Kshitindra Narayan Roy Choudhury vs The Chief Secretary to the Government of West Bengal

Das, J.—The Petitioners in these cases were originally detained under the Bengal Criminal Law Amendment Act, 1930 (as amended by the Criminal Law Amendment Ordinance, 1950). On petitions filed u/s 491, Code Criminal Procedure, this Court issued rules, giving rise to Miscellaneous Case No. 51, etc., of 1950. These were heard by a Special Bench consisting of Sen, Chunder and Lahiri JJ. The judgment of the Special Bench, hereinafter called the 1st Special Bench, was delivered on February 27, 1950. The 1st Special Bench held that the Bengal Criminal Law Amendment Act, 1930, was void and that the detention of the Petitioners was illegal.

Meanwhile, the Parliament had passed the Preventive Detention Act (Act IV of 1950). The Act received the assent of the President on February 25, 1950. Thereafter, the orders of detention passed under the Bengal Criminal Law Amendment Act, 1930, were cancelled and fresh orders of detention under the Preventive Detention Act (Act IV of 1950) were served on each of the Petitioners in the present case.

The Petitioners then moved the 1st Special Bench and obtained the present rules on February 28, 1950. The rules were made returnable on March 7, 1950. These were heard in part by a Special Bench consisting of the learned Chief Justice, Sen and Banerji JJ. This Special Bench will be spoken of, hereinafter, as the 2nd Special Bench.

In the course of the hearing before the 2nd Special Bench, the learned Chief Justice and Banerji J. differed from the view of the 1st Special Bench on a fundamental question. viz., whether the validity of a legislation dealing with preventive detention, otherwise lawfully enacted, could be debated in Court on the ground of the reasonableness of its provisions.

The learned Chief Justice and Banerji J. were of opinion that the matter was not open to question before a court, and that the decision of the 1st Special Bench on this point was erroneous. Sen J. took a contrary view and adhered to the view expressed by the 1st Special Bench.

Under the rules of the Court, the whole case was referred to a Full Bench for decision; in particular the following points were referred for decision:

(1) Whether a court has jurisdiction to hold that an enactment of the Central Parliament or a State legislature providing for deprivation of personal liberty is invalid if the enactment does, in the opinion of the Court, impose restrictions which are unreasonable in the interests of the general public or for the protection of the interests of a scheduled tribe ?

(2) Is the case of Sunil Kumar Basu v. The Chif Secretary to the Government of West Bengal (1950) 54 C.W.N. 394 correctly decided in so far as it held that in such circumstances the Court could declare an enactment invalid ?

Before us, the learned advocates appearing for the detenus, and one of the detenus who argued his own case, raised some other points which I shall discuss after I have recorded my opinion on the two points referred to the Full Bench.

I shall first deal with the questions referred to the Full Bench.

The Preventive Detention Act (Act IV of 1950), hereinafter called the Act, was passed by the Parliament, as defined by Articles 79 and 379 of the Constitution of India, hereinafter called the Constitution.

The legislative competence of Parliament to pass the present legislation was not disputed before us. The power is expressly conferred by Articles 245, 246 read with List I, item (9), List III, item (3) of the Seventh Schedule to the Constitution.

The contention is that the Act is void under Article 13(2) of the Constitution; because it takes away or, at any rate, abridges, the fundamental right to "move freely throughout the territory of "India" conferred on all citizens by Article 19(1)(d) of the Constitution, and that the saving clause in Article 19(5) which enables the State (which, by force of Article 12, includes the Parliament of India) to make any law imposing reasonable restrictions on the exercise of any of the rights conferred by Article 19(1)(d) in the interests of the general public or for the protection of the interests of the Scheduled Tribes, is not attracted in the present case, because the restrictions on freedom of movement laid clown in the Act are unreasonable.

The basis of the argument rests upon the supposition that the law of preventive detention is within Article 19(5).

The referring Judges were of opinion that the law of preventive detention is specifically dealt with in Articles 21 and 22, Clauses (4) to (7) and does not come within Article 19(5).

Sen J. took the view that it does.

In deciding this question, we must bear in mind the following rules of construction:

(1) In interpreting the constitution of a completely self- governing Constitution, founded upon a written organic instrument, as the Constitution of India is, the text, if it is explicit, is conclusive; if the text is ambiguous, recourse must be had to the context or scheme of the Act.

(2) The framers of a modern Constitution may be presumed to have known that there have been in the world many forms of government and that the various incidents and attributes of the several forms had been the subject of intelligent discussion. Part III of the Constitution is headed as Fundamental Rights, Articles 14 to 18 deal with right to equality, Articles 19 to 22 deal with right to freedom, Articles 23-24 deal with the right against exploitation, Articles 25-28 deal with right to freedom of religion, Articles 29-30 deal with cultural and educational rights, Article 31 deals with right to property, Articles 32-35 deal with right to constitutional remedies. These Fundamental Rights are safeguarded by the incorporation of Article 13, which, by Clause (1) declares all existing laws inconsistent with such rights to be void and by Clause (2) places a ban on the legislative power of the State by declaring that any future law, which lakes away or abridges those rights, shall be void.

Obviously the duty to decide the validity of laws in the light of Article 13, is laid on the Courts.

As already stated, the right to freedom is dealt with in Articles 19 to 22.

Article 19 protects certain rights of citizens. Clause (1) provides:

All citizens shall have the right-

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms ;

(c) to form associations or unions ;

(d) to move freely throughout the territory of India ;

(e) to reside and settle in any part of the territory of India ;

(f) to acquire, hold and dispose of property ; and

(g) to practise any profession, or to carry on any occupation, trade or business.

These rights are available against the State and, also, against other citizens, vide Article 19(2).

A right to personal liberty means a personal right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. (Dicey Law of the Constitution, 9th Ed., p. 207.)

An order for preventive detention directs a person to be detained. The detention may be of various lands. It may be limited to a certain place and for a certain period. "Whatever may be the form of the order, the order primarily deprives the detenu of his personal liberty.

In the above view, Article 21 will apply to a law of preventive detention.

The legislative competence of the Parliament to enact a law of preventive detention, in normal times, i.e., when no declaration of emergency has been made, is recognised by the Constitution. The field of legislation has been limited by List I, item (9) and List III, item (3) to six subjects, viz., defence, foreign affairs, security of India, security of a State, maintenance of public order, maintenance of supplies and services essential to the community. Within the field so demarcated, safeguards have been provided for in Articles 21, 22, Clauses (4) to (7). The contention of the State is that these are the only safeguards, whereas the contention on behalf of the detenus is that these are absolute safeguards but in addition to these safeguards, a further safeguard is incorporated in Article 19(5).

Article 19(5) is a saving clause. It saves the law-making power of the State to enact laws which interfere with right to freedom of movement, right to reside in any part of India, right to acquire, hold and dispose of property. Such laws can impose only reasonable restrictions on the exercise of the said rights, in the interest of the general public or for the protection of the interests of the Scheduled Tribes. The reasonableness of the restrictions or the question whether the restrictions are necessary in the interest of the general public or for the protection of the interest of the Scheduled Tribes, it is contended, are justifiable in a court.

In my opinion, such an interpretation should not be made for the following reasons:

(1) An order for preventive detention affects more or less all the rights set forth in Article 19(7). Freedom of speech is one of such rights. Preventive detention interferes with such right. But, under Article 19(5), a restriction on such right is not permissible on many of the grounds on which the Constitution empowers the legislature to enact a law of preventive detention. This comment also applies in regard to the other rights mentioned in Article 19(1).

(2) The interpretation, if pushed to its logical consequence, would make a legislation infringing any of the rights conferred by Article 19(1), justifiable in a court of law.

At the dates of the framing and the passing of the Constitution, the courts had no right to sit in judgment over the policy or the reasonableness of the provisions of a statute. I find it hard to believe that the makers of the Constitution intended to make such a wide departure and to leave to the courts the power of a veto by pronouncing upon the necessity or reasonableness of a statute.

(3) The view contended for would also introduce an element of uncertainty in administration of law. The validity of law would then depend on the length of the proverbial Chancellor''s foot. In many cases, a citizen would find it difficult to regulate his conduct, until the reasonableness of a statute was finally decided by the highest court of the land. The view would be opposed to fundamental principles of codification.

(4) If the test of reasonableness were to be applied to a law of preventive detention, the incorporation of further safeguards in Article 22, Clauses. (4) to (7) was unnecessary. Article 31, which deals with right to property, would also be justifiable on the ground of reasonableness and the insertion of Clause (7) would be redundant.

(5) A law of preventive detention deprives the person detained of his freedom of movement. It does not merely restrict his freedom of movement. The law which is saved by Article 19(5) can only impose restrictions on the exercise of the right of free movement. A law depriving a person of the right of free movement, e.g., preventive detention, imprisonment, deportation, etc., cannot be covered by Article 19(5). Necessarily, such a law depriving a person of his personal liberty, would be void if Article 19(1)(d) was applicable to preventive detention. Legislative competence to pass such a law would, on such a view, be unmeaning and the provisions contained in Article 22(3)(b), (4) to (7) would be unnecessary.

Life, personal liberty, and right to property are the most cherished rights of a person. Special provisions were, therefore, made in Articles 21, 22 and 31.

In my opinion, Article 19(1)(d) does not apply to a law of preventive detention.

This view is further supported by the following considerations:

(1) In the American Constitution, Amendment V, which was adopted by the several States, from November 3, 1791, inter alia provided.

*** "nor shall any person be subject for the same offence to be twice put up in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment XIV, which was promulgated on July 28, 1868, provided inter alia

* * * nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The substance of the above amendments is incorporated in Articles 14, 20, 21, 22 and 31.

In the original draft Constitution, Article 15 ran as follows:

No person shall be deprived of his life or liberty without due process of law.

The draft was obviously taken from the American Constitution. Amendments v. and XIV.

The Drafting Committee suggested the insertion of the word personal" before the word "liberty". The note by the Drafting Committee states that the insertion was made to take out of the Article the freedoms dealt with in Article 13 of the draft which corresponds to Article 19 of the Constitution.

The Committee also suggested the substitution of the expression "according to the procedure established by law" for the expression "due process of law" on the ground that the former is more specific. It may be noted that the due process clause has given rise to great divergence of judicial opinion in America. The Committee also referred to the Irish Constitution. Article 4 of the Irish Constitution reads

The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. The intention was to depart from the American Constitution. A new criterion was set up. The protection was made more definite.

I do not agree with Mr. Gupta''s contention that Article 21, being an appendage to Article 20, deals merely with procedure. The expression "procedure established by law" in Article 21 has to be read with Article 31 where the expression "authority of law" has been used in the case of deprivation of property. The words "procedure established by law" mean and include both the substantive and adjective law.

In both the Articles, the word "law", in my opinion, does not mean and include anything which may pass under the form of an enactment but has been used in the sense of valid law, i.e., law in accordance with the Constitution.

The above discussion leads me to hold that-

(1) the Court has no jurisdiction to hold that an enactment of the Central Parliament or a State legislature providing for deprivation of personal liberty is invalid if the enactment does, in the opinion of the Court, impose restrictions which are unreasonable in the interests of the general public or for the protection of the interest of a Scheduled Tribe.

(2) The case of Sunil Kumar Basu v. The Chief Secretary to the Government of West Bengal (1950) 54 C.W.N. 394 was not correctly decided in so far as it held that in such circumstances the Court could declare the enactment invalid.

My answer to the 1st question referred to the Full Bench is in the negative and that to the 2nd question is also in the negative.

In the above view, I have not discussed the question whether the Preventive Detention Act (IV of 1950) is reasonable or not.

Mr. Gupta further contended that the Parliament had no power to delegate its legislative function and that the impugned Act was an instance of such delegation of legislative power to the executive.

I have not recorded my opinion on the first branch of the contention, because even assuming that the Parliament had no such power, in the present case, I am clearly of opinion that the Act is not an instance of such delegation. The Act has merely conferred on the district magistrate, or subdivisional magistrate or the commissioner of police, if satisfied with respect to any person that with a view to prevent him from acting in a manner prejudicial to the security of the State or the maintenance of public order or the maintenance of services and supplies essential to the community, the power to make an order of detention.

It is urged that the subjects have not been particularised. But there is no vagueness, as the field within which the said persons will act, is clearly defined. No power has been conferred on the executive to make regulations. The officers named are the heads of the executive machinery within their respective jurisdictions and are required to submit a report to the State Government as regards their acts. They are familiar with the connotation of the subjects mentioned. They have merely been entrusted with the task of determining some facts or states of things upon which the law makes or intends to make its own acts to depend. If this duty is denied to the said officers, the wheels of Government would be clogged. Amidst the complex and ever-expanding problems which crop up in modern times, it would be difficult to further particularise the minutest details. Such a particularisation may confuse, rather than assist, the persons entrusted with the task. In my opinion, the impugned Act cannot be regarded as an instance of delegation of the legislative power to the executive. The contention is, therefore, overruled.

It was also contended that Section 3 of the Act was unmeaning, because after the passing of the Constitution, the expression Central Government is a misnomer.

The "Adaptation of Laws Order", 1950, was made by the President by virtue of the power conferred on him by Article 372(2) of the Constitution. The order came into force on January 26, 1950. The order substituted the following for Section 3 of the General Clauses Act, 1897 (X of 1897):

In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or the context-

(a) Central Government shall

(b) in relation to anything done or to be done after the commencement of the Constitution, mean the President, Article 367(1) also makes the General Clauses Act, 1897, subject to any adaptation which may be made therein under Article 372, applicable for the interpretation of the Constitution as it applies for the interpretation of an Act of the legislature of the Dominion of India.

The contention has, therefore, no substance. The further argument that the security of the State in Section 5(a)(ii) of the Act is unmeaning is also of no substance. The word "the State" is used distributively and refers to the appropriate State. It is well known that the singular always includes the plural.

Neither Article 245 nor item (9), List II, nor item (3), List III, presents any difficulty.

Mr. Gupta next contended that some of the provisions of the Act are ultra vires. It was suggested that-

(1) Sections 10 to 11 contradict Article 22(4) of the Constitution; that....

(2) Section 12 is opposed to Article (7); and that....

(3) Section 14 abridges the fundamental right conferred by Article 32.

As regards (1), it was pointed out that in Article 22(4), the words "such detention" mean detention beyond 3 months, while Sections 10(2) and 11 of the Act require the Advisory Board to pronounce upon the validity of the initial detention. In my opinion, this is not what is meant. It is plain that the opinion of the Board is made necessary solely for continuing the detention for such period as the Board thinks fit (vide the last sentence of Section 11). There is no contradiction between Article 22(4) and Sections 10 and 11 of the Act.

As regards (2), Section 12 of the Act entitles the Central Government or the State Government to detain, for one year, without obtaining the opinion of the Board, in five out of the six subjects mentioned in List I, item (9) and List III, item (3), the only subject excluded being maintenance of supplies, etc.

Article 22(7)(a), however, requires that a law for preventive detention beyond 3 months without obtaining the opinion of the Advisory Board, though passed by Parliament, may prescribe both the circumstances and the classes of cases. Article 22(7) is an empowering provision and confers the power under either contingency. Article 22(7)(6) authorises the Parliament to fix the maximum period of detention in any class or classes of cases.

In my opinion, there is no inconsistency between Article 22(7) and Section 12 of the Act.

The further contention of Mr. Gupta that Section 14 takes away or abridges the right conferred by Article 32 has substance.

Section 14 imposes a ban on the court and prevents the disclosure before it, by the detenu or a public officer, of the substance of the communication of grounds of detention made u/s 7 to the detenu and of the representation made by him. Article 32 guarantees to the detenu the right to move the Supreme Court in appropriate proceedings. The learned Advocate-General contended that the right to move the Supreme Court is not abridged by Section 14, only certain evidence is rendered inadmissible. In my opinion, an appropriate proceeding to move the Supreme Court necessarily implies that the detenu will be entitled to state the grounds of detention and to show how far the grounds are valid. Article 21 also requires that deprivation of personal liberty can be made according to the procedure established by law, i.e., after a fair trial. If Section 14 is an effective law, the right of the detenu to move the Supreme Court would be rendered illusory.

The effect of Section 14 is also to abridge the right of the detenu to move the High Court under Article 226. Moreover, the object of Article 22(5) is whittled down, to a large extent, if Section 14 is good law.

Injury opinion, Section 14 of the Act is void under the Constitution. But as Section 14 of the Act is severable, the Act, as a whole, is not rendered void, on this ground.

Mr. Gupta also contended that the satisfaction of the detaining authority was simulate. It was pointed out that the Act received the assent of the President on February 25, 1950, and was published in the Gazette on February 26, 1950. The orders of detention were made on February 27, 1950, and served on February 28, 1950, and, as such, it was not possible for the authority concerned to apply their mind so as to be satisfied about the grounds of detention.

The argument overlooks the fact that the Petitioners had been under previous orders of detention on similar grounds. The material facts bearing on the question of satisfaction and the grounds of detention were known to the proper authority. Moreover, the burden undoubtedly lies on the Petitioners to prove facts which will show that the satisfaction was not real.

It will not suffice merely to raise a suspicion in the mind of the Court. In my opinion, the materials which are properly before the Court, are not sufficient to support the contention. The contention must, accordingly, be overruled.

In the result, these applications, in my opinion, fail and are dismissed. The Rules are discharged.

Sinha J. The facts of the case are stated in the referring judgment and I need only state them very shortly.

In the case of Sunil Kumar Basu v. The Chief Secretary to the Government of West Bengal (supra), a Special Bench of this Court, consisting of Sen, Chunder and Lahiri JJ. (hereinafter referred to as the First Special Bench) held, on February 28, 1950, that the Bengal Criminal Law Amendment Act, 1930, was invalid and that the Orders made thereunder afforded no justification for the detention of the Petitioners in that case. On February 25, 1950, Parliament passed the Preventive Detention Act, 1950 (hereinafter referred to as the Act). As soon as the Act became law, the Government of the State of West Bengal cancelled orders of detention which had been made against the present Petitioners under the Bengal Criminal Law Amendment Act and served each and every one of them with an order of detention made under the Act. Thereupon, these applications were made and they were heard by a Special Bench consisting of the learned Chief Justice, Banerjee J. and Sen J. (hereinafter referred to as the Second Special Bench).

In the case of Sunil Kumar Bam (supra) the First Special Bench held that the Bengal Criminal Law Amendment Act was invalid and ultra vires because it was in conflict with Article 19(1)(d) of the Constitution. It was held that the Act imposed unreasonable restrictions on the free movement of citizens and, therefore, exceeded legislative limits prescribed by Article 19(5) of the Constitution.

When these applications came before the Second Special Bench, the same contention was advanced, namely, that the Act imposed unreasonable restrictions on the right of citizens to move freely throughout the territory of India which was guaranteed to them under Article 19(1)(d) of the Constitution, and was not within the protection afforded by Article 19(5) of the Constitution.

The learned Chief Justice and Banerjee J. did not agree with the decision of the First Special Bench above referred to and held that it was not open to a court to question the validity of such an Act on the ground of unreasonableness of the provisions therein contained. Sen J. took the contrary view and adhered to the judgment of the First Special Bench.

Difference having arisen, the following questions have been referred to the Full Bench for decision:

(1) Whether a court has jurisdiction to hold that an enactment of the Central Parliament or a State Legislature providing for deprivation of personal liberty is invalid, if the enactment does, in the opinion of the court, impose restrictions which are unreasonable in the interests of the general public or for the protection of the interests of the Scheduled Tribe ?

(2) Is the case of Sunil Kumar Basu v. The Chief Secretary to the Government of West Bengal (supra) correctly decided in so far as it held that in such circumstances the Court could declare an enactment invalid ?

Under Chapter VII, Rule 5 of the Rules of the Appellate Side of the Court, the whole case has been referred to the Full Bench.

Before us, the validity of the orders for detention was challenged on the following grounds:

(A) The Act under which the orders of detention were made is void, because it abridges rights conferred by Article 19(1)(d) of Part III of the Constitution, and is not within the protection given by Article 19(5), the restrictions imposed on the exercise of the right being unreasonable.

(B) It is legislation not by Parliament to which power to legislate on this topic was given, but, by the executive in exercise of power delegated by Parliament.

(C) Section 14 of the Act is ultra virus because it conflicts with Article 32 of the Constitution. Sections 8, 9, 10 and 11 of the Act are ultra virus because they are inconsistent with Article 22(4)(a).

If these sections are invalid, the whole Act is void because they are not severable from the rest of the Act.

(D) Even if the Act is valid, the orders of detention are bad because the "satisfaction" recited in the order is, on the facts and circumstances of the case, pretended or simulated and not real; in other words, the order is mala fide.

I will now deal with the points in the order in which they have been set out:

(A) Article 13(2) of the Constitution provides, inter alia, that Parliament shall not make any law which takes away or abridges the rights conferred by Part in of the Constitution and any law made in contravention of this clause shall, to the extent of the contravention, be void.

The Act, it is submitted, is one which abridges the rights conferred by Article 19(1)(d) in that it imposes unreasonable restrictions on the exercise of the right conferred thereby. It is also submitted that it is for the Court to decide whether the restrictions imposed by the Act are reasonable or not, and if it comes to the conclusion that they are unreasonable, it must declare the Act to be void. The detention orders, having been made under an Act which is void, are challenged as illegal.

In Part III of the Constitution, there is a catena of Articles beginning with Article 19 and ending with Article 22 under the heading "Eight to Freedom". Article 19 provides that all citizens shall have the rights mentioned therein, including the right to "move freely throughout the territory of India". Article 19, Clause (2) to (6) lay down the limits of permissible legislation affecting those rights. Articles 20 to 22 provide for limitations on legislative power to deprive persons of life or personal liberty. They contemplate deprivation of "personal liberty" in three ways, viz.,-

(a) conviction for violation of law,

(b) detention with a view to investigation and trial for an offence suspected to have been committed, and

(c) preventive detention without any intention to bring the detenu to trial.

Article 20 deals with limitations on legislation in respect of conviction for offences. Article 21 lays down that no person shall be deprived of life or personal liberty except according to procedure established by law. Article 22(1) and (2) deals with the right of a person arrested, other than an enemy, alien or one detained under any law providing for preventive detention-

(i) to be informed of the grounds for such arrest,

(ii) to consult with and be defended by a legal practitioner of his choice,

(iii) to be produced before a magistrate within 24 hours of such arrest,

(iv) not to be detained beyond such period without the authority of a magistrate.

Article 22(4) to (7) deals with certain limitations on legislative power to provide for preventive detention.

It is not disputed that the relevant limitations provided for in Articles 20 to 22 must be complied with if a person is to be deprived of "personal liberty" by a law enacted by the appropriate legislature.

The question is whether the restrictions on legislative authority laid down in Articles 20, 21 and 22 are the only restrictions or whether Article 19 was intended to impose a further restriction on legislative authority in case of a statute depriving a citizen of "personal liberty" where the statute also affects rights guaranteed under Article 19.

Sen J. took the view that Article 19(5) of the Constitution gave power to the Court to examine any law depriving a citizen of rights protected under Article 19(1)(d), whether it be contained in the Penal Code or in any other Act, and to decide that that law was in contravention of the Constitution if it took away or abridged the liberty of free movement.

Mr. Gupta, appearing for some of the detenus, conceded that if the right of free movement was affected by reason of a citizen being convicted of an offence or by reason of his detention for preliminary investigation with a view to trial (the offence being created and the detention being authorised by law, otherwise unexceptionable), such law would not be open to challenge before a court on the ground that it imposed unreasonable restrictions on the right of free movement. In other words, the legislature may enact a penal law and thereby create offences and provide punishment therefor and authorise detention with a view to trial, and even though the law imposed unreasonable restrictions, it will not be open to challenge on the ground that rights guaranteed under Article 19(1)(d) have been taken away Or affected by such law.

He, however, maintains that the position is different with regard to preventive detention. Any law of preventive detention, he argues, is substantially different from a law creating offences and providing punishment therefor, or a law authorising detention with a view to bring him to trial, and will come within the mischief of Article 19(1)(d), unless it could be justified in a Court of Law under Article 19(5). He distinguishes between punitive law and preventive law and argues that preventive detention is restriction on liberty of movement only. He referred to the speeches of the Law Lords in Liversidge v. Anderson (1942) A.C. 306 and in Rex v. Halliday (1917) A.C. 260, and pointed out that the words "preventive "detention" are not defined in the Act and that they have been taken from judgments of English Judges in cases to which reference was made. He argued that preventive detention being restriction on liberty of movement and nothing else, is fundamentally different from punitive detention or imprisonment. In the case of preventive detention, the person is detained on suspicion or on anticipation that he may do some prejudicial act. There is no trial and the person detained has no opportunity of proving his innocence.

I may mention here that the concession made by Mr. Gupta in regard to penal enactments was not made by all learned Counsel appearing for the detained persons. Some of them maintained that even penal enactments were open to challenge in a Court of Law, if they imposed unreasonable restrictions on the liberty of free movement.

Learned Advocate-General''s contentions are as follows: when there is deprivation of personal liberty, there can be no question of exercise of rights under Article 19. "Deprivation of personal "liberty" and "restriction on the right of free movement" are two different legal concepts. When a citizen is deprived of "personal liberty" under a law enacted by the appropriate legislature acting within its legislative competence, and according to procedure established by law, there can be no question of the exercise of his rights under Article 19. In other words, Article 19 only applies when a citizen has not been so deprived of his "personal liberty". "Restriction of freedom of movement" referred to in Article 19(5) means partial restriction. "Deprivation "of personal liberty" can in no case be "restriction of free "movement." A penal enactment or a statute of preventive detention deprives a person of his "personal liberty" and does not restrict his movement. Article 19(5), therefore, cannot apply to a law depriving a citizen of "personal liberty." It is true that a citizen who is imprisoned or detained cannot move freely, but that is because he has been deprived of his personal liberty. The statute does not take away or abridge the citizen''s right of free movement. It takes away "personal liberty" by reason whereof the citizen cannot move as he likes. The restriction on the exercise of free movement follows incidentally from the deprivation of personal liberty and is not the direct result thereof.

It is not open to Court, therefore, to examine a statute depriving a person of personal liberty for considering whether its provisions impose reasonable restrictions on the right of free movement. The validity of such a statute is established if it is proved that the legislature acted within its legislative competence and conformed to the relevant restrictions in Articles 20 to 22 of the Constitution.

Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The Article guarantees, in my view, that legal procedure must be followed before a man can be deprived of life or personal liberty. Whatever the word "law" in Article 21 might mean, such law prescribing the procedure must conform to the Constitution. But mere following the legal procedure will not do. There must be a valid substantive law to justify the deprivation of "personal liberty" which must have been passed by a competent legislature and which must conform to the legislative restrictions in the Constitution.

The question is: What are these restrictions?

In my view, if the law affects Fundamental Rights conferred by Article 19, it must conform to and not exceed the relevant restrictions set by Clause (2) to (6) of Article 19. Can a statute depriving a citizen of "personal liberty" never affect or encroach upon Fundamental Rights under Article 19? Does not a statute depriving a citizen of "personal liberty" restrict his right of free movement? Cannot restriction of free movement be partial or total?

It seems to me that a statute depriving a citizen of "personal "liberty" is one controlling and restricting his right of free movement. The word "deprivation" includes within its scope "restrictions". Whenever there is restriction on free movement, there is a limited "deprivation" of the right. When the restriction is total, there is total deprivation of that right. Deprivation and restriction are not two entirely different legal concepts. "Restriction" at a certain stage reaches the point of "deprivation".

The words "personal liberty" used in Article 21 were not intended to include the Fundamental Rights in Article 19. The word used is not "liberty" but "personal liberty". Those words are used in order to exclude from their ambit the Fundamental Rights in Article 19. "Personal liberty" can be taken away only by a substantive law. How "personal liberty" can be taken away is not provided in any of the Articles. Article 21 is only a safeguard as to the following of the legal procedure. The law which takes away "personal liberty" must conform to the legislative restrictions in the Constitution. If the law which takes away "personel liberty" affects Fundamental Rights under Article 19, that law must conform to the relevant restrictions in Clause (2) to (6) of Article 19. Unless it can be said that a law-taking away "personal liberty" can never affect or invade Fundamental Rights conferred by Article 19, it cannot be said roundly that the Court can never look into a law depriving a person of personal liberty for examining the reasonableness of its provisions.

