Judges: H.J. Kania, C.J., B.K. Mukherjea, M.C. Mahajan, M. Patanjali Sastri, Sudhi Ranjan Das and Sir Saiyid Fazl Ali, JJ.

Facts:

The petitioner, who was held under the Preventive Detention Act, 1950 (hereinafter, 'impugned Act'), requested a writ of habeas corpus and his release from detention under Article 32 of the Constitution. This petition was filed on the grounds that the impugned Act was ultra vires and, as a result, in violation of the Constitution's provisions for Articles 13, 19, 21, and 22 of the Constitution. He, therefore, challenged the legality of his detention.

Issues:

(i) Whether provisions of impugned Act, and in particular, Sections 8, 7, 10-14 Preventive Detention Act, 1950 are in violation of the Constitution's provisions for Articles 13, 19, 21, and 22?

(ii) Whether law relating to preventive detention infringes fundamental right as to freedom of movement?

(iii) Whether law relating to preventive detention are subject to judicial review as to reasonableness under Article 19(5) of the Constitution?

(iv) Whether Article 22 of the Constitution is a complete code as to preventive detention?

(v) Whether the words 'law' and 'procedure established by law', as appearing in Article 21 of the Constitution include rules of natural justice?

(vi) Whether American decisions on 'due process of law' have any value in Indian jurisprudence?

(vii) Whether it is permissible to make reference to Constituent Assembly Debates and Report of Drafting Committee while constructing provisions of Constitution?

Law:

Constitution of India - Article 19 - Article 19(1)(a) guarantees the citizens of India freedom of speech and expression. Article 19(1)(b) guarantees the citizens of India to collect peacefully without arms. Article 19(1)(c) guarantees the citizens of India, the right to form associations and unions. Article 19(1)(d) says that any citizen of India is allowed free movement across any part of India, be it in any territory. Article 19(1)(g) guarantees any citizen of India to practice any profession or to carry out any occupation, trade or business.

Constitution of India - Article 19(2) - It permits the government to impose reasonable restrictions upon the freedom of speech and expression "in the interests of public order".

Constitution of India - Article 21 - It reads, "no person shall be deprived of his life or personal liberty except according to a procedure established by law".

Two rights are guaranteed under Article 21, the 'right to life' and the 'right to personal liberty'. It forbids the taking away of the aforementioned rights except in accordance with the procedure established by law.

Constitution of India - Article 22(1) - Any individual who is in custody must be made aware of his grounds of arrest. Additionally, his right to speak with a lawyer cannot be restricted.

Constitution of India - Article 22(2) - The right to appear before a magistrate in person within 24 hours, excluding travel time.

Constitution of India - Article 22(5) - The person who is being held should be informed of the reasons behind it and he must be given the chance to make a defence of his or her case as well.

Constitution of India - Article 22(7) - This article grants the legislature the authority to enact laws, details the processes for advisory board inquiries, and specifies the length of detention.

Contentions:

Petitioner

(i) As the preventive detention order results in the detention of the applicant in a cell, the rights specified in Article 19(1)(a), (b), (c), (d), (e) and (g) of the Constitution have been infringed.

(ii) Because of his detention he cannot have a free right to speech as and where he desired. He claimed similar infringement of rest of the rights mentioned in sub-clauses (b), (c), (d), (e) and (g) of Article 19 of the Constitution.

(iii) Article 19(1)(d) of the Constitution expressly gives the right 'to move freely throughout the territory of India'. By the confinement of the petitioner under the preventive detention order, his right to move freely throughout the territory of India is directly abridged. Therefore, the State must show that the impugned legislation imposes only reasonable restrictions on the exercise of that right in the interests of the general public or for the protection of the interests of any Scheduled Tribe, under Article 19(5).

(iv) Articles 19 and 21 of the Constitution should be read together as implementing each other. Article 19 gave substantive rights to citizens while Article 21 prescribed that no person can be deprived of his life and personal liberty except by procedure established by law.

