to be allowed, lies elsewhere. I cannot compel' that authority to be more generous. Moreover, this country is now passing through an emergency; costs of preparing the country for defence may be very high the Government may have been compelled by budgetary considerations in curtailing of other heads of expenditure. I do not know.
11. The argument on discriminatory conduct towards persons detained under the Defence of India Rules may be shortly disposed of These persons form a separate class, namely, persons detained in custody because of emergency. They cannot be compared to persons who may be kept in detention under the Preventive Detention Act, 1950. Further, by notification, dated November 3, 1982, made under Article 359(1) of the Constitution, the President has declared that the right of any person to move the Court for enforcement of the right conferred by Article 14 shall remain suspended during the period of continuance of the proclamation of emergency. I do not, therefore, make much of this argument.
12. For the reasons stated I discharge this Rule but make no order as to costs.
13. C.R. Nos. 416(W), 417(W) and 432(W) of 1965:-These three Rules are disposed of by one judgment, because the points involved in all these Rules are the same.
14. The petitioner in Civil Rule No. 416(W) of 1965, Sri Jamini Bhusan Saha, is a member of the West Bengal Legislative Assembly, elected from Noapara constituency. The petitioner in Civil Rule No. 417(W) of 1965, Sri Gopal Bose, is a member of the West Bengal Legislative Assembly, elected from Naihati constituency. The petitioner in Civil Rule No. 432(W) of 1985. Sri Niren Ghosh, is a member of the Council of States (Rajya Sabha) House of the Parliament, elected from West Bengal. They are all detained in the Dum Dum Central Jail by separate orders of detention made under Rule 30(1)(b) of the Defence of India Rules.
15. Aggrieved by the detention and the conditions thereof, the petitioners moved, this Court for relief. The applications were made from custody and the Superintendent, Dum Dum Central Jail forwarded the applications to the Registrar, Appellate Side, of this Court. The matters were at first placed before a Division Bench taking criminal matters. Since that Bench was not invested with jurisdiction to deal with matters under Article 226 of the Constitution, the applications were directed to be placed before the Chief Justice for orders. The learned Chief Justice thereupon directed that the matters be placed before the Constitution Bench for disposal. At that stage, there was no Advocate appearing for the petitioners. Later on, however, Mr. Arun Prokash Chatterjee, Advocate entered appearance for the petitioners and prayed for leave to amend the prayers of the petition, which were not in order. The prayer was granted. Thereupon, Mr. Arun Prokash Chatterjee, amended the prayer in the petition in Civil Rules Nos. 416(W) and 417(W) of 1965 and asked for a mandate upon the respondents to allow or permit the petitioners or to make arrangement for the petitioners to attend the sessions of the West Bengal Legislative Assembly and for a further mandate upon the respondents directing them to withdraw or cancel the detention order. He similarly amended the prayer in the petition in Civil Rule No. 432(W) of 1965 and asked for a mandate upon the respondents to allow or permit the petitioner or to make arrangement for the petitioner to attend the sessions of the Council of States and for a further mandate upon the respondents to withdraw or cancel the order of detention. On the amended prayers Rules were issued against respondents Nos. 3, 4 and 5, respectively, the Superintendent of Dum Dum Central Jail, the Deputy Secretary to the Government of West Bengal, Home Department, and the State of West Bengal in Civil Rules Nos. 416(W) and 417(W) of 1965, Similarly, on the amended prayers there was a Rule issued against respondents Nos. 1, 2 and 3 respectively the State of West Bengal, the Superintendent, Dum Dum Central Jail and the Deputy Secretary to the Government of West Bengal, Home Department, in Civil Rule 432(W) of 1965. The prayer for issue of the Rules against the other respondents named in the respective petitions was Rejected.
16. The points urged in support of the prayer for withdrawal or cancellation of the order of detention were the same points as urged in Civil Rule No. 420(W) of 1965, which I have already decided this day against the petitioner in the said Rule. For the same reasons, I do not allow this prayer of the petitioners in these Rules.
17. The other point urged in support of the Rules was that the respondents must allow or permit the petitioners in Civil Rules Nos. 416(W) and 417(W) of 1965 or to make arrangement for them to attend the sessions of the West Bengal Legislative Assembly so that they may participate in the business before the House. Similarly, the respondents, it was urged, must allow or permit the petitioner in Civil Rule No. 432(W) of 1965 or to make arrangement for him to attend the sessions of the Council of States (Rajya Sabha) so that he may participate in the business before that House.