"Liberty" or "freedom" is a wide expression containing within its scope (a) "Personal Liberty", (6) Fundamental Rights under Article 19. If the law takes away "personal liberty" it has to conform to the relevant legislative restrictions. If it takes away, or abridges, any of the fundamental rights of citizens conferred by Article 19, it must conform to the limits set by the relevant clauses of that Article. The words in Article 19(5) are perfectly general and limit legislative authority to enact law affecting the rights conferred by Article 19(1)(d), (e) and (f) except to the extent provided for therein. I do not think I am justified in engrafting exceptions on the provisions in Article 19(5) which is not warranted by the language used.

It is conceivable that the legislature may, under the guise of taking away "personal liberty", restrict the exercise of the Fundamental Rights guaranteed by Article 19. Whether it has done so or not is to be ascertained on an examination of the provisions of the particular statute. Why should it matter whether the Fundamental Rights are taken away directly or indirectly? The law cannot do indirectly what it cannot do directly. But I agree that if the provisions of the statute have been enacted for a particular purpose, which is for the good of the society or the State, the fact that they incidentally trench upon Fundamental Rights does not matter, because the invasion of Fundamental Rights would then be considered to be reasonable. Indirect or incidental encroachment of Fundamental Rights has a bearing only on the question of reasonableness of the restrictions.

In my opinion, whether the relevant law is a penal enactment or a preventive statute does not matter. Both kinds of law may affect rights under Article 19. There is, of course, clear difference between punitive and preventive detention. In one case, there is imprisonment after trial while in the other case, there is detention on suspicion or anticipation without the safeguard of a judicial trial. But in both cases, there is loss of "personal liberty" under an Act passed by the legislature.

I, however, agree with Mr. Gupta that a statute of preventive detention is primarily one for control and restriction of liberty of movement. It may be complete control of such liberty or may be limited control such as internment or experiment.

If a statute of preventive detention does encroach on Fundamental Rights guaranteed by Article 19(1)(d), the question is whether the encroachment is such and for such purpose that it should be considered by the Court to be reasonable.

I do not find anything in Articles 20, 21 and 22 from which I can say that a statute depriving a citizen of "personal liberty" cannot be challenged and must be considered to be good if it has been passed by a competent legislature and has not transgressed the legislative restrictions in Articles 20, 21 and 22.

I need only add that even if the words "personal liberty" include within their scope Fundamental Rights under Article 19, Article 21 should, in my opinion, be construed as imposing an additional safeguard and not in derogation of the rights guaranteed under Article 19.

I am afraid we would be cutting down the safeguards provided in the Constitution if we were to hold, notwithstanding the plain and unambiguous language used in Article 19(5), that it does not apply to a penal enactment or a statute of preventive detention. The Constitution has provided safeguards against interference by legislation with certain Fundamental Rights, by giving power to the courts to scrutinize such legislation and decide upon the reasonableness of the encroachment, if any. These safeguards should, in my opinion, be protected and not destroyed.

I recall the observations of Marshall C.J. in McCullock v. Maryland (1819) 17 U.S. 314:

We must never forget that it is a Constitution we are expounding a Constitution, intended for ages to come, and consequently to be adapted to the various crises in human affairs.

I am, therefore, of opinion that it is obligatory on the Court when the validity of a law is attacked on the ground that it imposes restrictions on certain Fundamental Rights guaranteed by Article 19, to examine the provisions of such law and to decide whether or not they encroach upon Or affect the rights and, if they do, whether such encroachment is within the permissible bounds prescribed by the relevant clauses in Article 19. No class of legislation can claim to be free from examination and scrutiny by the Court. The standard of reasonableness which the Court will set to itself in determining the validity, or otherwise, of such a statute is, however, a different question.

It is urged that if this construction were adopted extraordinary results will follow. Every penal or preventive statute, if challenged, will have to be justified in a Court of Law. This consideration is, however, not enough to cut down the plain meaning of the general words used in Article 19(5) of the Constitution. It is true that if there is a conflict between Article 19 and Article 21, or any other Article, the Court should attempt to resolve it by a process of construction and to effect a fair reconciliation of the apparently conflicting provisions. I do not see, however, any conflict. A Constitution Act is to be construed, as any other statute, and the ordinary principles of construction will apply. The principle was thus stated in King-Emperor v. Benoarilal (1944) L.R. 72.1. A. 57:

In construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used.

I do not, however, see that extraordinary or injurious results will follow if the Courts have the power of pronouncing upon statutes affecting Fundamental Rights. There is no reason to think that Courts will exercise the power unreasonably or extravagantly. In a written constitution, where the powers of the legislature are limited by the Constitution, which is the superior paramount law, it is the duty of the Courts to say what the law is. For protection against unreasonable invasion of Fundamental Rights by the legislature, power has been given to the Judiciary to examine and interpret a law affecting or interfering with Fundamental Rights and pronounce upon its reasonableness. The area over which the legislature can exercise its unrestricted powers of legislation is thus narrowed down and in the area, so restricted, the judiciary is given the power to scrutinize every piece of legislation and determine whether it interfered with guaranteed Fundamental Rights. This power has been exercised by the courts in America and the result has, on the whole, been beneficial.

There is one other matter which must be considered. It cannot be denied that a detained person during the period of his detention may suffer from restrictions in the exercise of his right of freedom of speech and expression conferred on him by Article 19(1)(a). A statute authorising such detention must, on the construction contended for, be void unless it comes within the protection afforded by Article 19(2). Article 19(2) only gives protection to any law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security for tends to overthrow the State.

Any law providing for preventive detention which does not satisfy Article 19(2) must, therefore, be void.

If the legislature enacts a law which really and substantially affects the Fundamental Eight of freedom of speech and expression, it must be held to be bad unless it is saved by the provisions of Article 19(2). Only penal enactments or statutes of preventive detention which relate to a matter which offends against morality or which undermines the security of the State, or to other matters mentioned in Article 19(2), would be saved. There is no reason to apprehend that all penal enactments or statutes of preventive detention would be void.

The argument that this construction will place non-citizens in a worse position does not seem to me to be of much substance. Son-citizens are given the protection of law, which must conform to the limitations laid down, in Articles 20, 21 and 22. Citizens are guaranteed certain additional rights which are fundamental and which cannot be taken away except by legislation within the limits allowed by Clauses. (2) to (6) of Article 19. This is by no means surprising. It is quite clear that the Constitution has given larger rights to citizens than to non-citizens who have not admittedly been given rights under Article 19.

It is by no means unusual to give powers to the Court to examine the reasonableness of a statute in a Constitution, such as has been given to us. The Supreme Court of the United States of America examines, under the due process clause, legislation affecting Fundamental Rights protected by the Constitution. Every legislation affecting rights guaranteed by the Constitution can be pronounced upon by the Supreme Court. It is true that the due process clause has been omitted from our Constitution. This was done, it seems to me, to avoid the uncertainty which had arisen in America by reason of the Supreme Court claiming to have the right, under the due process clause, to examine and pronounce upon every legislation, passed by the Congress, affecting constitutional rights. It was not intended to give to the Courts here those large and undefined powers. But in respect of Fundamental Rights and to safeguard them, specific provisions were made in different clauses of Article 19 giving power to the Court to examine legislation affecting such rights. The large power which the Supreme Court exercised to examine and scrutinize and pronounce upon legislation duly passed by the Congress was thereby avoided and a restricted power was given to Courts to act as guardians of certain guaranteed rights.

This power must, however, be exercised by the Court reasonably. The Court must look at the substance of the impugned Act and see whether it really and substantially aims at Fundamental Rights or whether it seeks to provide for something which is in the interest of the society and the State and in trying to achieve that object incidentally imposes restrictions on the exercise of the Fundamental Rights of citizens. If it is the latter, and not the former, the interference may be reasonable within the meaning of Article 19(5). If a legislature acts within the sphere of its legislative competence and enacts a law imposing restrictions on freedom of movement of a citizen, on the ground that he has committed an offence or is likely to do a prejudicial Act, the restriction may be considered to be a reasonable thing in the interest of society. But whether the Court will consider the restrictions to be reasonable or not will depend on the terms of the particular statute. It has to be remembered that it is for the legislature to enact penal law or preventive enactment. The Constitution has given it the power. The Court cannot usurp the position of the legislature. The Court is only to watch that the legislature conforms to the legislative restrictions imposed by the Constitution and in the guise of making a law does not unduly or unreasonably encroach upon Fundamental Rights of citizens guaranteed to them.

Having regard to what I have already said, it is necessary to consider whether the restrictions imposed on the right of free movement by the impugned Act are reasonable?

Mr. Gupta challenged the reasonableness of the Act on the following grounds. He referred to Section 3 of the Act which gave power to any district magistrate or subdivisional magistrate or a commissioner of Police in a presidency town to make an order directing that a person be detained, if he was satisfied that it was necessary so to do, with a view to prevent him from acting in a manner prejudicial to the defence of India, the security of the State and the maintenance of public order, etc. He also referred to Section 4 which gives power to the Central Government or the State Government to remove a person, on whom a detention order has been made, to any place and detain him there under such conditions as may be specified in any general or special order as the Central Government or the State Government, as the case may be, may specify. Section 14 of the Act was also referred to and it was contended that by reason of the terms of the section it would be impossible for any detained person to prove to the satisfaction of the Court that the order of detention on him had been made for indirect purposes or mala fide. That section prohibits the Court from allowing any statement to be made or any evidence to be given before, it of the substance of any communications made to the detained person of the grounds on which a detention order has been made, or of any representation made by him against such order. The Court is also not entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation. The section also makes the disclosure of the contents of any communication of the grounds of detention and of the representation made by the detained person, without the previous authorisation of the Central Government or the State Government, as the case may be, an offence.

It was contended that very large powers had been given to subordinate officers and liberty of persons depended on the opinion which such officers entertained as to a particular person. It was complained that the provisions gave wide and unlimited powers to subordinate officers of Government to deprive a person of his liberty. Further, the Act unreasonably interfered with the power of the Court to enquire into the facts of each case or to determine whether an order of detention had been made bona fide.

There can be no doubt that the provisions of the impugned Act are very wide and personal liberty is made to depend on suspicion or opinion of the Central or of the State Government or of a subordinate officer of the State Government. There are, of course, provisions for reporting the matter by the officer, acting u/s 3(2) of the Act immediately to the State Government to which he is subordinate. Some time, however, must lapse between the arrest and the report, and during that period a man is deprived of his liberty on the personal opinion of a subordinate officer of the State. It was pointed out that in Liversidge v. Anderson (1942) A.C. 306, the Law Lords strongly relied on the fact that in Regulation 18B of the Defence Regulations, the opinion on which the liberty of the subject depended was one of the Home Secretary who was a responsible Minister of State and who was himself responsible to Parliament.

I am not of the opinion that the fact that the order of detention could be made by the officers mentioned in Section 3(2) of the Act or that the detained person could be removed to and detained in any place made the Act unreasonable, if it was otherwise reasonable. The officers mentioned in Section 3(2) are responsible officers of the Government and are likely to be conversant with matters which have to be considered in connection with an order of detention. It should not be forgotten that India is a country of vast distances and it may not be possible here to entrust the duty of making orders of detention to any officer of the position of Home Secretary or an officer of a similar position.

I will deal with Section 14 of the Act later.

I will now consider whether the Act transgresses the permissible limits prescribed by Article 19(5) for any other reason.

The Act provides in Section 3, as I have already said, that the Central Government, or the State Government, may, if satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to the defence of India, etc., make an order directing that such person be detained. All that is necessary for the detention is the "satisfaction" of the Central Government or of the State Government. Section 3(2) provides that this power can be exercised by any district magistrate, or any subdivisional magistrate or in a presidency town, a commissioner of police. In those cases where the power is exercised by those officers their "satisfaction" is enough to make the order of detention. The "satisfaction" may be reasonable or unreasonable. The Court cannot go behind such "satisfaction". Such "satisfaction" is proved by the production of an order properly drawn up and signed. The Court cannot inquire and decide whether there are reasonable grounds for such satisfaction. In case an order is signed on behalf of the Central Government or of the State Government by an officer under the rules of business, it is not permissible to enquire who the person was who was satisfied and on what materials. The reasonableness of the suspicion on which the order of detention was made can never be enquired into by the Court. It is true that the detenu may prove that there was no real satisfaction or that it was a routine order which was made. But, if the order is properly drawn up and signed, it is ordinarily impossible for any detenu to prove that the person making the order of detention was not really satisfied. The Act, therefore, authorises detention on the personal opinion of a particular officer and there is no means of finding out who the officer was, what the materials were and whether any reasonable man could possibly be satisfied on such materials. If the question of the legality of the detention is raised before the Court, it is precluded from going into the facts of the case and determine the reasonableness or otherwise of the suspicion leading to the order of detention. The Court can only enquire into the validity of the Act under which the order of detention was made.

It is true that the order of detention can be challenged on the ground of mala fides. But it is practically impossible for any detenu to prove that the order was made mala fide if the Court is not allowed to go into the facts. To make things worse, Section 14 of the Act prohibits a court from allowing any statement to be made or any evidence to be given before it of the substance of any communication made to the detenu of the grounds on which a detention order has been made or of any representation made by him against such order. The Court is further prohibited by that section from requiring any public officer to produce before it or to disclose the substance of any such communication or representation, or the proceedings of an Advisory Board which is confidential. Section 10(3) provides that the proceedings of the Advisory Board and its report (excepting that part of the report in which the opinion of the Advisory Board is specified) shall be confidential. If the detenu cannot disclose to the Court the grounds of detention and his answer to the charge made against him, the Court cannot possibly hold that the order is mala fide.

The result of the different provisions of the Act, to which I have made reference, is-

to vest a plenary description in the executive, affecting the liberty of the subject and pro tanto to substitute for the judgment of the Court, based on ordinary principles of common law right, the discretion of the executive acting arbitrarily in the sense that it cannot in substance be inquired into by the Court. This is a serious interference with the liberty of the subject. Elieyer Zabrovsky v. G.O.C. Palestine (1947) A.C. 246, 256.

It is true that there is provision in the Act for Advisory Boards who may look into the grounds on which an order has been made and the representation, if any, made by a person affected by the order, and in case an order has been made by an officer u/s 3(2), the report of such officer. The detenu is not entitled to appear before the Board either in person or by a legal representative. The advice of the Advisory Board is not binding on the Government. Even if the report is in favour of the detenue, there is no provision that the Government must act upon it. There is no provision for an Advisory Board where a man is detained in order to prevent him from acting in a manner prejudicial to the defence of India, the relations of India with foreign powers, the security of India or the security of the State, or the maintenance of public order. If the detention does not exceed a period of 3 months, the report of the Advisory Board is not necessary.

The substance of the matter is, therefore, that if the Act is valid, a person may be detained on the personal opinion of an officer entertained about him and the detenu is practically without any safeguard if the executive is minded to detain him.

It must, however, be remembered that the Constitution itself provides for preventive detention and in Articles 22(4), (5), (6) and (7) lays down certain restrictions on legislative powers to enact a statute of preventive detention which must be complied with. The question is, is it a valid statute of preventive detention if it complies with these legislative restrictions only and if it is passed by a competent legislature?

The Constitution, in Article 32, confers upon every person the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, and the Supreme Court is given the power to issue a writ in the nature of Habeas Corpus for enforcement of any of the rights conferred, by Part III. This is a right to constitutional remedies, a Fundamental Right. Further, by Article 220, power is given to the High Courts, throughout the territories, in relation to which they exercise jurisdiction, to issue certain; writs, including writs in the nature of Habeas Corpus, for enforcement of the rights conferred by Part III of the Constitution. The Constitution, therefore, clearly gives power to the Supreme Court and to the High Courts to examine the legality and propriety of a detention order which affects Fundamental Rights conferred by Part III. Any statute which substantially affects the right of the Supreme Court or of the High Courts to issue such a writ for the enforcement of the rights in Part III abridges, in my opinion, the constitutional rights given to a person and, to that extent, is void or ultra virus.

It is true that the Act does not expressly affect the right of the detenu to move the Supreme Court or to apply to the High Courts for a writ in the nature of Habeas Corpus. But its provisions, in effect, make it impossible either for the Supreme Court or for the High Court to give him any relief on an application for the writ. The right to move the Supreme Court or the High Court includes, in my opinion, the right of a person detained to produce before the Court materials which may help the Court in coming to a conclusion as to whether the detention is justified or not. It is useless to say that the Supreme Court or the High Courts can be moved, if the proceedings are made ineffective by the Act itself. The proceedings are made ineffective because the "satisfaction" of the executive is made final and is substituted for the "judgment of the Court based "on ordinary principles of common law right". The Court is prohibited to allow evidence to be given of the grounds of detention and of the representation made by the detenu and cannot inquire into the facts and the reasonableness of the "satisfaction "of the executive."

When a writ of Habeas Corpus is issued by a Court, the return must show that the detention is legal. In England, the Courts cannot examine the validity of an Act made by Parliament, which is the paramount law. The only question which arises in England is the question of construction of the provisions of the Act to ascertain the intention of Parliament. If the Act of Parliament provides for detention in the discretion of the executive, the exercise of such discretion, if proved, is final and binding on the Courts. In other words, in England Parliament may provide that what is necessary to make a detention valid is the subjective satisfaction of the officer concerned and not objective satisfaction. If a law enacted in England by Parliament makes an order of detention legal On the objective satisfaction of a particular individual, the Court is helpless and must hold the detention to be valid if the subjective satisfaction is proved. As the validity of the law cannot be challenged the production of the order of detention made under a valid law is sufficient to prove the legality of the detention. This is what happened in the case of Liversidge v. Anderson (supra). There, the defence regulations made under the Emergency Powers (Defence) Act, 1939, could not be challenged as invalid because they had been made under an Act enacted by Parliament and were otherwise validly made. The only question which arose and had to be considered was whether, on a proper construction of the Act and of the regulations, subjective satisfaction or objective satisfaction was intended.

Tinder our Constitution, however, it is permissible to attack the validity of any law, made by a competent legislature, which affects Fundamental Rights conferred by the Constitution. If the law made by the legislature affects the rights under Article 19(1)(d), the Court, as I have already said, must examine the law and satisfy itself about the reasonableness of the restrictions imposed on the exercise of the right. In considering the question of reasonableness, the Court must also take into account the other provisions of the Constitution. Inasmuch as the Constitution in Part III provides for preventive detention, the Court cannot consider preventive detention, by itself, to be unreasonable. But still, the particular Act providing for preventive detention will be open to scrutiny by the Court in order to pee whether it affects other constitutional rights or not.

Preventive detention does not necessarily mean that the detention should be according to the. subjective satisfaction of the executive. Preventive detention does not necessarily bar the power of the Courts to review the order of detention made against a detenu. There is, therefore, nothing in the Constitution itself which bars the power of the Supreme Court or of the High Courts to examine the facts of each particular case on a Habeas Corpus application and to decide the reasonableness of the suspicion entertained about a person. It is true that Advisory Boards have been provided for, but the report of the Board is intended for the guidance of the executive and is confidential. Further, the executive is not bound to act according to the report.

The power of making a law for preventive detention is, in my opinion, subject to the right of the person detained to ask the Court to examine the propriety of the detention on facts, on an application for a writ in the nature of Habeas Corpus. There is nothing in the Constitution which expressly or impliedly takes away this right. From the fact that the Constitution authorises preventive detention, we should not readily infer that the Constitution, by implication, has taken away the right of the person detained to invoke the powers of the Court to inquire into the facts of each case, in order to satisfy itself whether the detention order has been properly made or not. There are, in my opinion, no provisions in Article 22(4), (5), (6) and (7) from which it can be inferred that the power of the Supreme Court or of the High Courts to examine the propriety of a detention order on the facts of each case is intended to be taken away.

It cannot be doubted that a provision whereby a Court is order is made, it is impossible to disclose the materials on which the satisfaction of the executive is based. There may, of course, be cases where it is against public interest to disclose the sources of information and belief, which may be confidential. The Government may, in those cases, rely on the provisions of Sections 123 and 124 of the Indian Evidence Act. It does not, therefore, appear that there is any imperative reason of state to preclude disclosure of materials on which satisfaction of the executive is based or to prevent enquiry by the Courts into the reasonableness of the satisfaction.

It cannot be doubted that a provision whereby a Court is prevented from examining into the validity or propriety of a detention order, by reason of the subjective satisfaction of the executive, amounts, in effect, to a suspension of the power of the Court to issue a writ of "Habeas Corpus. As Lord Wrenbury observed in Rex v. Halliday (1917) A.C. 260, 308.

The Appellant is interned under an order made under that regulation. He says the result is that the Habeas Corpus Act is in substance suspended when it has not been suspended in fact. If his case were that he had neither hostile origin nor associations he could have his writ of Habeas Corpus on the ground that that was so, and if he established the fact he would be discharged. The application before your Lordships is for a writ of Habeas Corpus, and the ground advanced is that regulation 14 (B) is ultra vires. If that were established he would be discharged. The Habeas Corpus Act is in full force; but this statute and the regulations made under it have provided machinery for achieving in a way other than that of suspending the Habeas Corpus Act the preventive detention of persons who are not alleged to have committed any offence, but whom it is desired to prevent from committing one. The regulation is, in my judgment, one within the authority given by the Act.

It is true, as Lord "Wright has pointed out, that by vesting a "plenary discretion" in the Executive, the Habeas Corpus Act is not really suspended but that as the Act of Parliament makes the detention by the Executive legal, there is no illegal detention. Elieyer''s case (1947) A.C. 246, 256. That may be so in England where an Act of Parliament is paramount and cannot be challenged.

The substance of the matter, however, is that by making such a law barring the power of the Court to examine and review the order of detention by inquiring into reasons for the "satisfaction" the remedy by a writ of Habeas Corpus, conferred by the Constitution, is taken away or abridged. It survives only in name; the substance of it disappears if such an Act is valid.

The Constitution has made provisions for suspension of Fundamental Rights protected by Article 19 and of the right to move any court for enforcement of the rights conferred by Part III. There is, therefore, ample power to encroach on the right to freedom conferred by the Constitution, if it becomes necessary for the safety of the country and for peace and good Government. We must, however, proceed on the basis that there is, at present, no emergency which justifies the "enlargement of "the scope of legal and permissive interference with the right to "freedom". It is true, as I have already said, that the Constitution authorises preventive detention and that there is nothing to show that the power to enact a law of preventive detention should only be exercised in times of emergency. But when there is no emergency, any law providing for preventive detention cannot transgress the limits to legislative power prescribed by the Constitution. The only question is what are the limits?

In my opinion, therefore, the Act is ultra virus and void because,

(1) it substantially affects the right of a person to move the Supreme Court and the High Courts for issue of a writ in the nature of Habeas Corpus and deprives him of remedies conferred by the Constitution;

(2) it imposes restrictions on the right of free movement without any proper opportunity on the part of the person detained to prove that the order is improper on facts. In other words, it imposes restrictions in the plenary discretion of the executive, and substantially deprives the Court of the power to review the order of detention which it would otherwise have. The restrictions imposed on the exercise of the right of free move-ment by the Act are, therefore, unreasonable.

I am also of opinion that Section 14 of the Act is, in any event, ultra virus to the extent it contravenes Article 32 and Article 226 of the Constitution.

(B) The next point which was urged is that the Act is void because the Legislature has not exercised the legislative authority itself, but has delegated it to the executive who have been given, in effect, the power to legislate. It will be remembered that in List I, item (9) and List III, item (3), Parliament is authorised to enact a law of preventive detention for reasons connected with the security of the State, etc. It is contended that it is obligatory on Parliament to delimit or specify the reasons in the Act itself. The Legislature, it is said, has merely repeated the words of the relevant items in List I and List III and has not by the Act given any guidance or set any standard to the officers to whom power is given to make orders of detention. Here, the Legislature has not legislated,-it merely says that the officers mentioned in the section can detain a person if, in their opinion, any person was acting in a prejudicial way as laid down in Section 3 of the Act. It was pointed out that the words "security of the "State" and "the maintenance of public older" were extremely wide and general into which almost any content might be fitted. Any civil law or any Penal enactment may be said to be for the security of the State and the maintenance of public order. The omission of reasons in the Act itself makes the legislation a contravention of the Constitution. It is urged that here there has been delegation of essential legislative functions which must be exercised by the Legislature and by nobody else. Parliament has overstepped its limitations, which are inherent in every Constitution, and has practically left it to the executive to discharge obligations which the Constitution intended that Parliament should discharge.

Reference was made to the case of Panama Refining Company v. Ryan (1934) 293 U.S. 388. In that case, powers were given by the Congress to the President to prohibit transportation of petroleum or petroleum products produced in excess of the States permission. Hughes C.J. held that the legislation was defective and observed:

It establishes no criterion to govern the President''s course. The Congress declares no policy as to the transportation of excess production. It gives to the President an unlimited authority to determine the policy and to lay down the prohibition or not to lay it down as he might see fit...congress left the matter to the President without standard or rule to be dealt with as he pleased.

Cardozo J. who delivered a dissenting judgment also upheld the principle in these words:

I concede that to uphold the delegation there is need to discover in the terms the Act a standard reasonably clear whereby discretion must be governed.

The principle enunciated in that case, as was pointed out by the Federal Court in Benoarilal''s case (1939) F.C.R. 96, has nothing to do with the maxim "Delegatus Non Potest Delegare" but, is only an amplification of what was referred to by the Judicial Committee in Burah''s case (1877) 3. A.C. 889 as the "nature and principles of "legislation". In fact, there can be no question of the application of the maxim because the Indian Parliament is not an agent or delegate of any other superior Legislature. It is subject only to the limits prescribed in the Constitution which created it.

The only question is whether the Legislature discharged the function of legislation entrusted to it by the Constitution or left it to be discharged by others. In other words, were the functions, left to be discharged by the Central Government or by the State Government u/s 3 of the impugned Act, legislative or executive? It is not disputed that the Legislature can lay down policies and establish standards and leave it to the executive to determine the facts to which the policy would apply and to make subordinate rules within prescribed limits. As was stated in an American case (1943) F. C. R. 96, the proposition is as follows:

The true distinction is between the delegation of power to make the law which necessarily involves the discretion as to what it shall be and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law (Benoarilal''s case (supra) at P. 126.)

In the case of King-Emperor v. Benoarilal Sharma (supra), the question of the validity of the Ordinance No, 2 of 1942, came before the Courts and the question arose for consideration as to whether the provisions made by the Ordinance were valid. Sections 5, 10, 14 and 16 left it to the local Government or to some officer of the local Government, empowered by it in that behalf, to direct what offences or classes of offences should be dealt with or what cases or classes of cases should be tried by the special Courts created by the Ordinance. Section 26 of the Ordinance was framed to exclude the revisiona and appellate powers of the High Court, in cases dealt with by the special courts. The Federal Court held that the Ordinance gave authority to the executive by order passed under Sections 5, 10 and 16 of the Ordinance to repeal the relevant sections of the Code of Criminal Procedure and to divest the regular courts of their jurisdiction. They held that Sections 5, 10 and 16 of the Ordinance were open to objection as "having left the exercise of powers thereby "conferred, on executive officers to their absolute and unrestricted "discretion without any legislative provision or direction laying "down the policy or the conditions with reference to which that "power was to be exercised." It was also held that the Ordinance making authority had wholly evaded the responsibility of laying down any rules or conditions or even enunciating a policy with reference to which cases were to be assigned to the ordinary criminal courts and to the special courts and left the whole matter to the unguided and uncontrolled action of the executive authority.

There was an appeal (1), to the Privy Council. The judgment of the Judicial Committee was delivered by Viscount Simon L.C. The Privy Council upheld the validity of the Ordinance. It was not doubted that the Governor-General could not transfer the duty of legislation cast on him to other authorities. But it was held that the legislative powers had not been delegated at all. Viscount Simon observed as follows:

It has not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provisions of a statute is determined by the judgment of a local administrative body as to its necessity.