(v) Indian Constitution gives the same protection to every person in India, as the Constitution of USA gives to its citizen, except that in the United States 'due process of law' has been construed by its Supreme Court to cover both substantive and procedural law. In India, only the protection of procedural law is guaranteed.

(vi) The omission of the word 'due' made no difference to the interpretation of the words in Article 21 of the Constitution. The word 'established' was not equivalent to 'prescribed'. It had a wider meaning.

(vii) The word 'law' in Article 21 of the Constitution did not mean enacted law because that will be no 'legislative protection' at all. If so construed, any Act passed by the Parliament or the State Legislature, which was otherwise within its legislative power, can destroy or abridge this right.

(viii) Section 3 of impugned Act prescribes no limit of time for detention and therefore the legislation is ultra vires.

(ix) Right to make a representation in Articles 22(5) and 21 of the Constitution must carry with it a right to be heard by an independent tribunal. In the absence of it, the making of a representation has no substance, because it is not an effective remedy.

(x) Rights declared by Articles 19 and 21 of the Constitution are the rights of a free citizen. If he has already been deprived of his liberty in the circumstances referred to in Articles 20, 21 and 22, then it would be idle to say that he still enjoys the right referred to in Article 19.

Respondent

(i) Subject of preventive detention does not fall under Article 21 of the Constitution at all and is covered wholly by Article 22.

(ii) Article 22 of the Constitution, especially clauses (4) to (7), formed a complete code of constitutional safeguards in respect of preventive detention. In any given circumstance, if these provisions are conformed to, the validity of any law relating to preventive detention could not be challenged.

(iii) Freedom of movement to which reference has been made in Article 19(1)(d) of the Constitution is not the freedom of movement to which Blackstone and other authors have referred. It is a different species of freedom which is qualified by the words 'throughout the territory of India'.

(iv) The word 'law' which is used in the phrase 'procedure established by law' in Article 21 of the Constitution means State-made law or law enacted by the State.

(v) Each of the rights guaranteed under Articles 19(1)(a) to (g) of the Constitution is considered separately from the point of view of a similar right in the other citizens. Individual liberty must give way, to the extent it is necessary, when the good or safety of the people generally is concerned.

(vi) The right to freedom of speech and expression is given by Article 19(1)(a) of the Constitution. But Article 19(2) provides that such right shall not prevent the operation of a law which relates to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.

(vii) A similar analysis of Articles 19(3) and (4) of the Constitution shows similar restrictions imposed on similar grounds.

(viii) In the same way Article 19(2) also permits reasonable restrictions in the exercise of the right to freedom of movement throughout the territory of India. It also permits restrictions on the right to reside and settle in any part of the territory of India or the right to acquire, hold and dispose of property. However, such reasonable restrictions on the exercise of such right must be in the interest of the general public.

(ix) The specified rights of a free citizen are thus controlled by what the framers of the Constitution thought were necessary restrictions in the interest of the rest of the citizens.

(x) The Parliament by Preventive Detention Act, 1950 has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention. It also has given him a right to make a representation. The impugned Act has thus complied with the requirements of Article 22 of the Constitution.

Analysis:

Section 14 of Preventive Detention Act, 1950 contravenes the provisions of Article 19(5) of the Constitution

(i) Section 14 of impugned Act contravenes Article 19(5) of the Constitution in so far as it prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made. It further prohibits disclosure of representation made by him against the order of detention. To that extent Section 14 of impugned Act ultra vires and void.

(ii) It is improper to read Article 19 of Constitution as dealing with the same subject as Article 21. Article 19 gives the rights specified therein only to the citizens of India while Article 21 is applicable to all persons. The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India. Moreover, the protection given by Article 21 of Constitution is very general. It is of 'law' - whatever that expression is interpreted to mean.

The legislative restrictions on the law-marking powers of the legislature are not here prescribed in detail as in the case of the rights specified in Article 19 of Constitution. Article 19 of Constitution should, therefore, be read as a separate complete article.

