P. Kasinathan and Others vs Chief Secretary to Govt. of Madras and Another

Anantanarayanan, J.

(1) This group of writ petitions under Art. 226 of the Constitution for the issue of writs of Habeas Corpus in the concerned cases, raises questions

of the constitutional propriety, legality and good faith of the relevant detention orders made by Government against the writ petitioners (detenus)

which are of considerable interest and significance. We might immediately state that, in all the cases, the orders of detention purport to have been

issued under Rule 30(1)(b) and Rule 30(4) of the Defence of India Rules 1962: in all of them, the Government of Madras state to be satisfied that

the detention of the concerned detenue was necessary, in their view, to prevent him ""from acting in any manner prejudicial to the defence of India

and public safety"".

7

(2) Before proceeding to a scrutiny of the grounds upon which the orders of detention have been challenged, we might briefly state that Sri M. K.

Nambiar has addressed arguments to us challenging the validity of R. 30(4) in the context of S. 3(2)(13) of the Defence of India Act, on grounds

of abdication of legislative function or the Vice of excessive delegation. Sri. M. R. Venkataraman, detenu, has addressed arguments in person on

alleged grounds of mala fides or the colourable exercise, of power with regard to the orders of detention, also assailing those orders upon relate

grounds, such as the detention of the writ petitioners in prison against the spirit and purport of the delegated power, restrictions imposed in

violation of S.44 of the Defence of India Act, the illegality of the subsequent orders of review made without an opportunity given to the detenus to

show cause against the continuance of the detention, the service of detention orders in some cases on persons already in jail custody, contrary to

laws etc. Sri. V. G. Rao, for certain of the detenus, has also advanced arguments upon subsidiary grounds, and on the facts of some of the

individual instances.

(3) At the very outset, it is essential to elucidate, with care and precision, the ambit of the power of this court to interfere with such orders of

detention under Art. 226 of the Constitution, in the context of the Emergency now prevailing under Art. 352, and the Presidential Orders

suspending the enforcement of certain Fundamental Rights, by virtue of Arts. 358 and 359. We might immediately add that this matter has received

elaborate exposition in four recent decisions of the Supreme Court, namely, (1) Makhan Singh Vs. State of Punjab (and connected appeals), ; K.

Anandan Nambiar and Another Vs. Chief Secretary, Government of Madras and Others, A.K. Gopalan Vs. The Government of India, and(4) Dr.

Ram Manohar Lohia Vs. State of Bihar and Others, . The text of the Proclamation of the President will be found in Basu''s Commentary on the

Constitution of India, 4th Edn, Volume V page 194, and is as follows:

In exercise of the powers conferred by the clause (1) of Art. 359 of the Constitution, the president hereby declares that the right of any person to

move any court for the enforcement of the right conferred by Art. 14, Article 21 and Art. 22 of the Constitution shall remain suspended for the

period during which the Proclamation of Emergency issued under clause (1) of Art. 352 thereof on 26th October 1962 is in force, if such person

has been deprived of any such rights under the Defence of India Ordinance 1962(4 of 1962) or any rule or order made thereunder.

(4) It is not disputed that the ambit of the power of this court to interfere with an order of detention made under S. 3(1) and Section 3(2)(15)(i) of

the Defence of India Act, read with Rule 30(1)(b) and Rule 30(4) of the Rules made under the Act, in the context of the above Proclamation, has

been fully considered by their Lordships of the Supreme Court in Makhan Singh Vs. State of Punjab (and connected appeals), , For this reason, a

terse statement of the position, as evident in the judgment will be necessary. After setting forth the text of S. 3(1) and S. 3(2)(15)(i) of the Defence

of India Act, the Supreme Court proceeded to discuss the grounds open to citizens to challenge the legality or the propriety of a detention either

under S. 491(1)(b) Crl. P.C. or under Art, 226 of the Constitution. The following passages, which are brief and essential excerpts from this

judgment, outline the entire situation:

Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the

detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened such a plea is outside

Art. 359(1) and right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order. Take also a case where

the detenu moves the court for a writ of Habeas Corpus on the ground that his detention had been ordered mala fide. It is hardly necessary to

emphasise that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully

challenged. It is true that a mere allegation that the detention is mala fides would not be enough; the detenu will have to prove the mala fides. But if

the mala fides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by Art. 359(1) and the

Presidential Order. There is yet another ground on which the validity of the tension may be open to challenge. If a detenu contends that the

operative provision of the law under which he is detained suffers from the vice of excessive delegation and is, therefore, invalid, the plea thus raised

by the detenu cannot at the threshold be said to be barred by the Presidential Order. In terms, it is not a plea which is relatable to the fundamental

rights specified in the said Order. It is a plea which is independent of the said rights and its validity must be examined............................... In the

present case, on has merely to read S. 3(1) and the detailed provisions contained in the several clauses of S. 3(2) to be satisfied that the attack

against the validity of the said section on the ground of excessive delegation is patently unsustainable. Not only is the legislative policy broadly

indicated in the preamble to the Act, but the relevant provisions of the impugned section itself give such detailed and specific guidance to the rule-

making authority, that it would be idle to contend that the Act had delegated essentially legislative function to the rule-making authority. In our

opinion, therefore, the contention that S. 3(2)(15)(1) of the Act suffers from the vice of excessive delegation must be rejected"".