Viscount Simon also observed as follows:

Their Lordships feel bound to point out that the question whether the Ordinance is ultra vires or intra vires does not depend upon considerations of Jurisprudence or of policy. It depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the Ordinance by which he is purporting to exercise that authority. It may be that as a matter of wise and well-framed legislation it is better, if circumstances permit, to frame the Statute in such a way that the offender may know in advance before what courts he will be brought if he is charged with a given crime, but that question is of policy and not of law... Again and again this Board has insisted that in construing enacted words, we are not concerned with the policy involved or with the result injurious or otherwise which may follow from giving effect to the language used. The learned Judges who were in the majority in the Federal Court would presumably not contest this proposition and their Lordships rather understand their view to be based on the conception that there is something underlying the written Constitution of India which debars the Executive Authority, though specially authorised by the Statute or Ordinance to do so, from giving directions after the accused has been arrested and charged with crime as to the choice of the Court which is to try him. Their Lordships are unable to find that any such constitutional limitation is imposed.

Adopting the language of the Privy Council, it may be said in this case that, as a matter of wise and well-framed legislation, it might have been better, if circumstances permitted, to frame the statute in such a way that the detenus might know, in advance, the nature of the acts which were included within and which defined the prejudicial acts mentioned in Section 3 of the Act. The words used in Section 3 are undoubtedly wide and a detenu may be in difficulty in knowing their content. It would have been better, if circumstances permitted, to particularise the nature of the acts against which the section was aimed, specially, having regard to the fact that the satisfaction of the officer concerned was made final. But can it be said that they are so undefined that it is impossible to find out their content? The Legislature in general words, indicated what would be considered as prejudicial acts within the meaning of the section and has left it to the subordinate officers to find out the facts and to satisfy themselves as to whether in a given case any man was acting in a prejudicial manner as defined in the section. This is not strictly a delegation of power to make the law. The nature of the acts has been defined, though in geteral words, and authority has been given to subordinate officers to be exercised in pursuance of the law. In the words of the American case, to which reference has been made, the policy and the standard have been set by the section. Having regard to the nature of the case, the Legislature had possibly to use words which were wide and general. An attempt to define the prejudicial acts might have defeated the object of the statute, having regard to the complexity of the situation which had to be dealt with. There is nothing, in my opinion, in Section 3 which violates the "nature and principles of "legislation." In my opinion, it was not necessary to specify, in the Act itself, with particularity, the reasons mentioned in List I, item (9) and List III, item (3). I do not think Parliament has exceeded the limits of legislative power or has failed to legislate in matters entrusted to it for legislation, or has surrendered its essential legislative functions.

The learned Advocate-General submitted that it is constitutional for Parliament to delegate its legislative powers to the executive. He referred to Article 248 and item (97), List I of the Seventh Schedule and contended that it was possible for Parliament, if it so liked, to delegate away the power of legislation, given to it by the Constitution. He referred to certain Australian cases where it has been held that the Dominion Parliament in Australia could delegate its legislative functions. It was, however, stated by Mr. Gupta that the Privy Council has held that the view taken in the Australian cases is not right. Be that as it may, it is unconstitutional, in my opinion, for Parliament to surrender its power of legislation to any other agency. The residuary power given to Parliament by Article 248 does not, in my view, include the power to part with its lawmaking authority by enacted legislation.

(C) The next point which was argued is that some of the sections of the impugned Act are ultra vires and they are so inter-woven into the texture of the Act that the whole Act is void. In the first place, it is pointed out that in Section 3 the words "Central Government" have no meaning after the Constitution came into force. But, the word "Central Government" is defined in the General Clauses Act, and by the Adaptation of Laws Order, 1950, means in relation to anything done or to be done after the commencement of the Constitution, the President. It also pointed out that in List III, item (3), the only legislative power which Parliament had was, for reasons connected with the security of a State, the maintenance of supplies and services essential to the community and maintenance of public order within a State. A reference was made to List II, item (1) of the Government of India Act, 1935. But Section 3 does not say that order can be made under that section for prejudicial acts against the maintenance of public order or against the maintenance of essential supplies outside the State. Parliament had legislative power in respect of each State.

It is also pointed out that Sections. 8 to 11 of the Act provide for appointment of Advisory Boards and for a report by the Board as to whether or not there is sufficient cause for the detention of the person concerned. It is pointed out that in Article 22(4)(a), it is provided that the Advisory Board shall report as to whether the detention should be continued beyond 3 months. It is urged that the report provided for in Section 10(2) by the Advisory Board is not the same report which is provided for by the Constitution in Article 22(4)(a). In my opinion, Section 10(2) provides for the same report as contemplated in Article 22(4)(a). It contemplates a report as to whether or not there is sufficient cause, not for initial detention, but for the continued detention of the person concerned, beyond the period of 3 months. The validity of Section 14 was also challenged. I have already dealt with the point and it is not necessary to deal with it again.

(D) The next point which was argued is that the satisfaction recited in the orders of detention is not a real satisfaction but is simulated or pretended. It is urged that a mere recital of satisfaction does not satisfy the terms of the Act. It is open to the detained person to show that the recital is wrong and that in fact the recital does not truly express the mental state of the officer making the order of detention. It is pointed out that these detenus were detained under orders made under the Bengal Criminal Law Amendment Act. An application was made in this Court in December, 1949, u/s 491 of the Code of Criminal Procedure that the detention was illegal or improper. It was held by a Division Bench of this Court that the orders of detention were illegal inasmuch as they did not conform to the requirements of the statute. As soon as that judgment was passed, the Bengal Criminal Law Amendment Act was amended by an Ordinance. The previous orders of detention were cancelled and new detention orders were made under the said Act, as amended.

After the Constitution came into force on January 26, 1950, applications were again made u/s 491 of the Code of Criminal Procedure and under Article 226 of the Constitution for an order for release of the detained persons on the ground that the detention was illegal and improper. The First Special Bench heard a batch of applications on different dates in February and the arguments were concluded on February 24, and judgment was to be delivered on February 28, 1950. On February 25, 1950, the impugned Act was passed by Parliament and on February 26, 1950, the previous orders of detention were cancelled and new detention orders were made under the Act. The previous detention orders had been made by a Deputy Secretary of the Government of West Bengal. The orders of detention under the impugned Act were made by the Joint Secretary of that Government. It is said that in the course of one day, the officer concerned satisfied himself about the facts relating to about 500 detenus and made new orders of detention which are now challenged. In those circumstances, it is submitted that there could have been no real satisfaction of the officer concerned and his satisfaction has been recorded in the order as a mere matter of form and does not express the real state of his mind at the time the order was made. In other words, it was a routine order and there was no satisfaction, reasonable or otherwise.

The hurry and expedition with which the orders were made are certainly open to comment. The question, however, is whether there is evidence on which I can hold that the officer was not, in fact, satisfied or that the satisfaction recited in the order did not express the state of his mind.

It is true that the orders were made overnight, so to say. But in the absence of definite evidence, it is difficult to hold that the officer made orders of detention without complying with the preliminary conditions which were requisite for the making of the order, or, in other words, that he made the orders without satisfying himself that the persons against whom they were made were likely to do the prejudicial acts contemplated by the statute. After all, these detained persons had been in custody for some time and their history sheets may have been available to the officer concerned. The time which would ordinarily be required for satisfaction of an officer to make an order of detention, would not be necessary in a case where orders of detention had been made against these persons under other statutes and those orders were cancelled and fresh orders were made for the purpose of the new statute which had been passed by Parliament.

The learned Advocate-General relied on Article 166 of the Constitution which corresponds to Section 59 of the Government of India Act, 1935. He said that the orders were made by the State Government in dealing with its executive business. The fact that the Joint Secretary signed the orders of detention did not mean that he was the person who was satisfied within the meaning of Section 3 of the Act. He has signed the order under the rules of business. He said that the orders were ex facie regular and proper and there was no evidence to show that the officer who considered the cases was not in fact satisfied.

I do not think, on the evidence before us, it is possible to hold that the satisfaction of the officer was not a genuine satisfaction, though there may be ground for suspicion and uneasiness.

I should notice one point which was argued by Mr. M.M. Sen and which was later taken up by Mr. Gupta. He points out that Article 22(7)(a) provides that Parliament may prescribe by law the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than 3 months under any law providing for preventive detention without obtaining the opinion of an Advisory Board. He urges that if Parliament makes any law under Article 22(7)(a), it must prescribe both the circumstances under which and class or classes of cases in which a person may be detained for a period longer than 3 months. He then referred to Section 12(7) of the Act which provides as follows:

Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than 3 months but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to:

(a) the defence of India, relations of India with foreign powers or the security of India ; or

(6) the security of the State or the maintenance of public order.

Mr. Sen admits that the circumstances under which a person may be detained, without obtaining the opinion of the Advisory Board, for a period longer than 3 months, have been set out in the section, but, he submits that the section does not make any provision for the class or classes of cases in which any person may be so detained. His argument is that it was obligatory on Parliament to set out both the classes and the circumstances and that the legislature has failed to provide for the class or classes of cases in which a person may be detained as mentioned in the section. Parliament has, therefore, not complied with the provisions of the Constitution in making a law providing for preventive detention, and the Act should, therefore, be held to be void.

It does not appear to me that under Article 22(7)(a) it is obligatory on Parliament to prescribe both the circumstances and the class or classes of cases. It may do either. If, in a given case, Parliament considers that the setting out of the circumstances under which a person may be detained is enough, it may do so. There is nothing in the section to show that Parliament must do both. In any event, I think that Parliament has prescribed both the class or classes of cases and the circumstances under which a person may be detained as contemplated by Article 22(7)(a). The class or classes of cases are composed of persons who have been detained with a view to preventing them from doing the prejudicial acts mentioned in Section 12. The circumstances under which such persons may be detained are the likelihood of their acting in a manner prejudicial to the defence of India, etc. The circumstances mentioned in Section 12 determine the class or classes of cases. In other words, the class or classes of cases are composed of the same persons to whom the circumstances mentioned in the section apply. I do not think Section 12 is in conflict with Article 22(7)(a).

For the foregoing reasons, I answer the questions referred to the Full Bench in the affirmative. In my opinion, the Act is void and ultra vires and the orders of detention are illegal. The Rules should, in my opinion, be made absolute and the Petitioners should be set at liberty forthwith.

Das Gupta J. Four principal questions concerning the validity of the Preventive Detention Act (hereinafter referred to as the Act) under which these applicants have been detained, arise for consideration in the case. Of these, the first is whether this Act is void, by reason of Its infringement of the right to move throughout the territory of India, that has been conferred on all citizens by Sub-clause (d) of Clause (J) of Article 19 of the Constitution. This question was responsible for the reference of the case to this Full Bench. The second question is whether the Act involves such delegation by the Parliament of its legislative function, as to make the Act invalid in law. The third question is whether the law of preventive detention by this Act is in accordance with Article 22 of the Constitution. The fourth question is whether Section 14 of the Act is invalid, because it contravenes provisions of the Constitution, and whether, because of such invalidity, the entire Act is invalid in law.

Apart from these questions regarding the validity of the Act, two questions have been raised challenging the validity of the orders of detention, even if the Act is valid. One is that there was, in fact, no satisfaction of the Government of West Bengal, within the meaning of Section 3(a) of the Act. The other is that the orders of detention were mala fide.

On the question whether the Act is void, because of infringement of the right under Article 19(1)(d) of the Constitution, the majority of the Bench, before whom this case came up first, were of opinion that the Act, being a statute depriving persons of liberty, was in no way affected by the provisions of Article 19 of the Constitution that it must be held to be a valid law, if it satisfied Articles 21 and 22 of the Constitution, and was within the competence of the legislature which passed it, and conse- quently, it was not open to the Court to go into the question of reasonableness of the restrictions imposed by the Act.

This view of the majority is in conflict with the view of another Bench of this Court in another case, where the learned Judges held that the Criminal Law Amendment Act, which gave the Provincial Government the right to commit a citizen to custody in jail, took away his right to move freely throughout the territory of India, and so the Court had to see-

whether the law giving such a right is one which imposes a restriction which in reasonable, and which is in the interest of the general public, and if it was not, the Act must be held to be invalid. It was because of this conflict that the case has been referred to this Bench.

Mr. Atul Chandra Gupta argued that Article 21 of the Constitution had nothing to do with preventive detention and so, the argument which found favour with the majority of the Judges of the referring Bench, that because preventive detention is dealt with in the Constitution by Article 21, Article 19 can have no application must fail. Mr. Gupta had pointed out that. Article 20 which precedes Article 21, deals with the rights of persons who are brought to trial and not with persons under preventive detention, and that Articles 22(1) and (2), which succeeds Article 22, also deals, not with persons under preventive detention, but with persons who are detained pending trial or pending investigation, which may or may not lead to a trial but which is undertaken with a view to bringing persons to trial, Mr. Gupta argues that Article 21 cannot reasonably be held to deal with any matter not dealt with either by the preceding or the succeeding provisions of the Constitution, and so, it should be held that Article 21 does not deal with preventive detention.

I agree that neither the provisions of Article 20, nor the provisions of Article 22(1) and (2), have anything to do with preventive detention. I am unable to agree, however, that this justifies the conclusion that Article 21 cannot have anything to do with preventive detention. As I read the Article, its words are wide enough to include preventive detention as much as any other kind of detention, and the mere fact that preceding and succeeding provisions of the Constitution, do not deal with preventive detention, is no reason for giving these words (in Article 21) a narrower connotation. It is well to point out in this connection, that the words of Article 22(1) and (2), standing by themselves, would apply to preventive detention as well and it is only because of the further provision in Clause (3) of Article 22, that Clauses (1) and (2) cease to be applicable to preventive detention.

In my opinion, Mr. Gupta''s contention that Article 21 has nothing to do with preventive detention should not prevail.

The question next arises, whether, as Article 21 deals with preventive detention, it ceases to be justifiable under Article 19- in other words, whether the guarantee given to deprivations of personal liberty by Article 21 excludes the application of the guarantee given by Article 19. After anxio\\is consideration, I have reached the conclusion that there is no such exclusion.

The first argument in favour of the view that there is such exclusion is that the saving provisions in Clauses (3) to (6) of Article 19 save only "restrictions" on the exercise of the rights conferred by sub-Clauses. (h) to (g) of Clause (1) of the Article, shows that "deprivations" of the rights were not intended to be dealt with under Article 19. This argument proceeds on the assumption that deprivation of a right cannot be said to involve ''"restriction" of the exercise of the right, and restriction connotes that part of the right remains. A very strict interpretation of the words perhaps justifies this assumption; but on a strict interpretation, it may be equally argued that when a man is detained, he is not deprived of the right to move throughout India, but it is only restricted, inasmuch as his right to move inside his place of detention-whether it is some house, or some village, or a prison, remains. In my judgment, the word "deprivation" has not been used in Article 21 to mean total extinction of the right; and there is no antithesis between these words-"restriction" as used in the saving clauses of Article 19, and the word "deprivation" in Article 21. Interpreted in the way I have indicated, all cases of restriction will not involve deprivation, but all cases of deprivation will involve restriction. The argument that Article 19 does not deal with the deprivation of any rights cannot, therefore, be accepted.

It would have, in my opinion, been very strange that the Constitution in guaranteeing a right would provide the safeguards of justiciability on the ground of "reasonableness", against its partial destruction, but no such safeguard against its total destruction. Such a strange result should not. in my opinion, be read into the Constitution, unless the words used necessarily require it. As I have indicated above, the use of the word "restriction" in the saving clause of Article 19, as distinct from the word "prevention" in Article 21, does not justify such conclusion.

It was next argued that if statutes providing for deprivation of liberty were justifiable on the ground of reasonableness u/s 19, the strange result would follow that all the laws of the Indian Penal Code would become justifiable court of law. That, it is said, could not possibly have been contemplated by the Constitution. Whether the Constitution contemplated or did not contemplate the situation that might arise if all statutes became justifiable, I find it impossible to say.

I am of opinion, however, that no calamitous or even untoward results would follow, if the provisions of the Penal Code became justifiable. There is no reason to think that courts would act arbitrarily and it seems to me abundantly clear that if the validity of any section of the Penal Code was challenged on the ground of unreasonableness, the courts would, under the "pith and substance" doctrine, hold the section to be reasonable. For, in pith and substance, the sections of the Penal Code prevent people from doing certain acts considered to be against social interests, and it is only incidentally that some of the rights under Article 19 are infringed. There cannot, in my judgment, be any room for doubting the result that courts of law would, therefore, hold the provisions of the Penal Code to be "reasonable" for the purpose of the saving clauses of Article 19.

When the right to freedom of speech and expression that has been conferred by Sub-clause (a) of Clause (1) of Article 19 is infringed by the deprivation of liberty by any conviction under the Penal Code, the saving clause that has to be considered is Clause (2). The courts would have, in my opinion, no hesitation in holding that this will come within the saving clause-for the simple reason that crimes are matters which undermine the State.

Take, however, a law-that any person coming within the Fort area, will be sentenced to imprisonment-passed by a competent legislature. If this law is justifiable, under Article 19, courts will, I think, hold that, in pith and substance, it infringes the right to move, and will hold the law to be void, unless satisfied of its reasonableness, on consideration of the circumstances under which the law is made, and the nature of the social interest to protect which the law is made.

If the argument that as deprivation of liberty is dealt with under Article 21, statutes providing for deprivation of liberty are not justifiable under Article 19, was accepted, the law mentioned above would be valid, however unreasonable it might be. This, in my judgment, would totally defeat the intention of the Constitution in giving the guarantees under Article 19.

I have so long proceeded, on the basis, that the words "personal liberty" mentioned in Article 21 include the several rights mentioned in Article 19, the controversy being merely on the question whether Article 19 deals only with "restriction" on those rights, while Article 21 deals with "deprivation" of those rights. If, however, a view is taken that the words "personal "liberty" as used in Article 21 do not include the rights in Article 19, though these rights have in fact been considered in other countries to be some of the forms of "personal liberty" the argument that Article 19 cannot apply to matters which come under Article 21 becomes still more unacceptable. That there is scope for such a view is clear on a consideration of the reasons which induced the drafting committee to insert the word "personal" before the word "liberty", in the guarantee as it now stands embodied in Article 21. This guarantee was in Article 15 of the original draft and was in these words, "No person shall be "deprived of his life or liberty without due process of law." The committee recommended the substitution of the words "except according to procedure established by law" for the words "without due process of law", and at the same time recommended the insertion of the word "personal" before the word "liberty". As the reason for this last recommendation, the committee said-"the Committee is of opinion that the word "liberty" should be qualified by the insertion of the word " ''personal'' before it, for otherwise it might be construed very "widely so as to include even the freedoms already dealt with in "Article 13". Article 13 of the original draft, it should be mentioned, has now become Article 19. This recommendation of the committee was accepted. If it is permissible to hold from this that the reasoning put forward by the committee found favour with the framers of the Constitution, it could reasonably be said that by the present Article 21, the Constitution did not intend to guarantee the rights mentioned in Article 19, because these had already been guaranteed and did not require a fresh guarantee.

It is also worthy of note that in Part XVIII which is on "Emergency Provisions", while Article 359 provides for suspension of the enforcement of the rights conferred by Part III during emergencies, Article 358 provides for suspension of the provisions of Article 19 during emergencies, and makes no such provision for any other Article in that Part. This gives some reason for an inference that the Constitution intended the provisions of Article 19 to provide a yardstick for all legislation, except during emergencies.

I have not yet referred to a point on which much argument was addressed to us, viz., whether Article 21 of the Constitution deals only with matters of procedure or with matters of substance as well. Mr. Atul Chandra Gupta contended that this Article dealt only with matters of procedure. The learned Advocate-General appears to have contended before the referring Bench that all that the detaining authority had to show in view of the provisions of Article 21 was that the detention was in accordance with the procedure established by law, and that the law authorising the detention had not to be justified, as Article 21 dealt only with matters of procedure. He, however, altered his position before us and submitted that the correct position was set out in the judgment of my Lord the Chief Justice in his referring judgment, where he says that there is no great difference between the provision in Article 21 and the provision in the American Constitution that no person shall be deprived of life, property or liberty without due process of law, and again where he says that the detention cannot be according to procedure established by law unless there is firstly a right to detain under a valid statute followed by the correct procedure to secure such detention. In his concluding address, however, the learned Advocate-General said that while he still felt that the correct position in law was as set out by the learned Chief Justice he did not wish to give up his point as taken before the referring Bench that Article 21 dealt only with matters of procedure.

If the right view be that Article 21 deals only with matters of procedure, I do not see how the conclusion can be escaped that as Article 21 deals with matters of procedure, while Article 19 deals with matters of procedure as also of substance, justiciability under Article 21 does not exclude justiciability under Article 19.

If again the correct view be that the words "except according "to procedure established by law" mean the same thing as "without due process of law" in the fifth and fourteenth amendments of the American Constitution, I would not bother at all on the question whether Article 19 applies or not, for under the due process clause, as interpreted in America, for more than half a century now, the Court will test every piece of legislation by the yardstick of reasonableness. Writing about the due process clause as interpreted by the Supreme Court of America, Professor Willis writes thus:

The guarantee of due process of law is so all inclusive that all other constitutional guarantees could be abolished and there still would be sufficient protection of personal liberty. The due process limitation has already been extended to include many of the other constitutional guarantees and there is no rational reason against its being extended to include all of them; the tendency is in this direction. Due process of law applies to personal liberty, to social control, to procedure* to jurisdiction and to substantive law. It applies to the police power, to eminent domain and to taxation. It applies to the three great branches of Government: the legislative, the executive and the judicial. It applies to every interest which an individual may assert-whether a right, power, privilege, or immunity, whether civil or political.

Due process of law, better than any of the other constitutional guarantees, gives the Supreme Court the opportunity to draw the line which ought to be drawn between personal liberty and social control (Willis on Constitutional Law, p. 642).

Knowing how the American courts have interpreted the due process clause, I have no hesitation in thinking that if the words "according to procedure established by law" mean the same thing as the due process clause of the American Constitution, the courts in this country will also test every statute by the measure of reasonableness.

It has to be noticed, however, that the framers of the Constitution deliberately altered the original wording in the Article dealing with the matter-"without due process of law" to "except according to procedure established by law". I cannot help thinking that this was done, as they did not want to give the courts in this country the wide powers which American courts had assumed under the due process clause. I am of opinion, therefore, that we shall not be justified in reading into the words "except according to procedure "established by law" the meaning "without due process of law."

In my view, while Article 21 cannot be interpreted to bar all deprivations of life or liberty without due process of law, it will not be proper to hold that it deals only with matters of procedure.

Nothing can be said to have been done "according to "procedure established by law" merely because the procedural law has been followed. Procedure is always in relation to substantive law, and the words "according to procedure "established by law" connote, in my opinion, that the correct procedural law as applied to the correct substantive law has been followed.

I agree, therefore, with that part of the learned Advocate-General''s contention where he says that the correct position in law is, as set out in one portion of the referring judgment of Harries C.J. that the detention cannot be according to procedure established by law unless there is firstly a right to detain under a valid statute followed by the correct procedure to secure such detention.

Before, therefore, the requirement under Article 21 can be held to have been satisfied, the statute which creates the right to detain must be shown to be valid. In order to be valid, it must not be opposed to any of the Articles of the Constitution. Article 19 is one of the Articles of the Constitution. So, in order to be valid, the statute which creates the right to detain must not be opposed to Article 19.

On all these considerations, my conclusion is that the application of Article 21 to a statute does not exclude the operation of Article 19.

The next question that arises for consideration is whether the fact that the Constitution made special provisions for the law of preventive detention by Article 22 in Clauses (4) to (7), in the very chapter on Fundamental Rights, and under the very heading "Rights of freedom" under which Article 19 also appears, justifies any conclusion that Article 19 does not apply to the law of preventive detention.

It may be noticed in this connection, that the Constitution took special care, by enacting Clause (3) in this Article, to provide that nothing in Clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention. But no such express provision has been made to exclude the operation of Article 19.

I cannot discover any reason to think that this omission is accidental.

Can it be said that when the framers of the Constitution made some special provisions under the very heading "Rights to "freedom", as regards the law of detenton, they intended these provisions to be the sum total of all rights that anybody could claim, as regards preventive detention?

In my judgment, to say so would be mere surmise, and not a legal inference. It has to be borne in mind that while, in all other matters, a Constitution has to be interpreted so as to spread the cloak of validity as wide as possible, a conservative approach is necessary in the interpretation of those provisions of the Constitution which confer rights in the nature of fundamental rights. The proper approach in this matter was, in my judgment, correctly indicated by Lord Wright, in James v. The Commonwealth (1936) 55 C.L.R. 1, 43-44, in these words-

It is true that a Constitution must not be construed in any narrow and pedantic sense. The words used are necessarily general and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning. It has been said that in interpreting a constituent or organic statute such as the Act (i.e., the British North America Act), that construction most beneficial to the widest possible amplitude of its powers must be adopted (British Coal Corporation v. The King (1935) A.C. 500, 518), but that principle may not be helpful, where the section is, as Section 92 may seem to be, a constitutional guarantee of rights, analogous to the guarantee of religious freedom in Section 116, or of equal right of all residents in all States in Section 117. The true test must, as always, be the actual language used.

To make an inference that the framers of the Constitution intended the provisions as regards preventive detention that they embodied in Article 22 to be a complete code as regards the Fundamental Rights in connection with the law of preventive detention, we must have clear unambiguous indication of such intention.

If the provisions embodied in Article 22 themselves dealt with the principal questions that are likely to arise, in considering the reasonableness of the restriction imposed, it could certainly be said that the test of Article 19 was being excluded by necessary implication.

I find, however, that all such questions are not dealt with in Article 22.

A statute may be challenged as imposing unreasonable restrictions-because the period of restriction is too long, or because of the nature and extent of the restriction, or because it gives unlimited scope for arbitrariness and provides for no check against errors.

The question of the period of restriction is specifically dealt with in Clauses (4) and (7) of Article 22. The question of the nature and extent of the detention is not dealt with at all. There is some provision of a check against errors in Clause (5). There is no provision at all against the risk of arbitrary action, when the detention is for a period of three months and less. There is some provision against arbitrary action by authority, for detention for more than three months, in the requirement under Sub-clause (a) of Clause (4) of an Advisory Board; but this provision does not apply, when a law has been made under Clause (7). In the case of law of detention for more than three months under a law made in accordance with the provisions of Clause (7) of Article 22, there is no provision against arbitrary action, unless resort can be had to Article 19.

In my opinion, the provisions made in Article 22 as regards preventive detention, were not intended to be a complete code of Fundamental Rights for the particular matter, and the framers of the Constitution cannot be held to have intended that Article 19 would not apply at all to the matter of preventive detention.

It is well to remember in this connection that the framers of Constitution did not hesitate to provide for the suspension of the rights under Article 19, in an emergency. If they thought it proper that this Article should not apply to one particular matter, viz., preventive detention, even when there is no declared emergency, would they not have said so? In my judgment, they would have.

I hold, therefore, that in spite of the fact that some special provisions as regards preventive detention were made in Article 22, the provisions of Article 19 continue to be applicable to preventive detention, except on the question of the period of detention, which is specifically dealt with in Article 22.

My conclusion is that the law of preventive detention is justifiable under Article 19, except as regards the period of detention.

It is necessary, therefore, to examine the provisions of the Preventive Detention Act to see whether they satisfy the test of reasonableness as provided in Article 19. In the first place, I should state my view that the Act, in pith and substance, infringes the rights under Article 19, and not merely incidentally. The reasons for which a section of the Indian Penal Code would be held reasonable do not, therefore, apply here. Mr. Atul Chandra Gupta contended that the provision in Section 3 of the Act that the satisfaction of the Central Government, or the State Government or any district magistrate, or subdivisional government, or the commissioner of police in a presidency town, was sufficient for an order of detention, really put the citizen, at the mercy of officials, who might be holding a comparatively low position in the bureaucratic hierarchy. The learned Advocate-General contended that a district magistrate or subdivisional magistrate or the commissioner of police hold responsible positions, and are the most suitable persons among executive officers, to decide in individual cases, whether an order of detention is necessary or not. This contention, in my opinion, is correct. While it may occasionally happen that the district magistrate or the subdivisional magistrate is an inexperienced person, it cannot be overlooked that the latter officer is the head of the executive, in the subdivision, while the former is the head of the executive in the district. When preventive detention is really necessary, it will in most cases be necessary that action should be taken quickly. The provision that the district magistrate or the subdivisional magistrate may, when they are satisfied, order detention, cannot, therefore, be considered unreasonable, merely on the ground that they hold low positions in the bureaucratic hierarchy.