Per Sudhi Ranjan Das, J., the phrase 'personal liberty' is used in Article 21 as a compendious term including within its meaning all sorts of rights which contribute to make up the personal liberties of persons. Article 19 of the Constitution guarantees some of the significant aspects of personal liberty as autonomous rights.

(iii) Section 14 of the impugned Act, contravenes Article 19(5) of the Constitution. It prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made or the representation made by him against the order of detention. To that extent, impugned provision is ultra vires and void.

It also prevents the Court from calling upon any public officer to disclose the substance of those grounds. Production of the proceedings or report of the advisory board may be declared confidential. If this provision is permitted to stand, the Court can have no material before it to determine whether the detention is proper or not.

(iv) It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases mentioned in Section 12(1)(a) or (b) of impugned Act.

(v) An examination of the grounds for these purposes was made impossible by Section 14 of impugned Act, and the protection afforded by Articles 22(5) and 32 was rendered nugatory.

Section 14 of impugned Act contravenes the Articles 22(5) and 32 of the Constitution. It prohibited the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or the representation made by him against the order of detention. It prevented the Court from examining them for the purposes aforesaid, and to that extent it must be held under Article 13(2) of the Constitution to be void.

Section 3 of the Preventive Detention Act, 1950 is not invalid.

(i) An executive officer is not given any legislative authority under Section 3 of the impugned Act. It is not unlawful on this basis since it only grants the enforcement of the legislation passed by the legislature to the designated official.The absence of an objective test for establishing whether legal requirements have been met by an action is not a reason to declare the aforesaid section unconstitutional.

Section 7 of the Preventive Detention Act, 1950 is not invalid.

(i) Simply because Section 7 of the impugned Act does not allow for an oral hearing or the chance to present evidence, but only grants the right to make a representation, does not render it unconstitutional. The right to make a representation provided by Article 22 of the Constitution does not always imply the right to an oral hearing or the opportunity to submit evidence.

Section 11 of the Preventive Detention Act, 1950 is not invalid.

(i) The provision in Section 11 of the impugned Act which states that a person may be held for whatever long the State deems appropriate is not illegal since it does not violate Article 22(7) of the Constitution.

Section 12 of the Preventive Detention Act, 1950 is not invalid.

(i) According to Article 22(7) of the Constitution, Parliament may specify the conditions or class(es) of circumstances under which a person may be detained for a period greater than three months without consulting an advisory board. The Parliament does not necessarily need to impose both.

(ii) The matters referred to Section 12(1)(a) and (b) of the impugned Act constitute a sufficient description of such circumstances or classes of cases. Section 12 of the impugned Act is not therefore open to the objection that it does not comply with Article 22(7) of the Constitution.

Notwithstanding the illegality of Section 14 of Preventive Detention Act, 1950, remaining Act valid

(i) The impugned Act minus Section 14 of impugned Act can remain unaffected. The omission of this section will not change the nature or the structure or the object of the legislation. Therefore the decision that Section 14 is ultra virus does not affect the validity of the rest of the Act.

(ii) Per M.C. Mahajan, J., Section 14 of impugned Act does materially affect the fundamental rights declared under Part III of the Constitution and for this reason it must be held to be illegal and ultra vires. However, this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way. The whole Act cannot, therefore, be held to be ultra vires.

Preventive Detention Act, 1950 permitting preventive detention is not in conflict with the rights mentioned in Article 19(1) of Constitution

(i) Article 19 of Constitution does not purport to cover all aspects of liberty or of

personal liberty. In that article only certain phases of liberty are dealt with. 'Personal liberty' would primarily mean liberty of the physical body. The rights given under Article 19(1) of Constitution do not directly come under that description. They are rights which accompany the freedom or liberty of the person. By their very nature they are freedoms of a person assumed to be in full possession of his personal liberty.

If Article 19 of Constitution is considered to be the only article safeguarding personal liberty, several well recognised rights, as for instance, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution.