18. Mr. Arun Prokash Chatterjee, learned Advocate for the petitioners, invited my attention to Articles 101(4) and 190(4) of the Constitution, which provide that if for a period of sixty days a member of either house of the Parliament or of a House of the Legislature of a State absents from all the meetings of the House without the permission of the House, the House may declare his seat vacant. He contend that the Government must not be allowed to detain a person so as to compel him to absent himself from the meetings of the Legislature or the Parliament and thus cause him to lose his seat. He further contended that the detention or a member of the Parliament or of the State Legislature was a breach of the privilege of the Parliament or of the State Legislature. In support of his first contention Mr. Chatterjee read out to me the following observation by Harries C.J. in Ausumali Mazumdar v. State of West Bengal : AIR1952Cal632 , which was a case of detention under the Preventive Detention Act:
It must be remembered however that absence for sixty days without permission of the House does not automatically lead to vacation of the seat. The House in such a case may declare the seat vacant. But it may not, and I find it impossible to believe that a House of Parliament would declare a seat vacant by reason of absence where the cause of absence was due to detention or imprisonment, unless the House thought that the conduct of the person concerned was such as really to make him unfit to be a member of the House. Though there is no such provision in England, it cannot be overlooked that the House of Commons in England may expel a person for reasons which do not disqualify him and declaring a seat vacant under Article 101(4) of the Constitution is action very similar to expulsion and I imagine that action under that clause would never be taken except for good cause.
Mr. Chatterjee contended that the above observation went to show that the Parliament and the State Legislature had the power to declare a seat of a person, detained under the Defence of India Rules, vacant, on account of his continued absence. I do not see how the observation helps Mr. Chatterjee. Assuming, that the Parliament and the State Legislature both possess the power to declare a seat of a detained person vacant on account of his continued absence, when good cause for the same exists, that does not establish the other proposition that such a person must not be kept in detention, even if law permits.
19. Mr. Chatterjee tried to avoid this difficulty with the contention that the members of the Parliament and of the State Legislature were privileged from being imprisoned or restrained except upon a criminal charge, without the order of the House concerned. He invited my attention to Article 105(3) and Article 194(3) of the Constitution, which, inter alia provided that the powers, privileges and amenities of the members of the Parliament or of the State Legislature would be, as may be from time to time determined by the Parliament and the State Legislature, and, until so defined, would be those of the House of Commons of the Parliament of the United Kingdom. He also invited my attention to the following passage from Halsbury's Laws of England, Simonds Edition, Volume 28, Articles 894 and 895:
94. Origin. The privileges of Parliament are based partly upon custom and precedents which are to be found in the Rolls of Parliament and the journals of the two Houses and partly upon certain statutes which have been passed from time to time for the purpose of making char particular matter wherein the privileges claimed by either House of Parliament have come in conflict either with the prerogatives of the Crown or with the rights of individuals.
* * * *Privileges claimed by both Houses.
895. Freedom from arrest. It is claimed by resolutions of both houses that no lord of Parliament or member of the House of Commons may be imprisoned or restrained without the order or sentence of the House of Lords or House of Commons except upon a criminal charge. In order to claim privilege of Parliament a lord of Parliament must first take the oath but a person under arrest at the time he succeeds to a peerage may claim his discharge on the plea of privilege. In the case of members of the House of Commons, privilege of Parliament is of affected by the fact that a member has not yet taken the oath; and a member who is in custody on civil process may be liberated upon his election in virtue of his privilege.* * * *
Basing his argument on Article 105(3) and Article 194(3) and the passage quoted above, Mr. Chatterjee contended that the petitioners were immune from detention because of their membership either of the Parliament or of the State Legislature. The contention is unworthy of acceptance. The privilege claimed by the petitioners is an imaginary privilege and does not in fact exist either in England or in this country. This identical point came up for consideration in Ansumali's case, : AIR1952Cal632 before the Special Bench of this Court and was negatived with the following observations:
The House of Commons during the last War had to consider whether detention under orders made under powers given by the Defence of the Realm Act constituted a breach of privileges and whether a member of Parliament detained under such order could not be released at the instance of Parliament. The matter was referred to a Committee of Privileges which reported that the arrest and detention of such member, namely, one Capt. Ramsay, did not amount to a breach of Parliamentary Privilege. The conclusions of the Committee of Privileges are summed up in these words
Your Committee's conclusions are as follows:
The precedents lend no support to the view that Members of Parliament are exempted by privilege of Parliament from detention under Regulation 18B of the Defence (General) Regulations, 1939. Preventive arrest under statutory authority by executive order is not within the principle of the cases to which the privilege from arrest has been decided to extend. To claim that the privilege extends to such cases would be either the assertion of a new Parliamentary privilege or an unjustified extension of an existing one.
It is to be observed that Parliament took no action in respect of the detention of Capt. Ramsay which continued for many years. It seems to follow therefore that the English Parliament claims no privilege for its members against preventive detention or against executive order made under legislative authority. If no such privilege exists or is claimed in the United Kingdom then it follows that no such privilege exists at the present moment in India.
20. If no such privilege exists, then the argument based on such assumed privilege must be negatived.
21. For the reasons stated I discharge these Rules but make no order as to costs.