The commissioner of police holds, in the presidency towns, a position analogous, in certain matters, to the position of the district magistrate outside the presidency town. He is likely to be almost always an experienced officer. While it is true that, as the head of the police, he is likely to be unduly inclined to take action under this Act on the view that prevention is better than cure, it has to be remembered that he also is to report forthwith to the Government, and that as he is in the presidency town, his report will reach the government almost immediately after the order of detention is passed. The provision that the commissioner of police may, if satisfied, pass an order of detention, cannot, in these circumstances, be considered unreasonable, merely on the ground of his position in the bureaucratic hierarchy.

When the satisfaction is of the Government of India, or the Government of any State, it cannot be ascertained, which particular officer in the official hierarchy has been satisfied. It is reasonable to assume, however, that an officer holding a fairly responsible position will be entrusted with this task. I do not think, therefore, that the fact that provision is not made for the satisfaction of an officer of the position of the Chief Secretary or Home Secretary to the Government, or a person like the Prime Minister or Home Minister of the Government, is a ground for holding the Act to be unreasonable.

What cannot, however, be overlooked is that only subjective satisfaction of executive officers will justify an order of detention, and no objective standard is supplied. If after the word "satisfied", in Clause (a) of Sub-section (1) of Section 3, and in Sub-section (2) of the same section, three words, "on reasonable grounds" had appeared, it would have been open to the Courts to go into the question whether the grounds were in fact reasonable. These three words "for reasonable grounds" would have supplied a very necessary check against arbitrary use of the power of detention while it is true that we must credit the executive department of the Government with wisdom and good faith, to an equal measure with ourselves, it is equally true that no man can be judge of his own actions, so that it is necessary and proper that the law should provide for a check by the judiciary of the propriety of executive invasion of the important fundamental rights guaranteed by the Constitution. In my judgment, the omission to provide that the satisfaction has to be on reasonable grounds, makes the restrictions imposed by the Act unreasonable.

I am also of opinion that the provisions of Section 14 of the Act, which prevents disclosure to the Court of the grounds of detention, by or on behalf of the detained person, also make the restrictions imposed by the Act unreasonable; but as for the reasons discussed later in this judgment, I am of opinion that Section 14 of the Act is itself void, I do not think it necessary to discuss in detail why I consider the provisions of Section 14 unreasonable. It is sufficient to say that these provisions are unreasonable because they effectively prevent a detained person from having any relief from the courts of law.

I hold, therefore, that the Preventive Detention Act is void, it contravenes the provisions of Article 19 of the Constitution.

On the next questions, viz., whether the Act is void by reason of unauthorised delegation of legislative functions, to the executive, I agree with the conclusions and the reasons for these conclusions, as recorded in the judgment of my learned brother Sinha J. I do not wish to add anything on this question.

This brings me to the question whether the Act is in accordance with Article 22 of the Constitution. It has been contended on behalf of the applicants, that it is not, as the requirement of Sub-clause (a) of Clause (7) that both circumstances and the class or classes of cases must be prescribed, has not been satisfied by any part of the Act. The learned Advocate-General has accepted the position that Sub-clause (a) requires that both circumstances and the class or classes of cases, must be prescribed; but has argued that this requirement has been satisfied by Section 12 of the Act.

An argument that because the opening words of Clause (7) are that the Parliament may by law prescribe, Sub-clause (a) does not require that both class and circumstances should be prescribed, does not, in my opinion, stand scrutiny. If, instead of using the word "may" the Constitution had used "shall" in the opening words, the result would have been turned to make such a law. It was because the Constitution wanted to leave it to Parliament to decide when, if at all, such special legislation should be undertaken, that the word "may" has been used in the opening words. The result of the use of the word "may" is that Parliament may make a law under Clause (7), or may not make any such law. If, however, it proceeds to take action under the permissive "may" in the opening words of the clause, it must, in my opinion, do all that is required in Sub-clause (a) and Sub-clause (b). Sub-clause (a) in terms requires that class or classes of cases and circumstances should be prescribed. If it was not the intention of the Constitution that both class of cases and circumstances should be prescribed, the language would have been "class or classes of cases in which, or the "circumstances under which, or both". As the learned Advocate-General has himself conceded that both class of cases and circumstances have to be prescribed, more detailed discussion is unnecessary.

To understand what kind of prescription of circumstances and classes is required under Sub-clause (a), it will be helpful to consider the entire Clause (7), along with Clauses (4), (5), (6) of Article 22, and to try to see the mind behind the words. These clauses are in the words:

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-

(a) An Advisory Board consisting of persona who are, or have been, or are qualified to be appointed, as, Judges of a High Court...

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-Clause. (6) of Clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses. (a) and (6) of Clause (7).

(5) 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.

(6) Nothing in el. (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under Sub-clause (a) of Clause (4).

The reasons which made the framers of the Constitution incorporate these special provisions in the nature of limitations, on the exercise by the Parliament or the State legislature of the legislative functions entrusted to them under item (9) of the Union List, and item (3) of the concurrent List are not far to seek. Conscious of the difficulties through which the world, which has just emerged from a cataclysm, and India, which has just come into independence, were passing, conscious of the conflict of ideologies which has enveloped country after country in war and strife, and of the dangerous strain and stresses brought about by the creation of Pakistan on our borders, the framers of the Constitution considered that preventive detention was a necessary weapon that might have, at times, to be placed in the hands of the executive-even when there was no such an emergency as is contemplated in chapter XVIII of the Constitution-however much a policy of detention without trial might be repugnant to people, many of whom had, in the days of foreign rule, condemned in no uncertain terms, the iniquities of such a system. So, they included in the legislative lists the item of preventive detention for certain specified reasons. They knew well, however-none better than they-that this was a dangerous weapon, which, if used carelessly, might injure the body politic even more seriously than its enemies. They were anxious, therefore, to provide in the Constitution itself sufficient safeguards against such careless use. These, they have provided in Clause. (4) to (7) of Article 22.

The first is that ordinarily, the legislative power in the matter of preventive detention, shall not be exercised so as to provide for detention for three months. The second is that the person detained will be informed of the grounds of detention, and will be given the earliest opportunity of making a representation against the order. It was obviously thought, however, that an absolute bar against legislation for detention for more than three months might be disastrous. So, an opening was kept for legislation for detention for more than three months, as an extraordinary measure; but special safeguards intended to prevent arbitrary or unnecessary use of such enormous powers were provided. The first safeguard is in Sub-clause (a) of Section 4, the effect of which is that either the Parliament or the State legislature may, by a law of preventive detention, provide for a person who has been detained, being continued in detention even after the expiry of three months, only in accordance with the recommendation for such further detention by an Advisory Board that there is sufficient cause for such further detention. To ensure that this might prove a real, and not a nominal check on the arbitrary exercise of this extraordinary power, the Constitution-makers provided that the Advisory Board would consist of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court.

Alternative provision for the exercise of the legislative power in the matter of preventive detention to provide for detention for more than three months is provided by Sub-clause (b) of Clause (4), read with sub-clauses. (a) and (b) of Clause (7). The effect of these provisions in the Constitution is that a State legislature, or the Parliament, may, in a law of preventive detention, provide for detention for three months, even without the check of the report of an Advisory Board as mentioned above, only if Parliament has made a law in accordance with sub-clauses. (a) and (b) of Clause (7). It is well to remember that the provisions in these sub-clauses, are intended to provide safeguards for the maintenance of a fundamental right, so that a court of law has neither the right nor the duty to explain them away so as to whittle down the safeguards.

The plain meaning of the words in the clause, in my judgment, is that if Parliament decides to make any law under Clause (7), it has to decide first in what class of cases, it will permit legislation for detention for more than three months, without the report of an Advisory Board, to be made, but that alone will not do. Parliament has also to prescribe in its permission the circumstances under which, the legislature, Parliament itself or a State legislature-may, in a law of preventive detention for any particular class of cases, provide for detention for more than three months, even without the opinion of an Advisory Board. And in the law that Parliament may choose to make under Clause (7), the specifications of circumstances in addition to the specification of classes are obligatory. The intention of the Constitution-makers will be entirely defeated, if, by some legalistic sophistry, we were to hold that the same phrases may describe the classes of cases as well as the circumstances.

It is, in my judgment, abundantly clear that the framers of the Constitution intended to require the Parliament to prescribe somewhat on these lines... (i) under circumstance A in class X, (ii) under circumstance B in class Y, (iii) under circumstance C in class Z... It is in my opinion equally clear that the words used in the clause have fully given effect to that intention.

If we examine the two items, in the legislative list, for preventive detention, we find altogether six classes of cases mentioned-

(1) Cases of detention for reasons connected with defence of India.

(2) Cases of detention for reasons connected with foreign affairs.

(3) Cases of detention for reasons connected with security of India.

(4) Cases of detention for reasons connected with security of State.

(5) Cases of detention for reasons connected with the maintenance of public order.

(6) Cases of detention for reasons connected with the maintenance of supplies, and services essential to the community.

It may very well happen that Parliament may decide that for some of these classes, say, those under (2), (4) and (6), no permission for legislation for preventive detention under Clause (7) of Article 22, should be given, but for some classes, say, those under (1), (3) and (5), such legislation should be permitted. It will then prescribe these classes as the classes of cases, for the purpose of Sub-clause (a), in a law made under Clause (7). For these classes, again, Parliament has to prescribe the circumstances under which such special legislation will be permitted.

Section 12 of the Act which, according to the learned Advocate-General, has prescribed both circumstances, and the classes of cases, as required by Sub-clause (a) of Clause (7) of Article 22, is in these words:

Duration of detention in certain cases.-(1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to-

(a) the defence of India, relations of India with foreign powers or the security of India; or

(b) the security of State or the maintenance of public order.

Though the words "following circumstances" are there, no circumstances are in fact mentioned. What is mentioned is clearly a specification of classes-two classes of cases are actually mentioned. The learned Advocate-General argued that these very words-

(a) the Defence of India, relations of India with foreign powers or the security of India; or

(b) the security of State or the maintenance of public order, also prescribe the circumstances, as required by Clause (7). In my opinion, this is a complete misunderstanding of the scheme of Sub-clause (7). After the class or classes of cases have been indicated, it is necessary for the Parliament to lay down, for each such class, the circumstances under which preventive detention can be for more than three months. That has not been done.

I hold, therefore, that Section 12 of the Act is not in accordance with the provisions of Sub-clause (7) of Article 22.

There is another aspect of Clause (7), which requires consideration. The words in Clause (7) are not that Parliament may by law prescribe (a) the circumstances under which and the class of cases in which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4); but these are:

Parliament may by law prescribe (a) the circtimstances under which and the class or classes of cases in which a person may be detained for a period longer'' than three months under any law of preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4).

I have underlined the words "under any law of preventive "detention" to indicate that the presence of the words does make a difference. That these words had to be there, is obvious from a reading of Clause 4(6) of the Article. Leaving out Sub-clause (a), the clause runs thus:

No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses. (a) and (b) of Clause (7).

Heading Clause 4(b) and clause 7(a) and (b) together, it is abundantly clear to my thinking that when Parliament makes a law under Clause (7), it is to be somewhat in these lines:

It is hereby enacted that in the following classes of cases, and under the following circumstances, a person may be detained under any law providing for preventive detention for a period longer than three months, without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4); and that the maximum period for which any person may be detained under any law providing for preventive detention is as stated below for the following classes of cases...

After Parliament has made any such law under sub-clauses (a) and (b) of Clause (7), the Parliament or any State legislature may make a law of preventive detention providing for detention of any person for more than three months in accordance with the provisions of the law already made by Parliament under the abovementioned sub-clauses.

Section 12 of the Act, which purports to have been made under sub-clauses. (a) and (b) of Clause (7) of Article 22, does not even mention the words "under any law providing for preventive "detention". It proceeds, as if these words did not exist in either Sub-clause (a) or (b).

In my judgment, Section 12 of the Act cannot be held to be a law under sub-clauses (a) and (b) of Article 22.

It was next contended by Mr. Atul Chandra Gupta that Sections. 10 and 11 of the Act are not in accord with Article 22, Clause (4), Sub-clause (a).

The obvious purpose of Section 10 and Section 11 is to provide for detention for a period of more than three months on the report of an Advisory Board and in order to the valid, they, must satisfy the provisions of Sub-clause (a) of Clause (4) of Article 22. The provisions are in these words:

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (6) of Clause (7).

The controversy is on the meaning to be attached to the word "such". Mr. Gupta contends that applying the ordinary rules of grammatical construction, "such detention" cannot but mean "detention for a longer period than three months". In my judgment, this contention should prevail. If all that was required for a law authorising detention for more than three months to be valid was that the Advisory Board should be satisfied that there is sufficient cause for the detention of the person, the use of the word "such" would have been entirely unnecessary. We have no right to think that the framers of the Constitution have been guilty of such surplusage.

I am also of opinion that in order to be within this sub-clause, the law of preventive detention has to provide that when an Advisory Board, before three months have expired since the detention commenced, reports that there is sufficient cause for detention for a further period, such person may be detained for the further period as stated by the Advisory Board, provided the total period is within the maximum fixed under Sub-clause (b) of Clause (7).

What Section 10 of the Act provides is that the Advisory Board shall in its report specify, in a separate part thereof, its opinion as to whether or not there is sufficient cause for the detention of the person concerned Giving the ordinary meaning to the words used, I find that the Advisory Board is not required by the Act to give its opinion, whether or not there is sufficient cause for detention for a further period after the expiry of three months, but merelf whether or not there is a sufficient cause for the present detention. Section 11 again gives the Government concerned power to continue the detention of the person concerned for such period as it thinks fit-irrespective of the opinion, if any, that may be expressed by the Advisory Board as regards the period of further detention that is justifiable.

These provisions under Sections 10 and 11 of the Act are not, therefore, in accordance with the provisions of Sub-clause (a) of Clause (4) of Article 22.

My conclusion, therefore, is that none of the provisions of the Act, which provide for detention of persons for more than three months, is in accordance with Article 22 of the Constitution.

The last question of law is whether Section 14 of the Act is invalid.

The first Sub-section of this section prohibits all courts from allowing any disclosure of the grounds of detention or of any representation made by the detained person, and takes away the rights of courts to require any public officer to produce "that "part of the report of an Advisory Board which is confidential."

This unusual provision has obviously been made for fear that the disclosure of the grounds for detention, in court or the disclosure of the report of the Advisory Board, might defeat the (sic)v object for which detention has been made. However laudable the object may be, there can be no doubt whatsoever that in substance, this provision makes nugatory the provisions of Article 32 as well as Article 226 of the Constitution. Article 32 guarantees the right of every person to move the Supreme Court for the enforcement of the fundamental rights, conferred by the Constitution, and so guarantees, among other things, the right of a detained person to move the Supreme Court for a writ of Habeas Corpus. It is absolutely necessary for the Supreme Court to know the grounds for detention, before it can decide what action it should take on the application of the detained person. For one thing, if the question of mala fide is raised, the Court cannot possibly consider it, unless it knows the grounds of detention. The question is not whether the application will be successful or not; the question is whether it is possible for the Court to consider the application properly, unless it knows the grounds of detention. In my opinion, this is wholly impossible.

The learned Advocate-General argued that disclosure of grounds is not necessary for the act of moving the Supreme Court; and that so long as it is not said that no detained person shall apply to the Supreme Court for a writ of Habeas Corpus, the right conferred by Article 32 is not abridged.

In my opinion, this argument should not prevail. When the Constitution provided a right to move the Supreme Court it necessarily meant that the Supreme Court should not be prevented from properly considering the application. If the argument advanced by the Advocate-General was correct, the right under Article 32 of the Constitution will not be infringed, even by a law that no court will allow the application of a detained person against the order of, detention.

In my judgment, the interpretation of Article 32, as proposed by the learned Advocate-General, will be a fraud on the Constitution.

When the proper meaning is attached to all the words-

The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Party is guaranteed, the conclusion is, in my judgment, inevitable that the law as enacted in Section 14 which prevents the detained person from properly moving the Supreme Court, substantially abridges the right conferred by Article 32 and is, therefore, void.

In my opinion, the section is also invalid, inasmuch as it prevents the High Courts from exercising their power under Article 226 of the Constitution. As I have already pointed out, the provisions of Section 14 effectively prevent the Courts from properly considering any application for a detained person for a writ of Habeas Corpus. The legislature has no right to prevent the judiciary from considering matters that come before them.

In my judgment, when the Constitution gives the High Courts the power to issue a writ of Habeas Corpus, that itself is sufficient guarantee that this power will not be taken away. Section 14 of the Act does, in my opinion, mutilate this power in substance, though not in form.

It is against the Constitution, and so is invalid in law.

I am of opinion, however, that Section 14 is severable from the other provision of the Act and the invalidity of Section 14 does not affect the validity of the Act as a whole.

On the question of fact whether the satisfaction recorded in the orders was a real satisfaction or not and the question of mala fide, I agree with the conclusions of my learned brothers Das and Sinha JJ., and the reasons given by them for the same.

The result of all the conclusions I have reached, on the different questions of law and fact, is that my reply to the two questions referred to the Full Bench is in the affirmative, and that the Preventive Detention Act being void, as it contravenes the provisions of Arts. 19 and 22 of the Constitution, the orders of detention under which the applicants before us are being detained are, in my opinion, illegal and these applications should be allowed, and the applicants should be released from detention.

P.B. Mukharji J. These are forty-nine applications moved by and on behalf of persons in detention under the Preventive Detention Act, 1950 (Act IV of 1950). The applications are made u/s 491 of the Code of Criminal Procedure for these persons to be brought up before Court to be dealt with according to law. Detention in each case is said to be illegal or improper. The points raised in these applications are the same, and Mr. Atul Gupta made the leading argument on behalf of the applicants.

The points for decision may be enumerated as follows: (1) The Preventive Detention Act, 1950, is ultra vires the Constitution of India because it is not a "reasonable "restriction" on the right to move freely under Article'' 19(1)(d), read with Sub-clause (5), of the Constitution.

(2) The Preventive Detention Act is ultra vires the Constitution because it is a piece of delegated legislation, not permitted by the Constitution.

(3) In any event parts of the Preventive Detention Act, 1950, e.g., Sections. 8-12, are ultra vires Article 22, sub-clause (4)(a) and Sub-clause (7) of the Constitution and that Section 14 is ultra vires Article 32 of the Constitution and are, therefore, void under Article 13(2) of the Constitution.

(4) Such partial invalidity of the statute invalidates the entire statute as the impugned sections are not severable.

(5) In any event again, the detention orders are bad because the satisfaction of the authority as required u/s 3 of the statute is stimulated and mala fide, in the technical sense.

These applications come by way of reference from the Special Bench constituted by Harries C.J., Sen J., and Banerjee J. The order of reference to this Full Bench raises the following question for decisions:

I. Whether a Court has jurisdiction to hold that an enactment of the Central Parliament or a State legislature providing for deprivation of personal liberty is invalid if the enactment does, in the opinion of the Court, impose restrictions which are unreasonable in the interests of the general public or for the protection of the interests of a schedule tribe.

II. Is the case of Sunil Kumar Bose and Others Vs. The Chief Secretary to the Government of West Bengal and Another, correctly decided in so far as it held that in such circumstances the Court could declare an enactment invalid.

With those two specific questions, the whole case has also been referred to this Full Bench for decision.

As the formulation of the points will show large issues of personal liberty, constitutional guarantee of fundmental rights under the Constitution and the power of judicial review of Parliamentary legislation on the ground of reasonableness have been raised. Undoubtedly, they are questions of supernal importance for the personal liberty of the individual citizen and good governance of the nation.

The Constitution of India is a monumental endeavour of a nation to avail of the experience of the great democracies of the world. While it has drawn upon the treasury of the world''s wisdom and experience in constitutional experiment, the Constitution of India is no mere imitation but stands by itself, unique in its character and assimilation. The need to realise its singularity is imperative if only to avoid the risk and danger of unwary application of the principles of the decisions of the Supreme Courts of America, Australia and Canada to the Indian experiment in constitutional government. The reality of this danger became clear to me as I listened to the arguments addressed to this Court which had the familiar ring and stamp of borrowed models of the American, Australian and Canadian cases. The American Constitution provides for a Presidential system of Government, with irresponsible executive not drawn from the legislature. Indian Constitution combines the Presidential system with responsible executive drawn from the legislature. The residuary powers in the American Constitution, as indicated in the 10th Amendment, lie with the people or the States. But the residuary powers of legislation in the Indian Constitution lie with the Indian Parliament by virtue of Article 248 of the Constitution. There is no exhaustive enumeration of legislative lists in America as we have in the Indian Constitution. The American Congress is a legislative and not a constituent body. The British Parliament is both a legislative and a constituent body. Neither the Australian nor the Canadian Parliament is a constituent body in the sense that British Parliament is. But as Article 368 of the Constitution of India provides the Indian Parliament is only partially constituent. These fundamental differences must be borne in mind before we apply the American, the Australian or the Canadian precedents to India. These are essential differences which bear on the problems raised in these applications such as the delegation of legislative power.

Indian Constitution will have to develop its own principles of construction and evolution and we proceed on no borrowed thoughts. Having regard to these differences, when compared with other Constitutions of the Federal democracies of the world, great caution is required in applying the American, Australian and the Canadian precedents and the warning is essential on this point. That does not mean that those precedents should altogether be discarded and cannot be looked into. The conclusion is that the decisions of the Supreme Courts of America, Australia and Canada may be referred to as useful aid to the interpretation and exposition of the many common or similar constitutional principles that exist between India and these countries and in that regard they may be taken as persuasive authority of the highest order but care must be taken not to treat them as binding authorities and in applying them to India scrupulous regard and utmost judicial circumspection must be brought to bear on the points of divergence between those systems of constitutional government and our own.

Before I proceed to deal with the specific problems raised on these applications, a word is necessary on the principles of construction of the constitution to be applied in determining the issues before this Court. The words of a Constitution for the government of a nation must not be read as a mere legislative code subject to continuous revision with the changing course of events but as the revelation of the great purposes which are intended to be achieved by the Constitution as a continuing instrument of practical government. The subject is the execution of those great powers, on which the welfare of a nation essentially depends and the provision is made in a Constitution which is intended to endure for ages to come so that there must be that elasticity in its construction which permits adaptation to the myriad crises in human affairs. The content of constitutional immunities is not constant but varies from age to age. The needs of present generation may make restrictions imperative today which were vain and capricious to the vision of the past times. Statutes are designed to meet the fugitive exigencies of the hour. Statutory amendment is easy as the exigencies change. But a Constitution states the rules not of the passing hour and the fleeting moment but the principles for an expanding future. A construction which destroys the very basic institutions of a Constitution is to be avoided and that which holds it true to its function is to be accepted The Constitution, it is said, is an experiment as life is an experiment. As the living organism grows by virtue of the life force that is within and by its capacity for adaptation to the changing circumstances of life and its environments, so must the Constitution be construed as the sovereign will of the people giving the life force to the Constitution with the capacity to meet the growing and varying needs of the political, civic and economic life of the nation. Construction in this context should not degenerate into a dissection of a mere dead anatomy but should mean the exposition of a living Constitution. The same view is expressed by Lord Wright in the Privy Council in James v. Commonwealth of Australia (1936) AC. 573, 614:

It is true that a Constitution must not be construed in any narrow and pedantic sense. The words used are necessarily general and their full import and true meaning can often only be appreciated when considered as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes but the changing circumstances illustrate and illuminate the full import of that meaning.

If any more authority is needed for these general principles of construction of a written Constitution, it may be found in the celebrated statements of the great Judge, Marshall C.J. in McCulloch v. Maryland (1819) 17 U.S. 314 and Stone C.J. in V.S. v. Classic (1941) 313 U.S. 299 and Cardozo J. on the nature of judicial process. The fundamental principle of a written constitution is that laws and not men shall govern. The constitution must also be construed as a whole and as a living practical instrument of government. These are the particular principles of construction when expounding a constitution, not in derogation of hut in addition to the general principles of interpretation which must apply also to a constitution as in the case of any written document and, broadly speaking, the rules governing judicial interpretation of all written documents are the same whatever the nature of the document may be. In re Levy 17 ch.D. 746 and Curtis v. Stovin 22 Q.B.D. 513. In case of any ambiguity, a construction should be adopted which is in harmony with the general scheme of the constitution and recourse may be had to the history of the constitution and contemporaneous circumstances for proper exposition of the constitution as laid down in the State of Tasmania v. The Commonwealth (1904) 1 C.L.R. 329. The words in which the constitution is couched are to be construed in their natural and ordinary sense, effect being given to every word and not rejected as surplusage. As Willough by on the Constitution of the United States, 2nd Ed., Vol. 1, p. 60, points out, resort to the history of the times and to the general object sought to be obtained is permitted in interpreting a constitutional provision, if there be any ambiguity upon it and Story J. observes that-

No Court of Justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction equally accordant with the words and sense thereof will enforce and protect them.

The Constitution is the supreme law of the land and whether it is the legislature or the executive or the judiciary, each must work or function under such limitation and such guarantee which the Constitution provides. There is in that sense no supremacy of Parliament in the written Constitution or in other words it is the Constitution which is supreme and even Parliament must function" subject to the Constitution.

The first argument proceeds on the basis of that Article 19 of the Constitution controls Article 21 of the Constitution. The substance of the argument is that preventive detention under the Preventive Detention Act, 1950, is a restriction on the right to move freely throughout the territory of India and, therefore, infringes the fundamental right of the citizen guaranteed under Article 19(7)(d) of the Constitution. Then, it is said that as the Act is not a reasonable restriction on such right it infringes Sub-clause (5) of Article 19(7) of the Constitution and is, therefore, void under Article 13(2). The major premise of this argument is, in my opinion, fallacious. Sub-clause (d) of Article 19(7) of the Constitution is not, in my view, synonymous with the free movement of a person, which is said to be infringed by the Preventive Detention Act. That Sub-clause (d) means not free movement in general but the particular class of free movement and that is "throughout "the territory of India". This expression "throughout the "territory of India" according to the construction contended on behalf of the applicants becomes a wholly unnecessary surplusage. All rights under Article 19(1) must be and can only be understood with reference to the territory of India and the suggestion is otiose that the expression has been used to limit the geographical area of operation of free movement. Even if that is so, then why is not the same expression used for the same reason in respect of rights under other sub-clauses. (a), (b), (c), (f) and (g) of the same Article? Besides this major premise being wrong, I will give my other considerations on this branch of the case from other points of view.

Fundamental Eights appear in Part III of the Indian Constitution and the guarantee is given that the State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention shall to the extent of the contravention be void. That is the provision under Article 13(5) of the Constitution in the Chapter or Part III on Fundamental Rights. An analysis of Fundamental Rights as contained in Part III of the Constitution shows that the Constitution guarantees seven different rights. They are:

(1) Right to Equality,

(2) Right to Freedom,

(3) Right against Exploitation,

(4) Right to Freedom of Religion,

(5) Cultural and Educational Rights,

(6) Right to Property, and

(7) Right to Constitutional Remedies.

These are constitutional rights and justifiable by the Courts. Article 32 of the Constitution provides that appropriate proceedings for the enforcement of the Fundamental Rights can be taken in the Supreme Court of India and the Supreme Court is specially empowered to issue directions or orders or writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, whichever may be appropriate for the enforcement of any of the Fundamental Rights. In almost similar terms the same power is given to the High Court for enforcement of Fundamental Rights under Article 226. of the Constitution. Unlike the Directive Principles of the State Policy contained in Part IV of the Constitution which are. not justifiable by the Court these Fundamental Rights will be enforced by the Courts.

The point for determination before this Court relates to the "Right to Freedom". This is one of the seven Fundamental Rights guaranteed by the Constitution. Under this Right of Freedom many different rights and protection are given to all as coming within the Right to Freedom. The scope of this Right to Freedom, including specification of rights that are intended to he included under this Right to Freedom, is contained in four articles, namely, Articles 19, 20, 21 and 22 of the Constitution.