(ii) Per Sudhi Ranjan Das, J., the rights under Article 19(1)(a) to (e) and (g) of the Constitution cannot be invoked by a citizen who has lost his or her freedom of movement due to legitimate detention because of an arrest or conviction for an offence.

Article 19(5) of the Constitution is not applicable to a law dealing to preventive detention

(i) Rights under Article 19(1)(a) to (e) and (g) ceases when lawful detention starts. Hence, Article 19(5) of the Constitution cannot be used to determine the legality of a preventative detention order.

(ii) Per M.C. Mahajan, J., the requirements of Article 19(5) of the Constitution do not apply to a legislation dealing to preventive detention. This is regardless of the precise extent of Article 19(1)(d) and Article 19(5) of the Constitution, since 'there is a particular self-contained provision in Article 22 regulating it'.

Article 22 of the Constitution does not form a complete code of constitutional safeguards relating to preventive detention.

(i) Article 21 will apply to procedural issues that are expressly or impliedly not covered by Article 22 but cannot be regulated by it to the degree that provision is provided in Article 22 of the Constitution.

(ii) Per Sudhi Ranjan Das, J., by establishing a mechanism, Article 21 of the Constitution safeguards substantive rights. The minimum norms of process are outlined in Article 22 and cannot be waived or ignored by the Parliament or anybody else.

(iii) Per M.C. Mahajan, J., restrictions under Article 21 of the Constitution cannot be investigated or restricted by Article 22. The later offers a self-contained set of constitutional protections pertaining to preventative detention. However, Article 22 maintains the concepts of Article 21, hence there is no conflict between these two provisions.

(iii) Per B.K. Mukherjea, J., even if we assume that Article 22 is not a self-contained code relating to preventive detention and that Article 21 would apply, it is not permissible to supplement Article 22 by the application of rules of natural justice.

'Law' in Article 21 of Constitution is not equivalent of 'law' in the abstract or general sense embodying the principles of natural justice.

(i) In Article 21 of the Constitution, the word 'law' has been used in the sense of State-made law. It has not been used as an equivalent of 'law' in the abstract or general sense embodying the principles of natural justice. The phrase 'procedure established by law' means procedure established by law made by the State. That is to say, law made by the Union Parliament or the Legislatures of the States.

(ii) It is not proper to construe this expression in the light of the meaning given to the phrase 'due process of law' in the American jurisprudence by the Supreme Court of America.

(iii) Per M. Patanjali Sastri, J. the term 'law' in Article 21 refers to positive or State- made law rather than the jus naturale of civil law. However, 'procedure established by law' does not refer to any procedure that may be prescribed by a competent legislature. It refers to the standard, well-established criminal procedure. That is the customs and practises that are approved by the Criminal Procedure Code, which is the country's primary criminal procedure statute.

If a constitutional violation is to be avoided, the only alternative to this interpretation is to interpret the word 'law' as implying a constitutional 'amendment pro tanto'. This is because only a law passed through the process established for such an amendment could modify or supersede a fundamental right without violating Article 13(2) of the Constitution.

(iii) 'Procedure established by law' and 'due process of law' are two different concept. The only right flowing from Article 21 of Constitution is that, 'no person shall be deprived of his life or liberty except according to procedure established by law'.

To read the word 'law' as meaning 'rules of natural justice' will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined. The Constitution cannot be read as laying down a vague standard.

This is particularly so when in omitting to adopt 'due process of law' it was considered that the expression 'procedure established by law' made the standard specific. It cannot be specific, except, by reading the expression as meaning procedure prescribed by the legislature.

The word, 'law' as used in this Part has different shades of meaning but in no other Article it appears to bear the indefinite meaning of natural justice. If so, there appears no reason why in Article 21 of the Constitution, it should receive this peculiar meaning.

(iv) The word 'due' in the expression 'due process of law' in the American Constitution is interpreted to mean 'just'. That word imparts jurisdiction to the Courts to pronounce what is 'due' from otherwise, according to law. The deliberate omission of the word 'due' from Article 21 of Indian Constitution lends strength to the contention that the justifiable aspect of 'law', i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution.