There are many answers to the arguments made on behalf of the persons under detention on this branch of the case.

(1) Preventive detention is deprivation of personal liberty within the meaning of Article 21 of the Constitution and only incidentally trenching on the right to move as specified in Article 19(1)(d). The pith and substance of preventive detention is deprivation of personal liberty so as to prevent the person from acting in a manner prejudicial to the security of India or State or maintenance of public order or maintenance of supplies and services essential to the community. That, as a consequence of such preventive detention, the person detained loses any specific and individual right like right to move or the right to practise profession or carry on trade (Article 19(1)(g)) does not make the law of preventive detention a "law imposing restrictions on "the exercise of the right" to move and, therefore, does not come within Sub-clause (5) of Article 19 of the Constitution, so as to be subject to judicial review on the ground of unreasonable restriction. The words "any law imposing reasonable restrictions on "the exercise of any of the rights" appearing in Sub-clause (5) of Article 19 of the Constitution mean, in my judgment, a law whose purpose is to affect any of the rights specified in Article 19(1)(d), (e) and (f) and not a law made for any other purpose, as a consequence of which any of the rights under Article 19(1) may be affected. The Privy Council, in the Bank of Commerce cases L.R. 74. IndAp 23, 45, while construing legislative power under the Government of India Act, 1935, with reference to the legislative lists enunciates the principle of construction, on the basis of pith and substance, of a law or a legislation and says that if the pith and substance of a law is something then the fact that such law incidentally or consequentially trenches upon any other legislative power does not make it bad. The Privy Council also enunciated, in those cases, the principle that the validity of an Act is not to be determined by the degree of invasion or trenching, although such degree may be a useful guide to find out the pith and substance of the impugned law. I see no reason why such principle should not be applied in construing Article 19 of the Constitution and its various sub-clauses. The reason is that Article 19(7) protects the specific rights of a citizen to (i) freedom of speech and expression, (ii) assemble peacefully and without arms, (iii) form association or unions, (iv) move freely throughout the territory of India, (r) acquire, hold and dispose of property and (vi) to practise any profession or to carry on any occupation, trade or business. These are the rights which cannot ordinarily be taken away or abridged by any law. This means that on these subjects the legislature cannot make any law taking away or abridging them. In other words, they define the excluded field and operate as restrictions on the legislative competence and power of Indian Parliament and State legislatures. Then follows six different sub-clauses to this Article 19(2) engrafting exceptions upon those specified rights and permitting legislation affecting such rights. Therefore, when any law whether permissible within the sub-clauses. (7), (3), (4), (5) and (6) of Article 19 or not, is made, such law should first be tested by the same principles of pith and substance and incidental trenching, as laid down by the Privy Council with reference to the hierarchy of legislative powers contained in the Legislative Lists. With a view to find out whether such law imposes any reasonable restriction on the rights mentioned under those sub-clauses or it is some other kind of law not coming within the purview of Article 19 and its sub-clauses the pith and substance rule is a general principle of construction of law always applicable whenever there is a legislative power and a field excluded from its operation or carrying restriction upon such legislative power.

(2) Personal liberty as an independent and integral notion in Article 21 is not a mathematical summation or a mechanical compound of different specific individual rights mentioned under Article 19(7) of "the Constitution. It has a different qualitative as opposed to quantitative connotation than the mere totality of the rights enumerated in Article 19(7) can signify. The content or the basic origin of personal liberty is freedom from trespass to the body, assault, hurt, battery and arrest. "Personal liberty" in Article 21 and in the context of Part III of the Indian Constitution is qualitatively a different concept apart from the rights under Article 19(7). Blackstone only mentions what has emanated and issued out from the original notion of personal liberty. In its negative aspect, the antithesis of personal liberty is detention, preventive or otherwise, and is not restriction on the right of movement or to carry on trade or profession under Article 19(1)(d) or (g). In other words, the rights under Article 19(7) of the Constitution, neither individually nor collectively, mean personal liberty in the context and language of the Constitution of India.

Blackstone''s observation: this personal liberty consists in the power of locomotion of changing situation or moving one''s person to whatever place one''s own inclination may direct without imprisonment or restraint unless by due course of law.

(Blackstone''s Commentaries on the Laws of England, edited by Chase, 4th Ed. p. 73) should not, in my view, he applied to the particular context of the Indian Constitution. Personal liberty is a word with a multitude of ideas and is a concept of such generality that it is essential to see whether the context of the Indian Constitution will conform to the notion of such generality and its attendant ideas which usually pass for personal liberty. The word "personal liberty" is not used in Article 19. If it was the intention to guarantee by Article 19 all kinds of personal liberty, the Constitution would then have said so and included within it personal liberty. It is also significant that Article 19 does not proclaim, give or protect the right to life. Both life and personal liberty are the subject-matter of Article 21 of the Constitution. It is essential, in my view, to just construction that many words which import something excessive should be understood in more mitigated sense, as was observed by Marshall C.J. in McCulloch v. Maryland (1819) 17 U.S. 314. In my judgment, having regard to the different Articles 19, 20, 21 and 22 under the sub-heading of "Right to Freedom" and having regard to the special context of the Constitution contained in these Articles, the words "personal liberty" in Article 21 should be construed in that mitigated sense as meaning "freedom from "arrest and trespass to the body" which is its original meaning and not in the Blackstonian sense of personal liberty or personal liberty as understood in common parlance both of which import only the secondary or consequential accretions to the original idea of personal liberty. If the law affecting personal liberty was intended to be placed under judicial review on the ground of reasonableness then the scheme of the Constitution should have been to include personal liberty as one of the enumerated and guaranteed rights under Article 19 to be governed by one of its sub-clauses which permit a law imposing only reasonable restriction thereon. To include personal liberty within the operation of any of the rights under Article 19(2) and then make it subject to judicial review on the ground of reasonableness is to do violence to the entire scheme of the Constitution. The argument that it is not placed under Article 19(2) of the Constitution because the Constitution wanted to provide a double safeguard in respect of personal liberty-one being that it must be a reasonable law reviewable by the Court on the ground of reasonableness and the other being one merely of a legal procedure- seems to me to proceed on the basis of a construction of the words ''''procedure established by Law" in Article 21 which, in my view, is erroneous, as I shall presently endeavour to show, and to mistake sub-clauses of Article 19(7) of the Constitution as the source of legislative power (instead of restrictions on legislative power) for Articles 245, 243 and 248 of the Constitution, read with the Legislative Lists in the Seventh Schedule of the Constitution which are the fountain source of legislative power under the Constitution.

The view that I take that personal liberty is excluded from the operation in Article 19 altogether by the text of the Indian Constitution is fortified by reference to the Drafting Committee''s Report on Clause (15) of the Draft Constitution of India, prepared by the Drafting Committee of the Constituent Assembly and published by the Government of India in 1948 and which is an official record of the history and process leading to the Constitution of India. It is distinctly stated there that the Drafting Committee was of the opinion "that the word ''liberty'' should be "qualified by the insertion of the word ''personal'' before it, for "otherwise it might be construed very widely so as to include "even the freedom already dealt with in Article 13". Article 13 in the Draft Bill is the present Article 19 in the Constitution. To construe, now, the words "personal liberty" in Article 21 in a manner which includes within its ambit the enumerated freedoms or rights under Article 19(1) (which was Article 15 in the Draft Constitution) is to defeat the whole object and intention of such alteration, and will not be carrying out the national will of the people of India expressed through her Constituent Assembly.

As I have already indicated elsewhere in this judgment, resort to the history of the times and to the general object sought to be attained is permissible in interpreting the constitutional provision if there be any ambiguity upon it-(Willoughby on the Constitution of the United States, 2nd Ed., Vol. I, p. 60) and, also to the authorities in the State of Tasmania v. The Commonwealth (1904) 1 C.L.R. 329, in which case the Draft Bills were examined for a proper construction of the Australian Constitution. In this case, the Report is of the Drafting Committee addressed to the President of the Constituent Assembly enclosing the Draft Constitution and not mere debates of individual members. Willoughby on the Constitution of the United States, 2nd Ed., Vol. 1, at p. 57, observes:

For the interpretation of ambiguous or uncertain statutory provisions the Courts -will more readily resort to declarations of legislative intent contained in Reports of Congressional Committees or the statements of the Chairman of such Committees than in the records of the debates attending the enactment of the statutes.

And again at p. 59, the learned author states the law in these terms:

But Reports of Committees of House and Senate stand upon a more solid footing and may be regarded as an exposition of the legislative intent in a case where otherwise the meaning of a statute is obscure. And this has been extended to include explanatory statements in the nature of a supplemental report made by the Committee member in charge of a Bill in course of passage. While it is generally true that debates in Congress are not appropriate sources of information from which to discover the meaning of the statute yet it is also true that Reports of the Committees of either Body have been examined to determine the scope of the statute passed on the strength of such Report. At p. 60 the learned author further elucidates the legal position on this point:

But the reports of a Committee including the Bill as introduced, changes mad-in the frame of a Bill in the course of its passage and statements made by the Commitee Chairman in charge of it stand upon a different footing and may be resorted to under proper qualifications.

There are many authorities in support of the proposition that reports of legislature or legislative Committee or of Constituent Assembly may be referred to for the determination of the scope and extent of the enactment. I shall notice only a few. In Marshall Blake v. The National City Bank of New York (1874) 90 U.S. 119, the Supreme Court of America observes:

This Court may ascertain the legislative intention of an Act by a recurrence to the mode in which the amendatory words were introduced as shown by the journals and records, and may give such construction to the statute as will carry out the intention of Congress.

In that case, at p. 120, the judgment elaborately discusses and quotes from the Draft Bill and the amendments introduced. In the Church of Holy Trinity v. U.S. (1891) 143 U.S. 457 : 36 Law Ed. 226, the Supreme Court of America observes:

Another guide to the meaning of a statute is found in the evil which it is designed to remedy and for this the Court properly looks at contemporaneous events, the situation as it existed and as it was pressed upon the attention of the Legislative Body.

At p. 230 Brewer J. delivering the opinion of the Supreme Court observes:

We find, therefore, that the title of the Act, the evil which was intended to be remedied, the circumstances surrounding the appeal to Congress, the reports of the Committee of each House, all concur in affirming that the intent of Congress was simply to stay the influx of this cheap unskilled labour.

At p. 232 of this Report the learned Judge observes on the question of construction:

The construction invoked cannot be accepted as correct. It is a case where there was presented a definite evil in view of which the legislature used general terms with the purpose of reaching all phages of that evil and thereafter unexpectedly it is discovered that the general language thus employed is broad enough to reach cases and aets which the whole history and life of the country affirm could not have been intentionally legislated against. It is the duty of the Courts under those circumstances to say that however broad the language of the statute may be the Act although within the letter is not within the intention of the legislature and therefore cannot be within the statute.

Again in Joseph R. Binns v. U.S. 194 U.S. 486 : 48 Law Ed. 1087, the Supreme Court of America observes at p. 1090:

So far as we may properly refer to the proceedings in Congress while it is generally true that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body yet it is also true that we have examined the reports of the Committee of either Body with a view of determining the scope of the statutes passed on the strength of such reports.

The Australian Supreme Court has also followed the same principle of construction. Dr. Kerr on his Treatise on the Law of Australian Constitution, 1925 Ed., observes at p. 50:

As a matter of history of the legislation, the Draft Bills of 1891, 1897 and 1898 which were prepared under the authority of the Parliament of the several States may be looked to but the High Court early refused to permit citation of the convention debates but in view of the citation of Lord Haldane''s speech in the House of Commons on the introduction of the Commonwealth of Australian Constitution Act in that House in Amalgamated Society of Engineers v. Adelaide Steamship Co., Ltd. (1920) 28 C.L.R. 129, 147 this cannot be regarded as an inflexible rule.

Even in England, where the more orthodox principle of construction prevails, the Privy Council in Hebbert v. Purchas (1871) L.R. 3. P.C. 605, 648 referred to the proceedings of the House of Lords and the Commons Journals in construing the meaning of an Act of Parliament in these terms:

The Act of Uniformity reflects by the strictness of its provisions the temper of the framers. The fate of a proviso as to the dispensation with deprivation for not using the Cross and Surplice which was sent down from the House of Lords to the House of Commons illustrates this. The Commons rejected the proviso (Commons Journals, VIII, 413) and in the subsequent conference between the two Houses the Manager Serjeant Charlton gave amongst other reasons for rejecting the proviso that it would unavoidably establish schism, that he thought it better to impose no ceremonies than to dispense with any and he thought it very incongruous at the same time when you are settling uniformity to establish schism (Lords'' Journals, Vol. II, p. 449). And the House of Lords agreed that this proviso should be struck out (Lords'' Journal, Vol. II, p. 450). It cannot be supported that an Act which applied the principle of uniformity so strictly in one direction was intended on the other to open the door to a return to practices that were suspected as Romish and this without serious remonstrance in either House from the minority. The purpose of the Act is clear. It was to establish an uniformity upon all parties alike. That is its language and that is the interpretation it bore with those in authority who had to expound it in the Visitation Articles and the like.

These are the very clear observations of Lord Heatherley, the Lord High Chancellor of England, delivering judgment in the Privy Council.

Unquestionably, the words of the Constitution are the first considerations in the matter of construction. On a proper construction of the words "personal liberty" in Article 21 of the Constitution of India, I am of the opinion that those words mean freedom from arrest and trespass to the body. I find this view supported not only by the original meaning of the words "personal liberty" but also by the Report of the Drafting Committee of the Constituent Assembly of India which prepared the Constitution stating that the word "personal" was introduced before the word "liberty" in order to make it clear that the expression "personal liberty" is not to include the specific and individual rights mentioned in Article 19(1)(d) of the Constitution.

(3) Article 21 of the Constitution uses the word "deprived". Article 19, Sub-clause (5) of the Constitution uses the word ''restrictions''. Restriction is not deprivation. A statute should ordinarily be held and construed to use the same expression throughout to denote the same idea and if different expressions are used then such different expressions should not ordinarily be construed to mean the same idea. Therefore, ''restriction'' in Sub-clause (5) of Article 19 of the Constitution, with reference to the problem before the Court relating to the "right "to move", means that the right to move is not competently gone or deprived but restricted, or in other words, that means that the citizen''s right to move still remains. The point is best illustrated by the example when there is any law restricting the right to move in the sense that a citizen shall not move in a protected area or in a reserve forest so that his right to move to other, places and other areas remains. A similar situation is referred to by the American Supreme Court in Edwards v. California (1941) 314 U.S. 160, where it says:

He may not being a fugitive from justice claim freedom to migrate unmolested nor may he endanger others by carrying contagion about.

That is the case of reasonable restriction. But when a citizen is arrested or kept in preventive detention that is not a case of restriction of his right to move but for the time being, i.e., for the duration of his arrest or preventive detention there is a deprivation or complete extinction of his right to move. In that view of the matter, I am of the opinion that the law of preventive detention as contained in the Preventive Detention Act is not a law imposing restriction on the right to move and, therefore, not reviewable or justifiable by the Court on the ground of its reasonableness or unreasonableness.

Article 21 of the Constitution uses the word "deprived" which on a proper construction means total extinction. This argument is further strengthened by consideration of Article 19(2)(f) read with Article 31 of the Constitution. Article 19(1)(f) provides that a citizen shall have the right to acquire, hold and dispose of property, while Article 31 which is also a fundamental right provides that no person shall be deprived of his property save by authority of law. It cannot, in my opinion, be the intention of the Constitution that when a person is deprived of his property by authority of the law under Article 31 of the Constitution that person can come to the Court and say that the law which deprives him of the property is unreasonable within the meaning of Article 19(1)(f), read with Sub-clause (5) of the Constitution and ask the Court to review that law depriving him of such property on the ground of unreasonableness. Had that been the intention then Article 31 would not have been framed in the way that it is by the use of the expression "authority of law".

This is also incidentally an argument in answer to the explanation which has been offered that Article 21 of the Constitution means only procedure and, therefore, it was not included under Article 19(1) because Article 19(1) according to that explanation relates to law and, as such, already covered questions of life and personal liberty as coming within the enumeration of Article 19(7). Because, if that argument or explanation was right then why use "procedure established by law" in Article 121 and a totally different expression "authority of law" in Article 31 of the Constitution? Here again the source of the legislative power is drawn from Articles. 245 and 246 of the Constitution, read with item 6 of the Concurrent List, so far as transfer of property is concerned and not Sub-clause (5) of Article 19 of the Constitution. Therefore, it is clear that to uphold the applicant''s contention will be to make Article 31 of the Constitution entirely unnecessary. This comparison between Sub-clause (5) of Article 19 with Article 31 of the Constitution also shows the distinction that must be maintained between the words ''restrictions'' on the one hand and ''deprived'' on the other. If a man''s property itself is acquired by the authority under Article 31 then he can have no right to acquire, hold and dispose of the property within the meaning of Article 19(7)(f) because the very object (i.e., the property with reference to which his right under Article 19(1)(f) is to be exercised) is no longer there. The right under Article 19(1)(f) contemplates and assumes that the property is there over which the right could be exercised and Sub-clause (5) of Article 19 merely means this that only reasonable restrictions can be imposed on the right to hold, acquire and dispose of that property but not where there is deprivation or total extinction of the property itself. That is the difference between restrictions and deprivation. It is no answer to this argument to say that deprivation is total restriction or that restriction is only partial deprivation for that is mere verbal ratiocination which does not explain why Parliament should use different expression to mean the same idea. As I have just said if the contention on behalf of the applicants was to be upheld then Article 31 of the Constitution, in this sense, would be wholly unnecessary because the State could always make any law imposing reasonable restriction on the right to hold, acquire and dispose of property by exercising legislative power, say, under item 6 of the Concurrent List. Such contention, therefore, cannot be right also because as I have said, if the property itself is acquired by authority of law no question of right under Article 19(1)(f) can arise.

It is unnecessary, in my view, in this context to limit the operation of Article 19(1) to a free citizen. I am of the view that it is not permissible to restrict the meaning of Article 19(1) by introducing the word ''free'' before the word ''citizens''. All citizens are free until the point of time when an order of detention is made or actual detention effected and it seems to me inappropriate to say that the moment a citizen is detained he cannot have the rights mentioned under Article 19(1). This point is best illustrated by this example. Even a man imprisoned or detained can acquire, hold and dispose of property within the meaning of Article 19(1)(f) of the Constitution. That, in my opinion, conclusively proves that a citizen need not necessarily be free in order to exercise the rights under Article 19(1) or at any rate one of such rights. Equally, in my view, it is unnecessary to launch into the policy of the Constitution making a difference between a foreigner and a citizen and arriving at a construction of the Constitution on the basis and assumption that a Constitution of a country cannot make a distinction between a foreigner and a citizen. In my judgment, a construction of the Constitution which is induced by reference to the word "citizens'' in Article 19(1) and the ''person'' in Article 21 on the basis that no distinction between a foreigner and a citizen was intended under the Constitution is necessary. I must, however, observe that it is a well-settled principle of international law, as Oppenheim puts it in the 6th Ed. of his famous work on "International Law", pp. 627-28, Vol. I:

Every State is by the Law of Nations compelled to grant to aliens at least equality before the law with its citizens as far as safety of person and property is concerned.

Nor again is it justifiable approach to say that a citizen has far greater rights than those stated in Article 19(1) of the Constitution such as he can eat what he likes subject to Rationing Laws, work as much as he likes or idle as much as he likes or drink anything he likes subject to Licensing Laws and smoke whatever he like6. Such rights as the right to eat, to drink and to smoke are not constitutional and fundamental rights. To refer to these rights in connection with the construction of the expression "personal "liberty" is to confuse the original meaning of personal liberty as freedom from arrest and trespass to the body with its secondary accretions, and which confusion is the very fallacy to be avoided in the context of the Indian Constitution.

It is essential to bear in mind the vast difference between the American Law and the Indian Constitution on this problem of personal liberty. The Constitution of America does not use the expression "personal liberty" as we have done in the Indian Constitution. Both the 5th and the 14th Amendments of the American Constitution use the word ''liberty''. Both by the text as well as by the context this fundamental difference in the American Constitution and the Indian Constitution is an essential dividing line. The result of this difference is also fundamentally divergent. Failure to mark this difference vitiates, in my opinion, the arguments addressed to us on behalf of the applicants, on the problem of personal liberty. The American constitutional principle has attempted to include within the word ''liberty'' in its Constitution not only freedom from arrest and trespass to body which is "personal liberty" but also other liberties emanating therefrom like the freedom of speech, the freedom of education, the freedom of peaceable assembly and the right to move freely. This extended meaning of liberty is, in my judgment, inapplicable alike in the text as well as the context of the Indian Constitution. In America, therefore, application of Blackstone''s definition of personal liberty has been possible so as to include within the word ''liberty'' used in the 5th and the 14th Amendments of the American Constitution its secondary extensions and what liberty meant in common parlance and under Common law. A few illustrations from the American decisions are necessary to exemplify this essential difference between that Constitution and the Indian Constitution. The American constitutional cases have gone so far as to say that right to move freely although not specifically provided in the American Constitution is protected by "implied guarantees'''' and, therefore, comes within the 14th Amendment of the Constitution under the words ''liberty'' and "due process" used therein, as will be seen from the observations of the Supreme Court of America in Edward v. California (1941) 314 U. S. 160 : 86 Law Ed. 119. The following relevant observations at p. 128 in that case of Douglas J. will show how the Common law and Blackstonian concept of personal liberty were invoked to include the right to move freely in the American Constitution, by reason of the unqualified use of the word ''liberty'' in the 14th Amendment of the American Constitution as distinguished from the qualified expression "personal liberty" in the Indian Constitution:

Now it is apparent that this right (right to move) is not specifically granted by the Constitution.... In the latter case Mr. Justice Miller recognized that it is so protected by implied guarantees.... and C. J. Fuller in Williams v. Fears (1900) 179 U.S. 270, stated-undoubtedly the right of locomotion, the right to move from one place to another according to inclination is an attribute of personal liberty; the right ordinarily of free transit from or through the territory of any State is a right secured by the 14th Amendment and by other provisions of the Constitution.

How the American Supreme Court extends the original meaning of personal liberty as indicating freedom from arrest and trespass to the body, to bring within its notion different types of liberty as the right of individual to contract, to engage in any of the common occupation of life, to acquire useful knowledge, to marry, to establish a home and bring up children and to worship Govt according to the dictates of his conscience and generally to enjoy those privileges long recognised at Common L(sic)c as essential to the orderly pursuit of happiness by free men, including the right of parents to give children education suitable to the station in life is very well illustrated by the case of Meyer v. Nebraska (1922) 262 U.S. 309 and from the observations occurring therein at p. 1045:

While this Court has not attempted to define with exactness the liberty thus guaranteed (i.e., the liberty mentioned in 14th Amendment of the American Constitution) the term has received much consideration and some of the included things have been definitely stated. Without doubt it denotes not merely freedom from bodily restraint but also the right of individual to contract to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience and generally to enjoy those privileges long recognised at Common Law as essential to the orderly pursuit of happiness by free men.

It is clear from these observations how the notion of liberty is extensible in the American Constitution some of whose extended meanings, such as right to marry, could never be a constitutional right, in my judgment, under the Indian Constitution. That was only possible in America because of the use of the word ''liberty'' as distinguished from "personal liberty" and by invoking "implied guarantees" and the Common Law conception of liberty which was voiced by Blackstone. Indeed in the case of Grosjean v. American Press Company (1936) 297 U.S. 233, the American Supreme Court follows the same principle that the word ''liberty'' in the 14th Amendment does not mean only, the right of a person to be free from physical restraint but includes the right to be free in the enjoyment of all his faculties as well and thus lets in all the Common Law conception that the framers of the American Constitution inherited from their British ancestors. I find it difficult to import these considerations to the words and context of the Indian Constitution. Then again the American Supreme Court in Dejonge v. Oregon (1937) 299 U.S. 253, holds that freedom of speech and of the Press and the right of peaceable assembly are fundamental rights which are safeguarded by the due process clause of the 14th Amendment from infringement by State action and that Court comes to that conclusion although the first Amendment of the Federal Constitution expressly guarantees the right of peaceable assembly, the reason given by the American Supreme Court being that- explicit mention of the right to assemble in the first Amendment does not argue its exclusion from the 14th Amendment.

This reason is also not available in the context of the Indian Constitution because there is no similarity of word like ''liberty'' in Article 19(2) and Article 21 of the Indian Constitution as in the 5th and 14th Amendments of the American Constitution. If I have thought fit to give these illustrations from the decisions of the American. Supreme Court on this point, it is only with a view to show the danger of uncritical application of these principles to the Indian Constitution as one is likely to be tempted by the amplitude of the conception of liberty.

(5) In my view, in the interpretation of a constitution, founded upon a written organic instrument such as the Constitution of India, the principle is that if the text is explicit that text is conclusive alike in what it directs and what it forbids. When the text is ambiguous, as for example, the expression "personal "liberty" with its many ambiguous and doubtful connotations, recourse must be had to the context and scheme of a particular constitution. This principle is deducible from the observations of Lord Loreburn L.C. in the Privy Council in Attorney-General for the Province of Ontario v. Attorney-General for the Dominion of Canada (1912) A.C. 571, 583. On a construction of the expression "personal liberty" which is used in the text of Article 21 of the Indian Constitution and having regard to the fact that the qualifying word ''personal'' must limit the unqualified notion and import of liberty and having regard to the context in the Indian Constitution in which Article 21 is placed, I am of the opinion that the expression "personal liberty" in Article 21 of the Constitution, on a true and just interpretation, means "freedom "from arrest and trespass to the body". The text is "personal "liberty". Some meaning must be given to the qualifying word ''personal'' according to every canon of construction. A word should be given its natural and ordinary meaning. The word ''personal'' in its ordinary and natural acceptation means that which relates to the person in the sense to the body. Hence personal liberty of an individual is the liberty that relates to his person and means freedom from arrest and trespass to the body. The context of Article 21 and its juxtaposition also justify the same view. Article 20, which is the immediately preceding Article, relates to prosecution, conviction and punishment in respect of an offence, and Article 22 which is the immediately succeeding Article relates to arrest. Personal liberty coming in between these two Articles and in Article 21 should, therefore, be more appropriately understood in the sense of physical liberty as freedom from arrest and trespass to the body. This is the conclusion which I arrive at on a true and proper construction of Article 21 of the Constitution of India, as it stands in its language, and context independently of any reference whatever to the Report of the Drafting Committee of the Constituent Assembly which I have discussed elsewhere in this judgment. Each one of the Articles in the Constitution of India should be harmoniously construed and no interpretation, in my judgment, should be put upon Articles 19, 20, 21 and 22 as to create conflict or tautology or constructional double crossing.

(6) It has been argued that Article 21 of the Constitution only enjoins ''procedure'' as opposed to substantive law for which latter it is said that Article 19(1) and the various sub-clauses thereof are to be referred. I am unable to accede to that contention. My primary reason is that sub-clauses of Article 19 do not provide the source of legislative power and, therefore, are not to be referred to find the substantive law with respect to matters mentioned in Article 19(1). These sub-clauses are only restrictions on legislative power relating to matters enumerated in Article 19(1). The foundation and source of legislative power and substantive law are to be found in Arts. 245, 246 and 248, read with the three Legislative Lists, Union, State and Concurrent Lists. I will also endeavour to state my other reasons.

In that Draft Constitution, originally, the expression "due "process of law" was used. That expression "due process of law" occurs in the 5th and the 14th Amendments of the American Constitution. As the Report of the Drafting Committee shows the amendment from "due process of law" to "procedure "established by law" was made because the latter is "more "specific". The expression "procedure established by law" is borrowed from the "text or Article 31 of the Japanese Constitution approved by the Japanese Diet on October 7, 1946, and promulgated on November 3, 1946.

"Due process of law" is a legal conception hoary with antiquity and every form of gloss that antiquity always brings about. The historical antecedent of the phrase "due process of "law" can be traced back to the expression per legem terrae used in Magna Carta in 1215. Per legam terrae, however, denoted the law of the land according to Coke. But it was for the first time in 1355, during the reign of Edward III, that the modern phrase "due process of law" was used in Statute 28, Ed. III, chapter III, which was in these terms:

No man of what state or condition soever he be shall be put out of his lands or tenements nor taken nor imprisoned nor indicted nor put to death without he be brought in to answer by due process of law (par due process de loi).

The idea of "due process of law" migrated to America and the American Supreme Court in Hurtado v. California (1883) 110 U.S. 516, following its previous decision in Murray v. Hobohen, observed that this expression in the American Constitution conveyed the same meaning as the law of the land in Magna Carta. The "due "process of law" clause in the American Constitution soon developed into a magic formula which the American Supreme Court used to extend and amplify its jurisdiction over the legislature in a manner which varied far more capriciously than equity did with the foot of the Lord Chancellor of England. If equity was the Lord Chancellor''s conscience "due process" was the conscience of the American Supreme Court. In its first phase of interpretation, the American Supreme Court confined due process of law to matters of procedure only, but as time passed it soon brought within its ambit substantive law, as well as matters of jurisdiction. Palko v. Connecticut (1937) 302 U.S. 319 may be taken as a recent example of due process covering procedure and Osfborn v. Ozlin (1940) 310 U.S. 53 of substantive law and legislative jurisdiction and competence. The remarkable flexibility with which due process clause was applied by the Supreme Court of America to both procedure and substantive law has made many decisions of the American Supreme Court irreconcilable and the charge has been made on that account of judicial sophistry. The due process clause in the American Constitution has been utilised by the American Supreme Court as the greatest lever for social control of legislation in America by the judiciary and has led Huges C.J. to make the remark-

We are under a Constitution but the Constitution is what the judges say it is Having regard to this nebulous state of law that grew around the phrase "due process of law", the framers,of our Constitution tried to avoid the confusion of that expression and have used the words "procedure established by law".

In this context, it will be, therefore, most inappropriate, in my opinion, to say that in spite of the difference in expression between "due process of law" and "procedure established by law" they should mean the same thing and convey the same idea. Neither the language nor the intention of the Indian Constitution justifies such a conclusion. The expression "procedure established "by law" is not mere procedure of law as opposed to substantive law. The word ''procedure'' in Article 21 of the Constitution means the entire gamut of conduct by which to proceed and means both the fact and the manner of proceeding. (See Sir James Murray''s New Oxford Dictionary, Vol. 7, Part II, p. 1406.) It denotes the way of getting about to achieve an object and includes both form and substance and covers both adjective and substantive law. Such a procedure must according to the Constitution be established by law. Law means, in the Article, a valid and good law within the legislative authority and competence. It means that no person can be deprived either of life or personal liberty, except by legally established procedure as well as by valid law. But the great distinction between this law of our Constitution and the American due process of law is this that our Constitution does not import any idea of what is due or undue while considering both a lawful procedure and a valid law under Article 21 of the Constitution. The conclusion is that under Article 21 of the Indian Constitution and on a proper construction thereof all that the Court has to see is whether a lawful procedure has been followed and whether there is a valid law within legislative competence and power permitting deprivation either of life or of personal liberty but the Court cannot in my opinion under Article 21 of the Indian Constitution either consider or go into the question of the due or undue character or the reasonableness or unreasonableness of either the legal procedure or the substantive law. The Court can certainly go into the question as to whether there is (1) a procedure established by law and (2) a law within legislative competence and power under the Constitution. This means that both on matters of procedure and substantive law the Court will be justified in examining the legislative competence and authority. But once the Court comes to the conclusion that both the procedure and the substantive law are within the legislative competence and power there is an end of the matter and the Court cannot, in my opinion, go into the reasonableness of that law relating either to the procedure or to the substantive content. That, therefore, is the just interpretation of Article 21 of the Indian Constitution. ''Law'' as contemplated in Article 21 cannot be construed, in my view, to mean a kind of Jus Naturale which can invalidate any incompatible positive law, as in Roman Jurisprudence with Cicero and the Stoics (Friedman''s Legal Theory, pp. 24-25) because of the word "established" which connotes an agency more tangible than contemplated in the case of Jus Naturale.

The result is that in the case of deprivation of life or personal liberty the law providing for it is not justifiable by the Court on the ground of its reasonableness or unreasonableness while in the ease of rights of lesser import as mentioned in Article 19(2), the law imposing restrictions thereupon is justifiable under sub-clauses (3), (4), (5) and (6) of Article 19 on the ground of reasonableness and the question is, therefore, asked why should there be such an apparently unreasonable difference in the result and intention of the Constitution. The reason is clear and the answer is this. The Constitution has lifted the problem of life and personal liberty from the operation of the variable standard of judicial decisions and bottomed it on the bedrock of the very certain language of law as expressed by legislature which lays down, once for all, the act, condition or mode by which an individual shall forfeit such grave consideration as his life or liberty of his person. Law imposing restrictions on the exercise of the right of peaceable assembly without arms, of forming associations or unions, right to move freely throughout the territory of India and to reside and settle in any part of India, the right to practise any profession or to carry on any trade, occupation or business and the right to acquire, hold and dispose of property are made justifiable on the ground of reasonableness under sub-clauses (3) to (6) of Article 19 read with Sub-clause (2) thereof, because they are far less grave a consideration than life or personal liberty and as such can bide the judicial determination of reasonableness or unreasonableness. A man''s life or liberty of his person should be left in no uncertainty of reasonableness or unreasonableness. Life and personal liberty, therefore, are made to depend on law that is definite and certain so that a man knows what will deprive him of his life or personal liberty and when he is deprived of the one or the other he will not have to keep guessing and risking and remain in an oppressive state of dubiety as to what the judicial verdict on the fate of his life or personal liberty will be by the application of the variable yard stick of the notion of reasonableness. Here the Courts have nothing to define, nothing to delimit. The language is the language of the law of the legislature, clear, definite and specific and beyond doubt a guide to the courts to correlate legislative power with constitutional rights.

(7) This is so far as the construction of Article 19 and Article 21 of the Indian Constitution is concerned. There is yet another consideration on this aspect of the case. That is Article 22 of the Indian Constitution. It is a remarkable Article in many ways. It provides inter alia that the protective considerations contained in sub-clauses (1) and (2) of Article 22 shall not apply to any person who is arrested or detained under any law providing for preventive detention so that a person who is arrested or detained under any law providing for preventive detention is to be specially handicapped. Preventive detention in the Chapter on Fundamental Eights in a constitution is a paradox both in law and in fact. It is more a paradox because the subclauses in Article 22 dealing with preventive detention are the longest in the Charter of Eights granted to the citizens of India. Preventive detention as a normal and integral part of a constitution is unknown in any part of the world and is unparallelled in the annals of constitutional jurisprudence.

This Court is not concerned with the policy of the Constitution howsoever fundamentally it may disagree with it. To say that preventive detention dilutes and detracts liberty is to utter a truism. Liberty is the gift of the law and our porpose is to define the scope of that liberty which the people of India have thought fit to grant themselves and no more. The conception of liberty is not static but is always changing from time to time and is determined and conditioned by its relation to the time, place and circumstances. The Constitution is a fabric that is woven on the roaring looms of time. The content of liberty must be determined by the social dynamics of the time and of the place to which it relates. Its sanctity lies not on any paralysing abstraction nor on any lyrical ecstasies. The need for compromise and sobriety is nowhere so immediate and insistent as on our ideas of liberty which misguided will destroy all vestige of liberty. Liberty is the balance between an egoism too narrow to be endured and an altruism too broad to be attained. Liberty is always a calculus of divergent competing and sometimes antithetical loyalties and interests. Liberty, like property, requires chastening and has been taught that some of its traditionally cherished immunities are more relative than absolute. The old rival logics today are heard in Court one contending for authority, the other for liberty. In a world of compensations there is no liberty without restriction. Many an appeal to freedom is the masquerade of a particular brand of social or political or economic philosophy seeking to entrench itself behind the catchwords of the principle of liberty. It is essential for this Court, in the prevailing mental climate, not to surrender itself to a mere slogan in its justified devotion to freedom. The horizon of liberty is to be found within the vault of our Constitution and not within our own minds.

The plenitude of liberty, therefore, has to be determined not by our own conceptual felicity about it but has to be found within the four corners of the Constitution we have to interpret. What docs Article 22 provide? In sub-clauses. (1) and (2) of that Article, it says that no person who is arrested shall be detained in the custody without being informed, as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult and to be defended by legal practitioner of his choice. It also provides that such person shall be produced before the nearest magistrate within a period of 24 hours of his arrest and he shall not be detained in custody beyond the said period without the authority of the magistrate. These wholesome constitutional safeguards and protection, however, are unavailing to the person who is arrested or detained under any law provided for preventive detention. Sub-clause (3)(b) of Article 22 of the Constitution makes this provision clear. The Constitution, however, proceeds to provide that no law of preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board, consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. That means, in my opinion, that the Advisory Board can report that a person can be detained longer than a period of three months under a law providing for preventive detention.

But, even then, there is a maximum beyond which even the Advisory Board cannot report and that maximum is to be prescribed by Parliament. The other safeguard is that the authority making the order of detention shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford the person detained the earliest opportunity of making a representation against the order. But even here, it is said that the authority need not disclose such facts while giving the grounds of detention which the authority considers to be against the public interest to disclose.

These are severe and drastic restrictions on personal liberty. But it is to be remembered that they are solemn parts of the Constitution itself and are embodied in the very chapter devoted to Fundamental Rights guaranteed under the Constitution. Effect must have to be given to these provisions of the Constitution whatever our own personal views may be on the question. These provisions are as integral a part of the Constitution as any Fundamental Right under the Constitution. These deprivations of personal liberty form an organic parcel of the Constitution itself which the people have provided. It is not for this Court to seek the reason for it but to accept it and to carry out the mandate of the Constitution. May be there is very good reason for such deprivations of and restrictions on personal liberty which the present situation and the new-born Republic of India demand. May be they are chains which we have on the people and on their liberties. But that is a ground on which to speculate and to tread will be to overstep the functions of this Court.

Sub-clause (7) of Article 22 permits Parliament by law to prescribe the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion even of the Advisory Board. Parliament may also, by law, prescribe the maximum period for which any person may, in any class or classes of cases be detained under any law providing for preventive detention and the procedure to be followed by the Advisory Board in it enquiry. These are great limitations on the personal liberty of the citizens or of any person.

On the context of the Indian Constitution and having regard to the actual text of sub-clauses. (3), (4), (5), (6) and (7) of Article 22 of the Indian Constitution, I am of the opinion that the law providing for preventive detention stands independently and as a class by itself, not controlled, in any manner, by the provisions of Article 19 and its various sub-clauses. Preventive detention is a subject-matter provided in item (9) of the Union List and item (3) of the Concurrent List of the 7th Schedule to the Indian Constitution. It is, therefore, a matter over which, under Articles 245 and 246 of the Indian Constitution, the Indian Parliament has complete legislative competence and power. In my view, therefore, as long as a law providing for preventive detention is within the competence of the Indian Parliament, according to the enumeration made therein, for reasons connected with defence, foreign affairs or the security of India or a State or the maintenance of public order or the maintenance of supplies and services essential to the community and persons subjected to such detention and so long as such law for preventive detention complies with Sub-clauses (4), (5), (6) and (7) of Article 22 of the Constitution, it is not for this Court to consider further whether such law is reasonable or not, or whether such law imposes any reasonable or unreasonable restrictions on any of the rights specified under Article 19(2) of the Constitution. Indeed, in my judgment, the standard and limits of reasonableness according to the Constitution of India, so far as the Law of Preventive Detention is concerned, are contained in Sub-clauses (4), (5), (6) and (7) of Article 22 thereof and are to be regarded as a self-contained code in respect of preventive detention. Therefore, in the case of a law providing for preventive detention, this Court cannot, in my opinion, go into the question of reasonableness or otherwise of that law.

To make preventive detention justifiable by the Court on the ground of reasonableness is to misunderstand the very nature or essence of preventive detention which is detention without trial. Preventive detention is the legacy of the World War of 1914-18, as a reference to the case of King v. Halliday (1917) A.c. 260 will show and which was concerned with the Defence of the Realm Act, 1914, and Reg. 14(6) thereunder. It is no mere paradox that the home of personal liberty, that is England, would give birth to the concept of preventive detention-the very antithesis of personal liberty. The nature of preventive detention is determined by the nature of the dangers that preventive detention is intended to avoid. Preventive detention is not punitive but precautionary. No crime is charged and no trial by court is contemplated in the case of preventive detention. It is in its essence precaution against apprehended danger and may be regarded what in civil law is known as quia timet action. The basis of its insistence is not so much in the past as in the future. It has not received the status and stamp of a crime in the language of Criminal Jurisprudence but in its nature it assumes the spurious resemblance of an offence. Its notional idea of a mere punishment is more apparent than real and its attributes conform more to a new species of crime though in reality it retains the substance of a punishment in the sense of a social security measure. In the accustomed sphere of crimes, it is a rather unusual and unorthodox visitor. Its pretence to recognition has been clamorous in the presence of the needs of a modern state. It can no longer be kept out as an intruder on the domain of juristic thought. The legislature obviously proceeds on the footing that there are certain persons against whom no offence is proved nor any charge formulated but as regards whom it is expedient in the interest of security to make an order for detention as was pointed out by Lord Maugham in Liversidge v. Anderson (1942) A.C. 206, 219. In the troublous times of the war and in the chaotic post-war conditions, the scope of legal and permissible interference with personal liberty has been extended and restraints have been legalised by legislature which would not have been accepted as legitimate in normal times. That is the nature and origin of preventive detention. But the point to emphasise is this that preventive detention has come to form a emphasise is this that preventive detention has come to form a modern state in present day conditions.

It has been argued that instead of passing the Preventive Detention Act and if there was the threat to the security of India or State or to the maintenance of public order or to the maintenance of supplies and services essential to the community, there should have been a declaration of emergency under Article 352 of the Constitution which would have suspended the operation of Article 19 by reason of Articles 358 and 359. It is, therefore, said that Parliament has usurped emergency powers. I am entirely unable to accept this argument. The first obvious answer is that the reasons for passing a Preventive Detention Act under the Legislative Lists may or may not amount to such a situation as will justify a wholesale declaration of emergency. The second answer is that if there are available and lawful means of achieving the same ends, the choice of one means in preference to another is entirely at the discretion of the executive and the legislature. In my opinion, such choice cannot affect considerations of validity or invalidity of the statute under the Constitution. Lord Wright in the Privy Council in Eliezer Zebrovsky v. G.O.C. Palestine (1747) A.C. 246, 256, with reference to preventive detention observes:

This is serious interference with the liberty of the subject but it is not illegal so long as the detention conforms to the requirements of the statute or order on which it based. It has sometimes been said that the remedy of Habeas Corpus is suspended during these temporary and emergency laws. But that is not so. There is no occasion in such cases for suspension because as was pointed out in the House of Lords in Green''s case there is no illegality.

To the same effect is the observation of Lord Wrenbury in King v. Holiday (1917) A.C. 260, 308, at p. 308:

The Appellant is interned under an order made under the Regulation. He gays the result is that the Habeas Corpus Act is in substance suspended when it has not been suspended in fact. This is a complete misapprehension. If his case were that he had neither hostile origin nor associations he could have his writ of Habeas Corpus on the ground that that was so and if he established the fact he would be discharged. The application before tour Lordships is for a writ of Habeas Corpus and the ground advanced is that Reg. 14(6) is ultra virus. If that were established he would be discharged. The Habeas Corpus Act is in full force, but this statute and the Regulation made under it have provided a machinery for achieving in a way other than that of suspending the Habeas Corpus Act. The preventive detention of persons who are not alleged to have committed any offence but whom it is desired to prevent from committing one. The Regulation in my judgment is one within the authority given by the Act.

These observations apply with great force and appropriateness to the argument which has been made before us that Parliament, by passing the Preventive Detention Act, has virtually suspended the right of Habeas Corpus to enforce rights under Article 19 and, in so far as it has done it, it has usurped the powers more properly belonging to the stage after a declaration of the emergency. My opinion is, why not, if the Act is within the legislative competence and power as observed by both Lord Wright and Lord Wrenbury. To argue that the Preventive Detention Act, 1950, curbs or abridges the right to apply for Habeas Corpus and the power of the Court to exercise jurisdiction in respect of and grant such writ under the Constitution, is, in my opinion, begging the question. Such right or power in respect of Habeas Corpus must be subject to the prevailing laws of the country. Habeas Corpus is only a remedy which must be sought within the bounds of law.

The importance and significance of Article 13 of the Constitution must be clearly understood. Sub-clause (1) of that Article is concerned with the laws that were in force in India before the commencement of this Constitution and provides that in so far as they are inconsistent with the provisions of Part III of the Constitution relating to the fundamental rights, shall to the extent of such inconsistency be void. Sub-clause (2) of Article 13 affects the laws that are to be made after the Constitution and it provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall to the extent of the contravention be void.

Part III of the Indian Constitution relating to Fundamental Rights provides not only Article 19 but also Articles 21 and 22 so that all the Articles appearing in Part III from Article 14 to Article 34 are to be construed in a manner harmonious with one another and reconciliatory and not in a manner so as to create repugnancy or conflict between one Article and another, or to be mutually derogatory.

Sub-clause (2) of Article 13 does not import or introduce any new conception. In a written constitution, the Constitution is the supreme law of the land and all laws are subject to the constitutional limitation and no law can be made in contravention of any of the provisions of the Constitution, unless the Constitution itself so provides, For instance, Article 124 provides that there shall be a Supreme Court in India. Item 77 in the Union List gives Indian Parliament the power to make laws regarding the constitution, organisation, jurisdiction and powers of the Supreme Court. Although Article 124 is not included in the Fundamental Rights in Part III of the Constitution yet the Indian Parliament, by virtue of its legislative power under item 77 of the Union List, cannot make a law providing for the abolition of the Supreme Court of India and if it does make a law making such a provision that law will be void even though Article 13(2) of the Constitution cannot be invoked. That is the reason why Article 13(2) of the Constitution does not introduce any new principle and independently of that Article, the principle enunciated there is a necessary sequel to all written constitutions.

In my view, the law of preventive detention, as contained in Preventive Detention Act, 1950, either under Article 21 or under Article 22, cannot be said to be any law which "takes away" or "abridges" any right conferred by Part III. Article 21 and Article 22 are both under Part III and powers exercised under those Articles are to be construed not as taking away or abridging rights under any other Article. These Articles under Part III are not to be construed as conflicting Articles, each whittling down the others, but they should be interpreted in the light of and subject to all the different Articles mentioned in Part III read as a whole. In other words, Article 19 must not be construed in any way derogating from Article 21 or Article 22 nor must Arts. 21 and 22 be construed in any manner derogating from Article 19, so that if it is possible on a construction to specify different fields of operation to different Articles that is the construction to be adopted.

I cannot persuade myself, however, to accept the argument that the construction contended for by the applicants will mean that all imprisonment under any criminal offence would be ultra vires the Constitution because it will be a breach of sub-clauses. (2) to (6) of Article 19. It may or it may not be ultra vires. It may be that the Court will hold most or at any rate some of the laws to be reasonable and whatever laws the Court holds to be reasonable such laws will be held to be intra virus the Constitution. The problem, in my view, is to be determined on a proper interpretation of the Articles under Part III and the intention of the Constitution to be gathered from the language and context thereof and the doctrine of absurdity of consequence does not appear to me to conclude the matter.

On a survey of the authorities and principles of Constitutional Law and on an interpretation of the particular provisions of the Indian Constitution, my. opinion is that the answer to the first question referred to us is in the negative and this Court has no jurisdiction to hold an enactment of Parliament or State legislature providing for deprivation of personal liberty invalid on the particular ground that it imposes unreasonable restrictions in the interest of the general public or for the protection of the Schedule Tribe. In that view of the matter which I hold, I am also of the opinion that the case of Sunil Kumar Basu v. The Chief Secretary to the Government of West Bengal (1950) 64 C.W.N 394 is not correctly decided, in so far as it held that in such circumstances the Court declares such enactment invalid on the ground of unreasonableness and I, accordingly, answer the second point referred to the Full Bench in the negative.

The next argument is that the Preventive Detention Act is a delegation of legislative power by the Indian Parliament, not permissible under the Constitution. It has become almost a maxim of Constitutional Law that legislative power cannot be delegated by the legislature to other branches of the Government. But the maxim has so many apparent exceptions that it is difficult to decide whether the maxim or the exceptions state the true principle.

The rule against non-delegation of legislative powers does not forbid delegation of powers of Local Self-Government to municipalities or corporations who, by their numerous bye-laws, rules and regulations, do often legislate. Then again legislature may. (1) delegate the power to determine the conditions or contingencies under which the statute shall be operative, even though such conditions or contingencies may be the action of another State or Government, (2) delegate the power to make regulations as to Boards of Health, the heads of departments, etc., and (3) delegate the power to ascertain facts and to apply Rules of Law in controversy, i.e., to administer standards, as in the case of the Commerce Department, the Land Department, the Industrial Commissions, Public Utility Commission, Tax Commission and even, in the case of the President, in connection with the flexible provisions of the Tariff and the sale of alien property, as in America.

This rule against the delegation of legislative power is in fact wider than any doctrine of separation of powers. In so far as it forbids delegation of powers to other branches of the Government that certainly comes within the doctrine of separation of powers. But in so far as it forbids the delegation of powers to independent Boards or Commission, this rule has for its foundation the maxim Delegata Potestas Non Potest Delegari. The authority for this maxim is one of Coke''s dicta. Coke relied upon Bracton and commentators on the Decretals for his authority.

Some of the most recent and striking illustrations of the practice of delegation have occurred in the recovery legislation of President Franklin D. Roosevelt''s administration in America. While the power given to President Roosevelt might well have been held to come within the principle of prior decisions, the Supreme Court held unconstitutional Section 9(e) of the R.R.A. giving the President of America the power to prohibit the transportation in inter-State and foreign commerce of petroleum in excess of the amount permitted by a State because a delegation of legislative powers rather than the creation of power to administer a standard. Panama Refining Company v. Ryan (1934) 293 U.S. 388.

The rule, rather than exceptions to it, was stated in the Panama case and it was held that the executive must give a finding of the fact in his order when administering a standard to lay a basis for judicial review.

The general delegation of legislative power under the N.R.A. was held unconstitutional not only because Congress therein undertook to delegate a power which it did not possess but also because it was a violation of the doctrine of separation of powers to give to the President and a violation of the rule against the delegation of delegated power to give to private trade association the power not to administer standard but to make law.

If this decision is right, it is difficult to reconcile it with the flexible Tarriff decision in the case of Hampton Jr. v. U.S. (1928) 276 U.S. 394.

In Victorian Stevedorian General Constructing Co., Ltd. v. Dignam (1931) 46 C.L.R. 73, the Commonwealth Parliament of Australia delegated certain legislative power which the Court held to be valid. In Wishart v. Frazer (1941) 64 C.L.R. 470, Section 5 of the National Security Act, 1939, was challenged on the ground that, in terms, it delegated to the Governor-General the whole content of the defence power, subject to two exceptions. Rich A.C.J. Starke, Dixon, McTiernan and Williams JJ. held the section valid. Dixon, McTiernan and Williams JJ. expressly referred to the peculiar character of the defence power and the responsibilities of the executive in relation thereto as justifying so wide a delegation.

The Commonwealth Parliament of Australia, however, is not a depository of delegated powers. In the United States, the view is that, with respect to its powers, Congress is the delegate of the people and that the maxim delegatus non potest delegare applies. The Parliament of the Commonwealth on the other hand is not the delegate of the Australian people. The source of its authority is the Imperial Parliament. A colonial legislature is not a delegate of the Imperial Parliament to which the above maxim has application and a colonial legislature may, therefore, confer Legislative Power on other bodies nominated by itself. H.M. The Queen v. Burah (1878) 3. A.C. 889, Archibald G. Hodge v. The Queen (1883) 9. A.C. 117, Powel v. Appollo Candle Co., Ltd. (1885) 10 A.C. 282 and Baxter v. Ah Way (1909) 8 C.L.R. 626 and Kerr on the Law of Australian Constitution, 1925 Edn. p. 18.

The preamble to the Indian Constitution which proceeds in this manner: "We, the people of India,....do

"hereby adopt, enact and give to ourselves this Constitution" has the same language and similar rhyme as the preamble of the Constitution of the U. S. A. If these words make the different organs of the Constitution, the legislature, the executive and the judiciary the delegate of the Indian People then the principle of delegatus non potest delegare should apply to the interpretation of the Indian Constitution on a parity of reasoning adopted from the well-known decisions of the Supreme Court of America. But here again there is need for caution. In the American Constitution, there is no enumeration of legislative powers under three different lists as the Union List, the State List and the Concurrent List, as we have in our Constitution. The effect of the enumeration of these three different- Legislative Lists requires careful analysis. As the Judicial Committee pointed" out in the Madras Sales Tax Act case L.R. 72. IndAp 91, 102-3:

The Indian Constitution is unlike any other Constitution in that it contains what purports to be an exhaustive enumeration and division of Legislative Power between the Federal and Provincial legislatures. Where there is such an enumeration the language of one list must be coloured by that of the other and the problem is different where on the one hand there are specific and on the other residuary powers.

Although the Privy Council was then construing the Government of India Act, 1935, and not the Constitution of India, the reasoning is equally good today inasmuch as the Constitution of India has maintained the scheme of three different legislative lists. In this matter of having three legislative lists under the Constitution, we have apparently followed the example of Canada where by Section 91 of the British North America Act, a legislative list is provided for Parliament of Canada and another legislative list is provided by Section 92 of the same Act for the Provinces of Canada and a concurrent list is provided by Section 95 of the same Act.

If, therefore, on the doctrine of delegation, the Australian authorities are no guide under the Indian Constitution to say that delegation of legislative power is under all circumstances valid because of the difference noted above, it will be cogent to refer to the Canadian authorities. In the case of Hodge v. The Queen (1883) 9 A.C. 117, the Privy Council observes at p. 132:

If it is obvious that such an authority is ancillary to legislation and without it an attempt to provide for varying details and machinery to carry them out might come oppresive or absolutely fail. It was argued at the bar that the legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another or take the matter directly into own hands.

It has been held that the Ontario Legislature had power to entrust to a body or Commissioners authority to enact regulations in the nature of bye-laws and municipal regulations of a merely local character for the good government of Taverns and thereby even to create offence and annex penalties thereto in the manner purported to be done by the Ontario Liquor Licence Act. It has also been held in Canada that the provincial legislature can delegate to the Lt. Governor in Council the power to make rules, regulations and bye-laws ancillary to carry into operation the provisions of an Act. Cases have gone further to say that legislation by one legislative body by reference to the enactments of another legislative body is defensible on the same principle. A typical illustration and example of delegation and legislation by reference is contained in Section 308 of the Dominion Railway Act, 1888, of Canada which provides:

The Governor-General may at any time and from time to time by proclamation or proclamations confirm any or more of the Acts of the legislature of any province of Canada passed before the passing of this Act relating to any Railway which being Act of the Parliament of Canada has been declared to be a work for the general advantage of Canada and from and after the date of such proclamation the Act or Acts thereby declared to be confirmed shall be confirmed, ratified and made as valid and effectual as if the same has been enacted by the Parliament of Canada.

Delegation of legislative power could not be more complete than this.