The omission of the word 'due', the limitation imposed by the word 'procedure' and the insertion of the word 'established' thus brings out more clearly the idea of legislative prescription in the expression used in Article 21. By, adopting the phrase 'procedure established by law' the Constitution gave the legislature the final word to determine the law.

Reference to Constituent Assembly Debates and Report of Drafting Committee while constructing provisions of Constitution

(i) Per H.J. Kania, CJ., it is improper to examine the individual viewpoints of members of Parliament or the Convention when interpreting a specific provision. However, a reference to the discussions may be acceptable for determining whether a certain word or expression was ever available for consideration.

(ii) Per M. Patanjali Sastri, J., speeches made during the course of the debates on bill should not be taken into account for interpreting and constructing the provision of the Act.

(iii) Per B.K. Mukherjea, J., in construing the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee.

Dissenting opinion by Justice Fazl Ali

(i) It cannot be said that Articles 19, 20, 21 and 22 of Constitution do not to some extent overlap each other.

(ii) The case of a person who is convicted of an offence will come under Articles 20 and 21 and also under Article 22 of Constitution so far as his arrest and detention in custody before trial are concerned.

(iii) Preventive detention, which is dealt with in Article 22 of Constitution, also amounts to deprivation of personal liberty which is referred to in Article 21.

(iv) Article 19(1)(d) of Constitution guarantees the right of freedom of movement in its widest sense. Freedom of movement is the essence of personal liberty. The right guaranteed under this Article is really a right to personal liberty and preventive detention is a deprivation of that right.

(v) The juristic conception that personal liberty and freedom of movement connote the same thing is the correct and true conception. The words used in Article 19(1)(d) of Constitution must be construed according to this universally accepted legal conception.

(vi) The law of preventive detention is subject to such limited judicial review as is permitted under Article 19(5) of Constitution. The scope of the review is simply to see whether any particular law imposes any unreasonable restrictions. Considering that the restrictions are imposed on a most valuable right, there is nothing revolutionary in the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason.

(vii) The phrase 'procedure established by law' as in under Article 21 of Constitution should be interpreted liberally.

(viii) Per Sir Saiyid Fazl Ali, J., the correct position is that Article 22 of Constitution must prevail in so far as there are specific provisions therein regarding preventive detention. But, where there are no such provisions in that article, the operation of Articles 19 and 21 of Constitution cannot be excluded. The mere fact that different aspects of the same right have been dealt with in three different articles will not make them mutually exclusive.

Conclusion:

(i) Preventive Detention Act, 1950, with the exception of Section 14 thereof did not contravene any of the Articles of the Constitution.

(ii) Section 14 of the Preventive Detention Act, 1950 was ultra rites inasmuch as it contravened the provisions of Article 19(5) of the Constitution.

(iii) Personal liberty would primarily mean liberty of the physical body.

(iv) Section 14 of the Preventive Detention Act, 1950 was severable from the remaining provisions of the Act. The invalidity of Section 14 of the impugned Act did not affect the validity of the Act as a whole, and the detention of the petitioner was not illegal.

(v) Articles 19 and 21 of the Constitution have no connection to one another because Article 21 protects against the loss of personal freedom.

Important Precedents:

(i) Machindar Shivaji Mahar v. The King (ii) Rex v. Halliday

(iii) Westervelt v. Gregg (iv) Bardwell v. Collins

(v) Sambhu Nath Sarkar v. The State Of West Bengal And Others, MANU/SC/0163/1973

(vi) Bachan Singh v. State of Punjab MANU/SC/0055/1982

(vii) Ashok Kumar Gupta and Anr. v. State of U.P. and Ors., MANU/SC/1176/1997

(viii) M Nagaraj v. Union of India, MANU/SC/4560/2006

(ix) Attorney General for India and Ors. v. Amratlal Prajivandas and Ors., MANU/SC/0774/1994