In recent times, question of delegation, so far as India is concerned has been dealt with by the Federal Court of India, prior to the coming of the Constitution, as well as by the Priy Council when it had jurisdiction to hear appeals from India. In the case of Jatindra Nath Gupta v. The Province of Bihar, reported in 1949 (1949) 1 Union L.J. 274, the Federal Court had to consider the question whether the power to extend the operation of the Bihar Maintenance of Public Order Act beyond the period mentioned in the Act was prima facie legislative power. The Federal Court, by a majority, expressed the view that the power to extend the operation of the provincial Act beyond the period mentioned in the Act was a legislative power and accordingly delegation of such power being exercised by notification was held to be invalid. The majority judgment was to the effect that delegated legislation was ultra vires Section 92(1) of the Government of India Act, 1935. The learned Chief Justice of India Kania C.J. applying the principles laid down by the Judicial Committee of the Privy Council in The Queen v. Burah (supra) and Russel v. The Queen (1882) 7 A.C. 829 held, at p. 281 of the report, that the extension of the Act by notification was delegated legislation. The learned Chief Justice observed, "it is not and cannot be disputed that "delegated legislation will be ultra vires." Mukherjea J. at p. 300-1 observes:

Now it is one of the settled maxims of Constitutional law that the power conferred on the legislative authority to make laws cannot be delegated by it to any other body or department. The authority must remain where it is located and the power to which the prerogative has been entrusted cannot relieve itself from the responsibility by choosing other organs upon which it shall devolve. There are certain well-recognised exceptions, more apparent than real, which have been engrafted upon this maxim. Thus the legislation itself may be conditional and not absolute and its taking effect may be made to depend upon determination of facts and conditions by an outside authority. The legislature, it is true, cannot delegate its power to make law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. The inhibition against delegation does not also preclude the legislature from delegating any power not ligislative which it could itself rightfully exercise. Thus the legislature may authorise another to do something which does involve law-making as a matter of advantage or convenience, although if it so liked it could do that thing itself.

This particular observation of the learned Judge puts the law about delegation of legislative power lucidly and briefly and is based on Cooley''s Constitutional Limitations, 8th Edn., Vol. 1, p. 227. The Privy Council''s decision in Bonwarilal''s case L.R. 72 IndAp 57 is an authority for holding that the Governor-General, under the Government of India Act, 1935, cannot delegate his legislative power of making Ordinance to any other body but he can leave the local application of the provision of any statute or ordinance to be determined by the judgment of a local administrative body and if he does so that is not an example of delegated legislation but a case of permissible conditional legislation. The Privy Council in that followed the two decisions in R.v. Burah (supra) and Russel v. The Queen (supra).

The question of prohibition of delegation of legislative power requires re-enunciation today, in the light of the Constitution of India. It is clear that two different questions arise in this connection having regard to the authorities on the point. The first question, from the point of view of practical importance, is whether in fact a legislation is delegated legislation or a conditional legislation. Authorities are numerous on the point that conditional legislation is permissible and valid. Both the Federal Court of India and the Privy Council, as I have said above, are authorities on this point. But the more important question that arises under the Constitution of India is whether there is a complete ban on delegation of legislative power. It has been argued by the learned Advocate-General that under the Indian Constitution, Parliament can delegate its legislative power.

Whether legislative power can be re-delegated or not is, in my judgment, dependant on the terms of the original delegation which create the three different delegates of the sovereign people, the legislative, the executive and the judiciary. There is no inherent legal incompetence in delegation of legislative power. The terms of delegation are contained in the Constitution. The Constitution gives an exhaustive enumeration of the subjects on which the Union Parliament and the State legislature can legislate. Articles 245 and 248 of the Constitution provide for these legislative lists. Article 248 of the Constitution vests the residuary powers of legislation in Parliament in regard to any matter not enumerated in the Concurrent or the State List. Between Articles 245, 246 and 248 of the Constitution all legislative powers which the sovereign people had themselves had are thus granted and distributed in the manner specified therein so that no residue of legislative power is left in the people themselves. There is thus a complete divestiture of the people of their legislative power. In that view of the matter, Indian Parliament has supreme and sovereign legislative competence subject to such limitation which the Constitution itself has placed upon it. In the Constitution, there is no provision which provides a bar to the delegation of legislative power. The bar can only be provided by implying a prohibition in the Constitution of India by invoking the doctrine of the American Constitution which is forcefully put in Cooley''s Constitutional Limitations, 7th Eda., p. 163, in such terms as:

One of the settled maxims in the constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority there it must remain and by that constisutional agency alone the laws must be made until the Constitution itself is changed. ''The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agency uponwhich the power shall be devolved nor can it substitute judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.

In America, however, there is this signal fact that there is no residuary power of legislation in the American Congress which is only a Central Government with enumerated powers. The 10th Amendment of the American Constitution provides:

the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.

That would indicate that in the American Constitution there is residuary power left in the people or the States. There is no such residue or power left to the Indian People or to the Indian States under the Constitution of India. The question, therefore, remains whether by reason of Article 248 of the Indian Constitution, it can be said that the Indian Parliament can delegate its legislative power and that is the substance of the argument of the learned Advocate-General.

This question depends on a proper interpretation of Articles 245, 246 and 248 of the Constitution. Article 245 empowers Parliament to make laws for the whole or part of India, subject to the provisions of the Constitution, and grants similar power to the State legislature to make laws for the whole or part of the State. The division of powers between Parliament and the States is provided for in Article 246 and its various sub-clauses. Article 248 of the Constitution gives exclusive power to Parliament to make any law with respect to any matter not enumerated in the Concurrent or the State Lists. Can it make any law under this Article 248 saying that "Parliament delegates the power to make "law to the State or to any other department of the Government" by virtue of this residuary power of legislation? In my judgment that is not the correct constitutional position under the Indian Constitution. Article 248 on a proper construction means only this that on a subject which is not enumerated either in the Concurrent or in the State List, Parliament will have the exclusive power to make law. But it does not, in my view, mean that the power of law-making itself can be delegated under this Article. The reason why I hold that Parliament cannot divest itself of the responsibility to make law is that it is given the ''exclusive'' power to make the law and this power must be exercised by Parliament itself in every case, even though such a case is not enumerated in the Concurrent or the State List. But it cannot mean that although Parliament has the exclusive power it can nevertheless say by making a law providing for its own abdication of legislative power.

In other words, "any matter" in Article 248 of the Constitution does not mean the very power to make law which must be exercised by Parliament and Parliament alone.

In my opinion the principles of the cases decided in the Australian Supreme Court in Victorian Stevedoring and General Constructing Co., Ltd. v. Dignam (1931) 46 C.L.R. 73 and Wishart v. Frazer (1941) 64 C.L.R. 470, laying down that the Commonwealth Parliament of Australia may delegate legislative power, are, therefore, inapplicable under the Indian Constitution. American Constitutional Jurisprudence has applied really two standards to evolve the doctrine that legislative power cannot be delegated. One such standard is that the power of the government is considered to be derived from the authority of the people of America and, therefore, no agency to whom the people have confided the power may delegate its exercise on the well-known maxim of delegatus non potest delegare. But the other standard is the separation of powers, e.g., the legislative, the executive and the judiciary under the Constitution. While, therefore, the standard that the authority is reserved to the people of America on the basis of delegatus non potest delegare may not apply in its full implications to the Indian Constitution, having regard to the exhaustive enumeration of the legislative power of the three lists and having regard to the residuary power of Article 248 of such Constitution, which mark the difference between the Indian and American Constitution, the other standard of separation of powers certainly applies to the consideration raised under the Indian Constitution. As observed by the Privy Council both in R.V. Burah (supra) and In re The Initiative and Referendum Act (1919) A.C. 935 that a general power of legislation belonging to a legislature, constituted under a rigid constitution, does not enable it by any form of enactment to create and arm with genera legislative authority, a new legislative organ not created on authorised by the instrument by which it is established. In other words, the incapacity of the Indian Parliament to delegate its legislative power or to divest itself of the legislative power under the Constitution follows as a consequence of the separation of powers recognised under the Constitution of India, although is may not be the result of the American principle of nondelegation.

I hold, therefore, that under the Constitution of India, the Indian Parliament cannot delegate its legislative power to any other organ of the Government, either of the Union or of the States.

The problem in this connection is not so much the difficulty in deciding whether a legislature, under a rigid constitution, can delegate its legislative power but the difficulty always is in finding in every case whether in fact any particular Act amounts to delegation of legislative power. In this connection, as "Willis on Constitutional Law of America observes, the exceptions are so many that it is difficult to discern in a particular case what is the rule and what is the exception. I have already showed what the exceptions are and how numerous. In this case the problem is placed in this way. It is said that the Preventive Detention Act of 1950 of the Indian Parliament is a delegation of the legislative power by the Indian Parliament.

Preventive Detention Act is a temporary Act whose life is limited only to one year. It became law on February, 25, 1950, and will cease to have effect on April 1, 1951. Section 3 of the Act grants powers to the Central Government or the State Governments to make an order for the detention of a person if such Government is satisfied that the person is acting in any manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India or the security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community or in case of a foreigner under the Foreigners Act, 1946, with a view to regulate his continued presence or with a view to making arrangement for expulsion of a foreigner from India. The authority to be satisfied that it is necessary to make an order of detention is the Central Government or the State Government. This power to detain is, by Sub-section (2) of Section 3 of the Act, to be exercised by any district magistrate or subdivisional magistrate or in a presidency town, the commissioner of police. On this, it is argued that the Indian Parliament has not legislated on the subject of preventive detention but has delegated the power to do so to other authorities. The reason in support of this argument is that by virtue of this law the State Governments in their judgment, will determine what acts are prejudicial to (a) the security of the State or (b) the maintenance of public order or (c) the maintenance of supplies and services essential to the community and the power to determine what such acts are is left to the district magistrate or subdivisional magistrate or the commissioner of police. In other words, the Indian Parliament by this Preventive Detention Act, 1950, has delegated its legislative power and has left to the executive to determine what acts are prejudicial to security of State or maintenance of public order or maintenance of supplies and services essential to the community. The argument comes to this that the Indian Parliament should have given a list of what the acts are without leaving them vague.

The Indian Parliament derives its legislative power on the subject of preventive detention under Arts. 245 and 246 of the Constitution, read with item (9) of the Union List and item (3) of the Concurrent List in the 7th Schedule of the Constitution. Item (9) in the Union List provides:

Preventive detention for reasons connected with defence foreign affairs or the security of India ; person subject to such detention.

Item (3) of the Concurrent List provides:

Preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community; persons subject to such detention.

That the Indian Parliament can legislate on preventive detention under both these lists is beyond question. Whether mere enumeration of the subjects like "security of India", "security of State", "the maintenance of public order", "the "maintenance of supplies and services essential to the ''''community" is enough, is the problem raised. It specification of different acts as to what will constitute security of India or security of a State or the maintenance of public order or the maintenance of supplies and services essential to the community would have made the Preventive Detention Act valid, according to such argument and immune from the attack of the argument against delegation of legislative power then it is difficult to see why there is delegation if the whole and not part of the subject-matter is specified. The Indian Parliament could certainly have limited the ambit of the statute by defining or prescribing specific acts. But I do not see why instead of such limitation or specification, it could not leave it as wide as it has done by saying only security of State or the maintenance of public order or the maintenance of supplies and services essential to the community.

In my judgment, the Preventive Detention Act, 1950, does indicate the nature of the acts that are intended to be the ground of detention. Security of India or the security of a State or the maintenance of public order or the maintenance of supplies and services essential to the community are sufficiently clear notions and are sufficiently understood subjects. They are not unintelligible to people. I am, therefore, unable to say that because the Indian Parliament has not gone further to say what are the specified acts which are prejudicial to the security of India, or the security of a State or the maintenance of public order or the maintenance of supplies and services essential to the community, therefore it has delegated its legislative power.

What is sufficiency of standard to be stated in the text of legislation the non-compliance of which will amount to unconstitutional delegation of legislative power has been the subject of a number of judicial decisions in the American Supreme Court. Many of these American cases, however, proceed on the due process clause of the American Constitution and not on the ground of delegation. But there is at least one decision of the Supreme Court of America which also proceeds on the ground of delegation. U.S. v. L. Cohen Grocery Co. (1920) 255 U.S. 81 is an example relevant on the point. Section 4 of the Lever Act in America attempts to punish criminally any person who wilfully makes "any unjust or unreasonable rate of charge in "handling or dealing in or with any necessaries". That provision was challenged on the ground that the statute amounted to a delegation by Congress of legislative power to Courts and Juries to determine what acts are to be held criminal and punishable. White C.J. of the Supreme Court of America observes in that case that the sole enquiry is the certainty or uncertainty of the text in question and whether the text constituted fixing by Congress of an ascertainable standard of guilt adequate to inform persons accused of violation thereof and the nature and cause of the accusation against such persons and he further observes that the section forbids no specific or definite acts. At p. 520 the learned Chief Justice says:

In fact we see no reason to doubt the soundness of the observations of the court below in its opinion to the effect that to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms me rely penalised and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the Court and the Jury.... and again this condition would be additionally obvious if we stop to recur to the persistent efforts which the records disclose were made by administrative officers, doubtless inspired by a zealous effort to discharge their duty to establish a standard of their own to be used as a basis to render the section possible of execution.

Now in this case no standard whatever was provided in the Lever Act which is before the American Supreme Court not even such standard such as we have in the Preventive Detention Act, 1950, viz., the security of India, the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community. Four years later a similar question arose before the American Supreme Court in the case Edward P. Avent v. U.S. (1924) 266 U.S. 127. This case was concerned with the provision of Transportation Act, 1920, which authorises the Inter-State Commerce Commission whenever it is of opinion that shortage of equipment, congestion of traffic or other emergency requiring immediate action exists in any section of the country to suspend its rules as to car service and to make such reasonable rules with regard to it as in the Commission''s opinion will best promote the service in the interest of the public and the commerce of the people and also among other things to give direction for preference or priority in transportation of movement of the traffic.

Holmes J., delivering opinion of the Court, observes at p. 205: the requirement that the rule shall be reasonable and in the interest of the public and of commerce fixes the only standard that is practicable or needed and held in favour of the validity of the statute. If such vague words as in the interest of the public" and of the commerce were sufficient indication of what the statute required then the Preventive Detention Act, 1950, by this text gives very much more ascertainable standard. Two years later came the decision of Foster Cline v. Frink Dairy Co. (1926) 274 U.S. 445 in the American Supreme Court where a State Anti-Trust Law of Colorado denouncing conspiracy and combination of persons and corporations to create and carry out restrictions in trade and commerce, to increase or reduce the price of merchandise, to prevent competition, to fix standard of figures whereby the price shall be controlled or established was held to be so vague and uncertain in its description regarding what shall constitute a criminal offence as to be invalid under the due process clause of the American Constitution. Taft C.J. delivering the opinion of the Supreme Court, observes at p. 1153 that: the question whether given legislative enactments have been thus wanting in certainty has frequently been before this Court. In some of the cases the statutes involved were upheld ; in others declared invalid. The precise point of differentiation in some instances is not easy of statement. But it will be enough for the present purposes to say generally that the decisions of the Court upholding statutes as sufficiently certain rested upon the conclusion that they employed words or phrases having a technical or other special meaning well enough known to enable those within their reach to correctly apply them or a well-settled common law meaning notwithstanding an element of degree in the definition as to which estimates might differ or as broadly stated by learned C.J. White in U.S. v. L. Cohen Grocery Co. (supra) that for reasons found to result either from the text of the State involved or the subject with which that dealt a standard of some sort was afforded.

That, ill my opinion, presents the crux of the problem. The problem, therefore, is to find out whether the text of the statute or the subject with which it deals affords some "sort of a standard". In my view, such subject as the "security of India" or "security "of a State" or "the maintenance of public order" or "the "maintenance of supplies and services essential to the "community" do afford some tangible standard. In my judgment, these subjects enumerated in the Preventive Detention Act, 1950. although broad and wide in their implications are sufficiently clear to inform persons as to what is intended. The words may designedly be broad and wide because a variety of acts may come under maintenance of public order or maintenance of supplies and services essential to the community or security of State or security of India and it is neither practicable nor perhaps desirable that there should be any limitation or specification as to what acts alone should come under such descriptions. That may be left to the discretion of the authority applying the Act and ordering the detention and can, in my opinion, be left to the discretion of such authority. That such powers will be abused by the authorities is not a ground to declare the Act or statute unconstitutional so long as the statute is within the legal competence and legislative power of the Indian Parliament. There is the authority of Anderson v. Dunn W. Wheat (1906) 204 U.S. 242 to say that the possibility that power may be abused furnishes no argument against the existence of the power. Then again in the year 1932 the American Supreme Court had to decide a similar problem in New York Central Security Corporation v. U.S. (1932) 287 U. S. 12 and the Court there observes that there was no unconstitutional delegation of power by reason of uncertainty in the stated criterion in Section 5(2) of the Inter-State Commerce Act empowering the Inter-State Commerce Commission to authorise the acquisition or control of one carrier by another if the Commission is of the opinion that such an acquisition of Control will be "in the public interest." Hughes C.J. at p. 145 observes:

Appellant insists that the delegation of authority to the Commission is invalid because the stated criterion is uncertain. That criterion is the "public interest". It is a mistaken assumption that this is a mere general reference to public welfare without any standard to guide determinations. The purpose of the Act, the requirements it imposes and the context...and the term "public" interest as thus used is not a concept without ascertainable criterion" but has direct relation to transportation and its conditions and the economy and efficiency thereof.

What then are the principles deducible from the authorities? They are these. The Court holds that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application is a breach of due process of law as understood in the American Constitution. While it is very generally recognised that the Court may, in a proper case, declare a statute void and inoperative because of vagueness and indefiniteness, the principle is not always, formally at least, referred to any specific constitutional provision in the American Constitution. A proper deference to the legislative plans of the Government requires that such questions should be approached with cautious circumspection. The principle is that legislation, otherwise valid, will not be judicially declared null and void on the ground of mere insufficiency unless it is so imperfect and so deficient in its details as to render it impossible of execution and enforcement and so uncertain and as not to indicate the matter or thing to which it. relates or the purpose to be served. The Court does not hold a solemn legislative enactment of no force or effect because of its indefinite language unless the Court finds itself unable to find the statement of the purpose or intent of the legislature, it being always understood that the intention of the legislature being the essence of the law. An Act of the legislature creating a statutory offence should define the act necessary to constitute such offence with such certainty that a person may determine whether or not he has violated the law at the time when he does the act which is charged to be a violation of law. That test, in my opinion, is satisfied by the Preventive Detention Act, 1950. The Preventive Detention Act, 1950, is an example of minimum legislation and strictly construed within the limits and grounds mentioned in item (9) of the Union List and item (3) of the Concurrent List. It is what I call the sketch legislation and what Dr. Allen prefers to call as a ''skeleton'' legislation in his "Law and Orders" 1945 Edn., at p. 122. It is the type of marginal legislation which only indicates the periphery of legislative power where further deficiency in the outline would have made it succumb to the charge of delegation of legislative power but as it is, it being on the margin, escapes such criticism. Constitutionalists deplore the tendency of such marginal legislation but that regret must not be contused with the unconstitutionality of the statute. Legislation in general character is found in the many Paver and Harbour Acts passed by the American Congress and held valid as pointed out by Harlan J. in Union Bridge Co. v. U.S. (1906) 204 U. S. 364 and arises out of the necessities of the complex functions of a modern government.

As I have observed that this question under the American Constitution is usually governed by the due process clause, which is embodied in that Constitution both under the 14th and the 5th Amendments thereof, rather than by the constitutional principle which prohibits the delegation of legislative powers by the legislature. The U.S. Constitution, like the Constitution of India, contains no specific prohibition against the delegation of the legislative power but it is logically deduced that since both the Constitutions divide the Government into three distinct divisions it does not lie in the power of the Congress in the American Constitution and Indian Parliament under the Constitution of India to delegate legislative power to another governmental division. The source of the inhibition against the delegation of legislative power lies in the separation of powers. John Locke wrote in 1889 of the same principle in these terms:

The legislature cannot transfer the power of making laws to any other hands for it being delegated power from the people they who have it cannot pass it over in its extreme form to others.

Montesquieu, with the precise logic of his Trench mind, conceives separation of powers as a rigid dogma. While the executive, the legislative and the judicial powers of the government should be separate and distinct, it is nonetheless to be emphasised that the science of government is a practical one. Therefore, while each should formally maintain the essential powers belonging to it under the Constitution it should never be forgotten that these three co-ordinate parts constitute one brotherhood whose common trust requires a mutual toleration and harmony in the absence of which no government will be possible and anarchy and disorder will be the only result. That it has come to be recognised as an irresistible corollary of practical government will be apparent from such exceptions to the rule against delegation where legislature delegates to another department, board, commission or municipality or corporation or officer of the State Government or makes what has been described a conditional legislation and recognised as valid. The limit of the rule against delegation is, therefore, imposed by the impossibility of complete separation of governmental functions. The result is that the line of demarcation between legislative and administrative powers is not always easily discerned. While, therefore, an act which will amount to delegation of legislative power and, therefore, invalid has been held to be valid by the Courts on the ground of delegation of administrative functions or details of execution of the law. See the latest application of this test in Yakus v. U.S.A. (1943) 88 L. Ed. 834. As stated in a leading Pennsylvania case (Locke''s Appeal 72, p. 491):

Then the true distinction I conceive is this legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power and must, therefore, be a subject of enquiry and determination outside the halls of legislation.

The oft-quoted language of the Ohio Supreme Court, puts the law on the point even more clearly, the true distinction therefore is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.

This statement of the law was approved by Taft C.J. of the American Supreme Court in Hampton Junior v. U.S. (1928) 276 U.S. 394:

Where, therefore, the Act sufficiently indicates the legislative purpose and leaves the administrative details to some agency it is not subject to the objections that it delegates legislative powers. It is the nature of the power and subject rather than the manner in which it has been exercised or dealt with by the administrative officer or body which determines whether or not the delegation is legal. An act of the legislature which vests in an officer or an administrative or executive department of the Government the discretion to determine what the law itself is or to apply it to one and refuse its application to another in like circumstances that will be unwarranted delegation of legislative authority, and, therefore, unconstitutional and void.

The principle which prohibits the delegation of legislative power is, therefore, to be understood and applied with reference to the following limitations: (1) impossibility of complete separation of governmental functions under the doctrine of separation of powers, (2) delegation of power to determine facts of conditions on which the operation of the statute is contingent, (3) delegation of non-legislative or administrative functions or executive details, (4) sufficiency of a standard or policy laid down by the legislative enactment.

My own conclusion on this branch of the law is this. The legislature cannot delegate the choosing of policies nor the duty of formally enacting that policy into law but it may formulate its policy as broadly, and with as much or as little detail, as it considers proper and may delegate the duty of working out the details and the application of the, policy to the situation it was intended to meet. The rule against delegation of legislative powers must not be confounded with delegation of legislative functions. Delegation of legislative functions is permissible. The distinction between legislative function and legislative powers is often blurred by the general administrative milieu and overlapping of governmental functions but the distinction is real and failure to observe it will miss a very useful test by which to determine whether, in a particular case, there has been a delegation of powers or functions. I find support for my view in Cheadle''s Article on "the delegation of legislative functions" in 27 Yale Law Journal, 892, at p. 901 and the annotation in Panama Case in 79 Law Ed. at p. 489.

On a survey of the authorities and principles I, therefore, hold that the Preventive Detention Act, 1950, on its specific terms and language, does not amount to delegation of legislative power by the Indian Parliament to the authorities mentioned in Section 3 thereof.

The next argument for the applicants is that Sections 8 to 12 of the Preventive Detention Act, 1950. are ultra vires sub-clauses. (4) and (7) of Article 22 of the Constitution and that Section 14 of the Preventive Detention Act, 1950, is ultra vires Article 32 of the Constitution and, to the extent of such inconsistency with these Articles of the Constitution, the impugned sections of the Preventive Detention Act are said to be void under Article 13(2) of the Constitution.

A point has been made which I will dispose of as a preliminary point under this head and that is that the Preventive

Detention Act, 1950, has used the words "Central Government" and "the State" which words are said to be meaningless. I do not find any substance in ''that contention. The General Clauses Act, 1897, as adopted by the Adaptation of Laws Order, 1950, provides by Section 3(8)(b) thereof that the words "Central "Government" shall in relation to anything done or to be done after the commencement of the Constitution mean the President. Therefore, in my view, the words "Central "Government" in the Preventive Detention Act are not meaningless at all but mean the President under the General Clauses Act, after the Adaptation. The other point is that Parliament under item (3) of the Concurrent List could only make a Preventive Detention Act in relation to "a" State and not "the" State and not with respect to a number of States or all the States. I am unable to accept the contention. Again under the General Clauses Act and according to the well-settled rules of construction, the singular includes the plural and I do not think that the words "a" and "the" are such articles of grammar as make the statute meaningless.

Coming now to the different sections of the Preventive Detention Act, I find that Section 8 of the Act to be in perfect conformity with Sub-clause 4(a) of Article 22 of the Constitution and I hold the same to be intra vires the Constitution. Similarly, Section 9 of the statute, I hold to be justified by Sub-clause 7(c) read with Sub-clause (4) of Article 22 of the Constitution. Section 10 of the statute provides that the Advisory Board shall, after considering the materials placed before it and if necessary after calling for such further information from the Central or the State Government or from the person concerned as it may deem necessary, submit its report to the Government within 10 weeks from the date of detention under the detention order. I find nothing in this provision, which is contained in Sub-section (1) of Section 10 which contravenes any provisions in the Constitution. Sub-section (2) of Section 10 of the statute provides that the report of the Advisory Board shall specify, in a separate part thereof, the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. This Sub-section is challenged as ultra, vires Sub-clause 4(a) of Article 22 of the Constitution.

The point is raised in this way. Sub-clause 4(a) of Article 22 says that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board has reported, before the expiration of the said period of three months, that there is, in its opinion, sufficient cause for such detention. It is said that Sub-section (2) of Section 10 of the statute requires the report of the Advisory Board to specify whether or not there is sufficient cause for the detention of the person concerned. The argument is that the words "such detention" in Article 22(4)(a) mean detention for a period longer than three months whereas Section 10(2) of the Act uses only the words "the detention" which means the first period of three months of detention. I am unable to construe the words "the detention" in Section 10(2) of the Act in the sense urged by the applicants. It is quite true that the words "such "detention" in Article 22(4)(a) refer to "the detention" for "a "longer period than three months". According to just construction, the words "the detention" in Section 10(2) of the Act is also to be construed in the same sense as the words "such detention" under Article 22(4)(a). That seems to be the obvious intention and meaning because a period of six weeks is allowed to place the necessary papers before the Advisory Board u/s 9 of the Act and it will be meaningless to suggest when 6 weeks out of three months had already passed (i.e., more than half the period of three months) that the Advisory Board would report whether there is sufficient cause for the detention in respect of the first period of three months half of which period had already passed. Hence, the same meaning must be given to the words "such detention" in Article 22(4)(a) of the Constitution as to the words "the detention" in Section 10(2) of the Act. A statute must be construed in a manner which is consistent with the Constitution and not in a manner to create inconsistency with the Constitution and then say it is void against the Constitution. That is in my view, not a permissible method of interpretation of a statute law with reference to the Constitution. The principle is one of presumption in favour of the constitutionality of a statute. The decision of the American Supreme Court in the Sinking Fund cases (1878) 99 U. S. 700 is an authority on this point.

Nothing has been urged to suggest that Sub-section (3) of Section 10 is an infringement of any constitutional provision. Nor is the validity of Section 11 of the Act questioned by any arguments addressed to us.

Then comes Section 12 of the Preventive Detention Act. That section is challenged as ultra vires Sub-clause 7(a) of Article 22 of the Constitution. The argument is that under Sub-clause 7(a) of Article 22 of the Constitution, Parliament must prescribe not only (a) the circumstances under which but also (b) the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of the Advisory Board. It is said that by this test, Section 12 of the Act is defective because it provides "that person detained in any of the following classes "of cases or under any of the following circumstances". It is said that the word ''or'' makes it detective because in Sub-clause 7(a) of Article 22, the word is ''and''. It is argued that classes of cases and circumstances are each a different genus and must both be provided. I cannot persuade myself to accept that contention. My first reason is that Sub-clause (7)(a) of Article 22 is only an enabling clause giving the Parliament the power to legislate as the words "may by law prescribe" indicate. Therefore, the argument that Parliament must prescribe for both cannot, in my opinion, be sustained. I would read the word ''and'' in Sub-clause 7(a) of Article 22 as ''or'' if need be. But it need not be. That is my second reason. In my view, circumstances and classes of cases are such notions as may overlap and very often they do. In other words, the circumstance may itself be a determinant of the class or classes of cases. Section 12 of the Act provides for detention of person- with a view to preventing him from acting in any manner prejudicially to (a) the defence of India, relations of India with foreign power or the security of India or (b) the security of a state or the maintenance of public order.

In my judgment, these provisions give sufficient indication of the circumstances and the classes of cases mentioned in Sub-clause 7(a) of Article 22 and are in sufficient compliance with the constitutional provisions. Therefore, I hold Section 12 of the Act to be intra rirex the Constitution.

The next challenge is made against Section 14 of the Preventive Detention Act. The argument assails the validity of Section 14 of the Act on the ground that it puts a bar and a fetter on the Court preventing any statement to be made or any evidence to be given before the Court of the substance of any communications made u/s 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order and it prevents the Court from requiring any public officer to produce before it or to disclose the substance of any such communication or representation made of the proceedings of an Advisory Board or that part of the report of the Advisory Board which is confidential. It is argued that this bar cripples the right of the person under detention and he cannot effectively exercise his light to move the Supreme Court under Article 32 of the Constitution which is one of the guaranteed rights under the Constitution. If the grounds of detention cannot be examined by the Supreme Court under Article 32, then it is argued that it becomes impossible for all practical purposes to challenge the propriety of the order of detention on grounds of mala fides in case the applicant requires to show that the grounds on which he is detained are themselves mala fide. In other words, the applicant is deprived of using the materials from which he could show that his detention is mala fide.

The learned Advocate-General appearing for the Government has urged that this question must be determined with reference to the purpose for which the grounds can be asked. If the grounds are asked to be disclosed in order to show that the facts" stated in the grounds are wrong and inapplicable to the person under detention the disclosure of the grounds is unnecessary because the law provides under the Preventive Detention Act for the satisfaction of the Central Government or the State Government as the criterion and not the satisfaction of the Court. If again the allegation is that the grounds should be disclosed because they will show the mala fides, there again, according to the learned Advocate-General, the disclosure of the grounds is unnecessary because it is open to the applicant to show that the order of detention which can be exhibited in Court is mala fide for he has not done any act prejudicial to the security of India or a State or to the maintenance of public order or maintenance of supplies and services essential to the community. This last argument of the learned Advocate-General is only partially correct. For can it not be said that the actual grounds will show the mala fide character of the order by reason of their gross unreasonableness and inapplicability to the facts of a particular case. To that the answer of the learned Advocate-General is this that the Court can only look to such materials as the law makes available to the Court. He has illustrated this point by an example. Hearsay evidence, he says, is prohibited by the Indian Evidence Act and yet such evidence may in a particular ease throw more light on the truth of the facts involved in that case than the technically available evidence under the law. Could it be asked then that because the hearsay evidence is not permissible by the Law of Evidence the right of the person detained to prove mala fides of the order of detention is clearly cut down and abridged and, therefore, is an infringement of his fundamental right to move the Supreme Court under Article 32.

Unquestionably the restriction contained in Section 14 of the Act is a serious curtailment alike of the rights of the Court investigating and of the right of the detainee effectively moving the Court but here again the question has to be determined and the problem answered with reference to the legislative power and competence of the Indian Parliament. Preventive detention is within the legislative power of the Indian Parliament, both under the Union List as well as under the Concurrent List. In addition to that legislative power, Sub-clause (6) of Article 22 of the Constitution provides that the disclosure of grounds to the detained person enjoined by Sub-clause (5) thereof will not require the detaining authority to disclose facts which such authority considers to be against the public interest to disclose. Therefore, it is within the legislative competence of the Indian Parliament both by virtue of powers in the Union and the Concurrent lists as well as by virtue of Sub-clause (6) of Article 22 to say that the grounds of detention relate to certain facts whose disclosure is against public interest and enables it to withhold such facts. Therefore, grounds in Sub-clause (5) may not mean all the grounds having regard to Sub-clause (6) of Article 22 as otherwise grounds could not be correlated to facts in the manner done in Sub-clause (6). The idea of the restriction is that neither the person detained nor the Court is allowed to make a public disclosure of such facts. It is also specifically provided u/s 7(2) of the Act. If Parliament has the legislative power and competence to enact Section 14 of the Act regard being had to such constitutional limitation as may exist then according to the observation in Eliezer case (supra) to which I have already referred no further question can arise.

Section 14 of the Preventive Detention Act, 1950, is not so much a new heresay as it appears on first sight. It represents a prohibition of the use of certain materials as evidence in Court. It represents the same principle of prohibition as is to be found in Sections 123 and 124 of the Evidence Act, where there is the same familiar ring of "public interest". Evidence again is one of the items in the concurrent Legislative List and Parliament has the legislative power to enact any law regulating evidence. If it does so in its legislative power it cannot, in my opinion, be said that such law is bad because it cuts down or circumscribes the scope of Habeas Corpus. The only constitutional limitation on the legislative competence regarding evidence or disclosure of grounds is contained in Sub-clause (5) of Article 22 to the effect that the grounds must be communicated to the detainee subject to the qualification in Sub-clause (6) so that he can make a representation to the detaining authority and the detainee''s right of representation cannot be infringed.

It may incidentally be observed that Section 14 does not in terms either take away or abridge the right to move the Supreme Court under Article 32 of the Constitution. The right to move is there still. What has happened is that both the Court''s power and the applicant''s right, after the Supreme Court has been moved, to enforce disclosure of grounds is curtailed. It is a question affecting the jurisdiction of the Supreme Court to enforce discovery or the power of the Supreme Court to require disclosure of grounds or facts. But item 77 of the Union List clothes the Indian Parliament with competence and authority to make legislation affecting-jurisdiction and powers of the Supreme Court. Even if, therefore, Section 14 of the Act affects jurisdiction and powers of the Supreme Court, in enquiry under Article 32 of the Constitution, it cannot be said that the right to move the Supreme Court is taken away or abridged. No one regrets more than I do that the Indian Parliament has thought it tit to put such a bar and restriction as are contained in Section 14 of the Act but I restrain my feelings of regret while I construe and interpret the legislative power under the Indian Constitution. As I have said before, Habeas Corpus is a remedy which can only be applied within the limits laid down by valid law. and it will, in my opinion, be erroneous and inverted reasoning to say that the remedy must control the law.

As I am of the opinion that no section of the Preventive Detention Act is ultra vires the Constitution, questions of any partial invalidity of that statute and whether such invalidity is severable or not do not arise for determination.

The last contention on behalf of the detainees is that the orders of detention are bad because the satisfaction of the authorities is simulated and, therefore, technically mala fide.

The basis of this argument is founded upon certain dates. The Preventive Detention Act. 1950, was passed on Friday, February 25. 1950. and was published on Saturday, February 26, 1950. The satisfaction of the authorities in these cases was on the same day, i.e., February 20, and the service of the orders of detention was made on Sunday, February 27, 1950. It is, therefore, argued that the satisfaction of the authority being within 24 hours of the passing of the Act could not be genuine as there were about 400 cases to be considered.

This point is, in my opinion, already concluded by authorities. Article 166(1) of the Constitution says that all executive action of the government of a state shall be expressed to be taken in the name of the governor. In all these cases before us, the orders of detention are made in the name of the Governor. Then Article 166(2) provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the rules made by the Governor and the validity of an order or instrument which is so authenticated shall not be called into question on the ground that it is not an order made or executed by the Governor. In the present applications all these orders are authenticated by a Joint Secretary of the Government of West Bengal.

The fallacy of this contention is in the failure to appreciate that the authenticating officer need not be the person satisfied. There is no evidence before us to show who was the person who was satisfied and whether he was not sufficiently conversant with the facts of each case, or whether there were more persons than one who were asked to deal with these cases and to be satisfied.

The same point arose before the Privy Council while deciding Shibnath Banerjee''s case L.R. 72. I.A.241. Then the relevant law was contained in Section 59 of the Government of India Act. 1935, which I consider to be in ''''pari materia" with Article 166. Article 166 of the Constitution is almost a reproduction to tidemverbis of Section 59 of the Government of India Act. The Privy Council held that it was not necessary that the Governor should be personally satisfied and the matters could be dealt with by him in the normal manner in which the executive business of the Government was carried on under the Rules of Business. The orders in this case are ex facie regular. There is no evidence before us to show that the satisfaction of the authorities was not genuine and, therefore, mala fide. I, therefore, hold that the orders are valid and not bad on the ground of simulated satisfaction.

For reasons stated in my judgment I would, therefore, discharge the Rules and dismiss these applications.

Mitter, J. These are applications u/s 491 of the Code of Criminal Procedure or applications for writs in the nature of Habeas Corpus for the release of the Petitioners who are being detained in the Presidency Jail under orders made under the Preventive Detention Act, 1950 (Act IV of 1950).

Mr. Atul Gupta argues that the detention is illegal, because the law tinder which the Petitioners are detained is invalid. It is urged that the Preventive Detention Act is invalid on three main grounds:

(i) it places unreasonable restrictions on the right secured by Article 19(1)(d) and is, therefore, hit by Article 19(5); (ii) the enactment in question not being in accordance with powers under the Constitution is no legislation. It amounts to an attempt to delegate legislative functions to the executive;

(iii) Sections 11, 12 and 14 of the Act offend against Article 22(4)(a), Article 22(7)(a) and Article 32 respectively and are accordingly invalid.

It is urged that the invalidity of Sections 11, 12 and 14 condemn the entire enactment. It is contended lastly that even if the Act be held to be valid, the detention orders must be bad, as the circumstances under which they were made disclose that the officer concerned could not have been "satisfied" and that accordingly the orders were mala fide.

The difference of opinion which divided the Special Bench and which led to these cases being referred to us for decision was on the question whether or not the Preventive Detention Act, 1950, was justifiable on the ground of reasonableness. On this question, as indeed on all other questions raised before us, the parties have put forward conflicting contentions.

Mr. Gupta has developed his first point as follows: Article 20 creates offences and Article 21 ensures a fair trial. Articles 20 and 21 should, therefore, be read together. The latter Article means what it says, namely, that no person shall be deprived of his life or personal liberty except according to procedure established by law. As Article 21 deals with procedure only, so as to ensure a fair trial, it does not cover or include, and is not concerned with, preventive detention. The expression "except according to "procedure established by law" is more specific than the words "due process of law" which are to be found in the American Constitution. Article 21 being thus procedural only cannot by itself take away personal liberty. In any event, Articles 20, 21 and 22(7) and (2) being concerned with the constitutional rights of citizens charged with offences, Article 21 can have no application to Preventive Detention; and any law providing for such detention must conform to the limitations imposed under Article 19(5) and is, accordingly, justifiable on grounds of reasonableness. Preventive detention is not punitive but precautionary. It must not be mixed up with offences and trial of such offences provided for under Articles 20, 21 and 22(1) and (2). Restriction on the freedom of movement of a person is the essence of preventive detention. Any law which imposes restrictions on a citizen''s right under Article 19(1)(d) to move freely throughout the territory of India is justifiable under Article 19(5) which requires that the restrictions should be (a) reasonable, (b) either in the interests of the general public or for the protection of the interests of any scheduled tribe. Article 13(5) provides that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. Thus, preventive detention which admittedly takes away or abridges the right to move freely throughout the territory of India must be justifiable on the ground of reasonableness under Article 19(5). As to the real nature of preventive detention, reliance is placed upon Rex v. Halliday (1917) A.C. 260 and upon Liversidge v. Sir John Anderson (1942) A. C. 206. It is conceded that anything falling under Articles 20 to 22 is not justifiable on the ground of reasonableness. The provisious of Articles 20, 21 and 22(7) and (2) being concerned with specific constitutional rights of citizens charged with offences, they cannot affect the general right to freedom of movement guaranteed by Article 19(1)(d). Furthermore, although Articles 245 and 240 read with the relative Lists confer legislative power on Parliament, no provisions save those in Articles 352 and 358 can take away the rights conferred under Article 19. The Preventive Detention Act is peace-time legislation, and there is no provision except under Article 19(5) which can deprive a citizen of his constitutional right to freedom of movement under Article 19(1)(d). Article 19(5) applies both to restrictions on the exercise of the right to move freely and to complete deprivation or denial of such right. The above, I think, substantially represents Mr. Gupta''s contentions on the first point formulated.

The learned Advocate-General contends that the right to personal liberty which the Preventive Detention Act takes away is not one of the rights conferred by Article 19(i). Personal liberty, according to the Advocate-General, is protected by Article 21. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The procedure laid down in the Preventive Detention Act having been complied with, the detention of the Petitioners must be valid. His contention is that having regard to the language of Article 21, the law providing for preventive detention is not justifiable. In support of this branch of his argument, he has referred us to Article 31 which provides that no person shall be deprived of his property save by authority of law. Article 31 is under the head "Right to Property". He argues that although Article 19(1)(f) gives all citizens the right to acquire, hold and dispose of property subject to any law imposing reasonable restrictions'' on the exercise of such right, either in the interests of the general public or for the protection of the interests of any Scheduled Tribe, the law providing for deprivation of property is not justifiable on the ground of reasonableness. If that be so, it is contended, why should Article 21 be justifiable under Article 19(5)? He argues further that if the Court is entitled to consider the validity of any law providing for preventive detention, the enactment will be found to be intra vires the Constitution. As to this, he says firstly, that the legislative competence of Parliament under Articles 245 and 246 read with the relative Lists is undoubted, and secondly, that the enactment in question is within the limits laid down in Article 22(3)(b) to (7). That being so, the Preventive Detention Act is intra vires the Constitution. While a man is lawfully deprived of personal liberty, his right to move freely is in abeyance, and, therefore, there is in fact no conflict between Article 19(1)(d) and Article 21. In the absence of apt words in Article 21, any law, substantive or adjectival, which takes away personal liberty is not justifiable on the ground of reasonableness. The above, I think, substantially represents the contentions put forward on behalf of the State.

I now turn to the consideration of this all-important question, namely, whether the validity of the enactment can be questioned on the ground of reasonableness.

Both parties agree that in the construction of Article 21 the actual language used is the acid test. According to the language used, the Article, in my view, refers to procedural or adjectival law as distinct from substantive law. The phrase "procedure established by law" cannot be read to mean "reasonable procedure established by law"; but the word ''law'' here must naturally mean valid law. By reason of the language employed and the context in which they appear, Articles 20, 21 and 22 appear to be concerned with constitutional guarantees in any case where a person is in peril of his life or personal liberty. Article 21 should, for the same reason, apply alike to Article 20 and to Article 22. There is nothing in Article 21 to show-that its operation is confined only to Article 20 and to Article 22(1) and (2). Had the framers of the Constitution intended otherwise, apt words of limitation would have been used. The provisions contained in Clause (3) of Article 22 are an exception to the rights conferred by Clauses (1) and (2) thereof. Clause (3) of Article 22 reads as follows:

Nothing in Clauses (1) and (2) shall apply

(a) to any person who for the time being is an enemy alien ; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

Clauses (4) to (7) of Article 22 impose the limitations within which any law providing for preventive detention can be made. It would appear, therefore, that Article 21 must apply both to Article 20 and to Article 22.

By reason of the provisions of Articles 245 and 246, read with item (9) of List I and item (3) of List III, the legislative competence of Parliament to pass any law providing for preventive detention is undoubted, provided such law is in accordance with the terms laid down in items (9) and (3) alluded to above and is confined to the limits laid down in Clauses (4) to (7) of Article 22. There is no doubt that the Court is entitled to consider if such legislation is within the powers of the Constitution. While it is the province of the legislature to enact the laws, it is the obligation of the Courts to determine their validity. It is absurd to suggest that "procedure established by law" alone can deprive a man of his personal liberty. A valid law empowering the State to take away a man''s liberty and the following of a procedure established by law, in that behalf, must co-exist before a man can be deprived of his personal liberty. It is for the Courts to determine the validity of both the substantive law and the procedure to be followed. The enactment in question purports to provide both the substantive law under which, and the procedure according to which, a person can be detained. Consequently, it is our duty to consider if the statute is, in each respect, in accordance with the Constitution. If in any respect it is found to transgress the Constitution, it must to that extent be a nullity. It follows from what I have said above that Article 21 being procedural only cannot by itself take away personal liberty.

The next question to be determined is whether the enactment concerned is inconsistent with, or in derogation of, any of the fundamental rights. Clause (2) of Article 13 provides that the State shall not make any law which takes away or abridges the rights conferred by Part III of the Constitution and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Part III is headed "Fundamental Rights" which are of the following categories: (t) Bight to Equality. (ii) Right to Freedom.

(iii) Right against Exploitation.

(iv) Right to Freedom of Religion.

(v) Cultural and Educational Rights.

(vi) Right to Property.

(vii) Right to Constitutional Remedies.

Articles 19 to 22 come under the heading "Right to Freedom". Article 19 is concerned with the protection of certain rights secured to all citizens. Article 20 provides for the protection of certain rights of any person in respect of conviction for offences, while Article 21 is concerned with the protection of a person''s life or personal liberty. Clauses (1) and (2) of Article 22 provide for protection against arrest and detention of any person, in certain cases. Clause (3) of Article 22 provides for an exception to protection provided against arrest and detention. Clauses (4) to (7) of Article 22 set the limits of any law providing for preventive detention. It is thus seen that the rights secured and the protection afforded by Articles 20, 21 and 22 are as much a part of the fundamental rights as those guaranteed by Article 19. Article 19(1) reads as follows: All citizens shall have the right-

(a) to freedom of speech and expression ;

(6) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India ;

(e) to reside and settle in any part of the territory of India ; (f) to acquire, hold and dispose of property; and

(g) to practise any profession, or to carry on any occupation!, trade or business.

(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating 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.

By Clauses (3) to (6) the exercise of each one of the other rights under (b) to (g) is made subject to certain reasonable restrictions being imposed upon it. Clause (5) provides that nothing in Sub-clauses (d), (e) and (f) of Clause (7) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses, neither in the interests of the general public or for the protection of the interests of any scheduled tribe. Here, we are principally concerned with the right to move freely throughout the territory of India which is secured under Article 19(1)(d). It is clear that any law which imposes restrictions on the exercise of the right to move freely throughout the territory of India is by reason of Clause (5) justifiable on the ground of reasonableness.

The question which I must, however, consider is whether any law providing for preventive detention involving, as it does, personal liberty is justifiable in any court of law on the ground of reasonableness. I am conscious that a law of preventive detention may take a variety of forms-from deprivation of personal liberty to partial restrictions on freedom of movement. It is clear from the language of the relative Articles and the structure of Part III that the right to personal liberty is not one of the rights guaranteed under Article 19(7). That, as I have said before, is protected by Article 21. Personal liberty means persona freedom from imprisonment, arrest, physical restraint or other physical coercion, except in accordance with law. It is true that the right to personal liberty naturally involves the right to move freely, but the absence of a right to move freely throughout the territory of India is not incompatible with personal liberty What is guaranteed by Article 19(1)(d) is not a right to move freely, but a right to move freely throughout the territory of India. Had the right to personal liberty been included under Article 19(7), such right would not have been specifically protectee by Article 21, in which the word ''liberty'' has been qualified by the word ''personal'', no doubt to avoid any possible uncertainty as to the scope of either of the two Articles. The right to personal freedom is at all times subject to certain qualification; and restraints which the law may properly impose. One of such restraints may be to prevent the commission of a crime which if threatened. Personal freedom should be matched with social security, and the power to imprison or detain a man without trial, not for what he has done hut for what he might hereafter do, is itself One of the safeguards of freedom. Whatever might have been intended by the right to move freely throughout the territory of India, it appears that any law providing for preventive detention would, but for Arts. 21 and 22, come in conflict, with the exercise of such right and would, therefore, be justifiable under Article 19(5). As I have observed earlier, Articles 21 and 22 constitute a part of the structure of fundamental rights, and, therefore, although any law providing for preventive detention will affect the right to free movement, the same cannot be said to be in real conflict with any of the rights secured under Article 19. It cannot be disputed that preventive detention has for its object the prevention of crimes against the State. While the form or the character of the detention may vary, the object is always the same. The question nevertheless is as to how to give effect to both the provisions of the Constitution without that repugnancy which is forbidden. In this task, the Courts bring in aid certain well-known principles of construction. The Constitution must be regarded in its entirety, and, if possible, effect should be given to all its provisions. The Court must so construe a Constitution as to avoid, if possible, conflict between its different provisions. If the real object of preventive detention be the prevention, in certain defined circumstances, of crimes against the State, the relative provisions of the Constitution providing for such detention would not be open to attack, because incidentally the right to movement is affected. In a case such as this, where two provisions of the Constitution uppear at first sight to be repugnant to each other, the rule of construction to be followed is what is known as the "pith and ''substance" rule. The pith and substance of the enactment concerned deals directly with personal liberty, and only incidentally or indirectly with any of the rights enumerated in Article 19. In view of the express provisions in the Constitution mpowering Parliament to make laws of preventive detention within well-defined limits, it cannot be said that any such law seeks to do indirectly what it is prohibited from doing directly. No other written Constitution appears to have provided for a law of preventive detention. In the words of Lord Lorebum. C, in the interpretation of a completely self-governing Constitution founded upon a written organic instrument, if the ext is explicit the text is conclusive, alike in what it directs and what it forbids. That being so, how can the scope of preventive etention be further limited by reason of the fact that acidentally it affects some other provision of the Constitution?

As to the extent to which, in the interpretation of our Constitution, the power of the Courts can be exercised, the following observations of Stone. J. in United States v. Butler (1945) 297 U.S. 1, are instructive:

The power of Courts to declare statutes unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that Courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the Government is subject to judicial restraint, the only restraint upon our own exercise of power is our own self-restraint. For the removal of unwise laws from the statute books, appeal lies not to the Courts but to the Ballot and the processes of democratic Government.

In the Republic of India there is no such thing as the supremacy of Parliament. What is supreme is the Constitution of India, and it is the duty of the Courts to enforce its provisions. The Judiciary itself can only function within the powers conferred by the Constitution.

So far as Articles 20, 21 and 22 are concerned, there is nothing either in the language employed or in the context in which they appear to suggest that any law providing for preventive detention, or indeed any other law which affects life or personal liberty, is justifiable on the ground of reasonableness. Turning to the rights guaranteed under Article 19(2), it would appear that the right to freedom of speech and expression is restricted by Clause (2) of Article 19. The language of Clause (2) makes it beyond doubt that in respect of the matters mentioned there, Parliament is the supreme authority. No one has suggested that any law relating to libel, slander, defamation or contempt of court can be questioned in a court of law on the ground of reasonableness. This clause sets the limits within which the State may interfere with the right to freedom of speech and expression. If the limits are transcended, the Courts would undoubtedly interfere, not on the ground of unreasonableness, but on the ground that the legislation in question is void as being inconsistent with, or in derogation of, the rights conferred under Part III. If and when personal liberty is taken away OF abridged, the right to freedom of speech and expression would inevitably be restricted; but that circumstance would not entith a court to pronounce upon the validity of the law which takes away or abridges personal liberty on the ground that it is ir conflict with the right to freedom of speech and expression. It we take the right to practise any profession or to carry on any occupation, trade or business, we find that the only restrictions that can be placed on that right are given in Clause (6) of Article 19 Clause (6) speaks of reasonable restrictions on the exercise of the right to practise any profession, etc. If, however, a professiona. man is imprisoned or detained and is thus deprived of his right to practise his profession, can it be said that his imprisonmem or detention is illegal on the ground of the denial of one of his fundamental rights under Article 19(1)(g)? It seems clear to me that the right to personal liberty is not one of the rights conferred under Article 19(2). of the seven rights conferred under Article 19(1), two, namely, the right to move freely, and the right to reside and settle, are coupled with the words "throughout the territory of India" and "in any part of the territory of India" respectively. There is hardly any doubt that had the right under Article 19(1)(d) been stated to be merely to move freely, any restraint on personal liberty would have taken away that right completely. It would appear from the addition of the words "throughout the territory "of India" that what was intended to be conferred by Article 19(1)(d) was freedom of movement from one State to another. The framers of the Constitution may have intended to safeguard against possible inter-State restriction of movements. This view appears to be confirmed by the introduction of the words "in any part of the territory of India" with reference to the right to reside and settle. The structure of the Constitution is Federal, although for obvious reasons the residuary powers of legislation are with Parliament. It is to be observed that the same words "throughout the territory of India" and words to the same effect are used in connection with trade, commerce and intercourse under Part XIII of the Constitution. Article 301 provides that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. Article 302 provides that Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest. Article 303 is concerned with restrictions on the legislative powers of the Union and of the States to prefer one State to another, or to discriminate between one State and another, in the matter of trade and commerce. Article 304 provides that notwithstanding anything in Article 301 and Article 303 contained, the legislature of a State may, with the previous sanction of the President, impose such reasonable restrictions on trade, commerce and intercourse among States as may be required in the public interest. These provisions, including the proviso to Article 304 which requires the previous sanction of the President, would suggest that the framers of the Constitution intended to guard against inter-State restrictions on trade or commerce which the State might be minded to impose. In the same way, in view of the provincialism which the people of India had to contend with, the framers of the Constitution may well have intended that every citizen of India should have the right to move freely from one State to another and to reside and settle in any part of India, irrespective of whether he was a Bengali or a Bilrari or an Assamese. This interpretation of the rights secured under Clauses (d) and (e) of Article 19(7) appears to me to afford an explanation for the introduction of the words "throughout the territory of "India" in the one case and "in any part of the territory of "India" in the other.

The learned Advocate-General has referred us to Article 31 which provides that no person shall be deprived of his property save by authority of law. Article 31 is under the head "Right "to Property". He argues that although Article 19(7)(f) gives all citizens the right to acquire, hold and dispose of property, subject to any law imposing reasonable restrictions on the exercise of such right either in the interests of the general public or for the protection of the interests of any scheduled tribe, the law providing for deprivation of property is not justifiable on the ground of reasonableness. I entirely agree with this contention and hold that although compulsory acquisition of property by the State militates against the right secured under Article 19(1)(f), no law providing for acquisition of property under Article 31 is justifiable on the ground of reasonableness. By reason of its context and the language employed, Article 31 is clearly not justifiable on the ground of reasonableness. If that be so, it is not understood why Article 21 should be justifiable under Article 19(5).

The learned Advocate-General characterised the rights conferred under Article 19(7) as rights of free men. As to this, it is contended on behalf of the detenus that a person whose liberty has been taken away by imprisonment or detention may yet acquire, hold and dispose of property. Whether that is so or not depends upon what is involved in that right. Certain it is that a person whose liberty has been taken away is deprived of the enjoyment of his property. I do not think it is necessary to consider this aspect of the case further. In any view of the matter, the rights under Article 19(7) must be subject to the other provisions under Part III.

In referring these cases to us the learned referring Court formulated the following points for our decision, namely-

(1) Whether a Court has jurisdiction to hold that an enactment of the Central Parliament or a State legislature providing for deprivation of personal liberty is invalid if the enactment does, in the opinion of the Court, impose restrictions which are unreasonable in the interests of the general public or for the protection of the interests of a scheduled tribe,

(2) In the case of Sunil Kumar Basu v. The Chief Secretary to the Government of West Bengal (1950) 64 C. W. N. 394 correctly decided in so far as it held that in such circumstances the Court could declare an enactment invalid?

In view of the long and exhaustive judgments delivered by my learned brothers, it is not necessary that I should deal with the respective contentions of the parties in further detail.

I think I have sufficiently dealt with the main arguments of the parties on the questions formulated to enable me to answer them. My answer to both questions is in the negative.

As to the question of delegation and as to whether Sections 10, 11 and 12 of the Preventive Detention Act, 1950 contravene the provisions of the Constitution, I am in agreement with the views just expressed by my learned brothers Sinha and Mukharji JJ. I am, however, of the opinion that Section 14 of the Act is ultra vires Article 32 of the Constitution. As my brother Sinha J. has exhaustively dealt with this topic and I concur both with his views and the reasons therefor, a separate treatment of the point by me is unnecessary. The invalidity of Section 14 does not, how-ever, affect the rest of the enactment, which, by Clause (2) of Article 13, is void only to the extent of the contravention.

In the result, these applications stand dismissed and the Rules are discharged.

The order of the Court is that both the questions referred to the Full Bench are answered in the negative.

The applications before us are dismissed and the Rules are discharged.

A certificate under Article 132(2) of the Constitution is granted.

A certificate is granted to the State under Article 132(2) of the Constitution.