Upon this particular extract, we may observe that the argument repelled by the Supreme Court in this context, is different from the attack which

has been put forward by Sri Nambiar on the vice of excessive delegation. As a careful perusal of the judgment will show, what was argued was

that the apprehension and detention itself, by the authorities of the Executive, were illegal, because of an abdication of legislative function, or

excessive delegation. What is now argued is that the detention of such persons in jail, subject to the terms and conditions imposed by the State

Government, contravenes the law, as S. 3(2)(15)(I) refers merely to the apprehension and detention in custody of any person, and not to the

terms, conditions or place of such detention.

If we had held that the impugned provision in the Act suffered from the vice of excessive delegation, it would have become necessary to consider

what the effect of that conclusion would have been on the merits of the controversy between the parties.... the question would have arisen whether

in challenging the validity of the order of detention passed against him the detenu is enforcing his fundamental right under Art, 21 of the

Constitution, Art. 21 is one of the articles specified in the Presidential Order and if at any stage of the proceedings, the detenu seeks to enforce his

rights under the said Article, that would be barred............ We do not propose to express any opinion on this question in these appeals. Since we

have held that the Act does not suffer from the vice of excessive to pursue the enquiry as to whether if the challenge had been upheld, the detenu

would have been precluded from urging the said invalidity in support of this plea that his detention was illegal"".

(5) A word is now necessary concerning the other three decisions of the Supreme Court that we have earlier specified. In K. Anandan Nambiar

and Another Vs. Chief Secretary, Government of Madras and Others, persons situated precisely like the present writ petitioners, and detained

under identical orders of detention by the Government of Madras, moved the Supreme Court assailing the orders. The judgment traverses grounds

relating to the validity of Rule 30(1)(b) of the Rules, the privileges of Members of Parliament, and related aspects which do not immediately

concern us. But the aspect of mala fides was also adverted to, and it was claimed that the Chief Minister of Madras made the orders in question,

without satisfying himself concerning their justification. Certain statements of the Union Home Minister in Parliament were relied upon, as

supporting this argument, and they have been extracted in the judgment. An affidavit by the Chief Minister of Madras and another by the Chief

Secretary to the Government of Madras were filed, & extracts from both appear in the judgment. The Supreme Court finally held that there was

no justification for the assumption that the detentions were ordered by the Chief Minister of Madras without proper subjective satisfaction. Their

Lordships also expressed that there was no substance in the grievance that the impugned orders were made mala fide; in result, the writ petitions

were dismissed. In A.K. Gopalan Vs. The Government of India, , issue of mala fides were also raised, and certain of the pleas, such as, the

simultaneous issue of a number of orders of detention on the same date, as indicative of an absence of a proper subjective satisfaction, are

applicable to the present proceedings also. Finally, the contentions of illegality and mala fides were rejected, and the petitions were dismissed. In

Dr. Ram Manohar Lohia Vs. State of Bihar and Others, the order of detention was held to be illegal, and the true ground therefore appears in a

brief report of the case made available to us by the learned Public Prosecutor(Supreme Court Notes, 1965) as well as in some extracts from the

judgments placed before us; what was held was that the actual order of detention in the case was not in terms of the Rule(Rule 30(1)(b),and was

hence invalid, Hidayatullah J. observed:

When the liberty of the citizen is put within the reach of authority and the scrutiny from courts is barred, the action must comply not only with the

substantive requirements of the law, but also with those forms which alone can indicate that the substance has been complied with"".

We propose, first, to examine the entire legal argument of the attack upon Rule 30(4), either because of the vice of excessive delegation or the

alleged abdication of the legislative function, and the related arguments of the ultra vires character of the orders of detention, because they were

passed en masse, in order to put into custody the active members of an opposition political group(Members of the Left-wing Communist Party),

the illegality of the detention of such persons in jail, and defects or illegalities in the actual orders vitiating them or the service of such orders on

persons already in custody; this group of arguments might be termed the arguments at law. The arguments on issues of fact, particularly, mala fides,

are separate and conveniently admit of separate treatment. Finally, we have the canvassing of the facts in certain individual cases, which are

peculiar to those cases.

(6) The Defence of India Act, 1962, set forth, in its preamble, that it was found necessary ""to provide for special measures to ensure the public

safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected there with. Sec 3(1) of the

Act states that the Central Government may make such rules ""as appear to it necessary or expedient for securing the defence of India and civil

defence, the public safety, the maintenance of public order or the efficient conduct of military operations.............."" According to S. 3(2) of the Act.

Without prejudice to the generality of the powers conferred by sub-section(1), the rules may provide for, and may empower any authority to

make orders providing for, all or any of the following matters.........................."" Section 3(2)(15)(i) runs:

Notwithstanding anything in any other law for the time being in force"" (the rules may provide for) ""the apprehension and detention in custody of

any person whom the authority empowered by the rules to apprehend or detain.....................suspects, on grounds appearing to that authority to

be reasonable, of being of hostile origin or having acted, acting, being about to act or being likely to act in a manner prejudicial to the defence of

India and civil defence, the security of the State, the public safety or interest, the maintenance of the public order, India''s relations with foreign

States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations...................

While on the Act itself, we might also glance at Section 44, which states that the authority or person acting in pursuance of the Act ""shall interfere

with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and

interest and the defence of India and civil defence"". u/s 45(1),

No order made in exercise of any power conferred by or under this Act shall be called in question in any court"".

The substance of Sri Nambiar''s argument is that Makhan Singh Vs. State of Punjab (and connected appeals), from which we have set forth

extracts earlier does not deal with the vires of Rule 30(4), framed by virtue of powers under S. 3(2)15)(i) of the Act, on the principal aspect now

relevant, Rule 30 (4) reads:

So long as there is in force in respect of any person such an order as aforesaid directing that he be detained, he shall be liable to be detained in

such place, and under such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline, as the Central

Government or the State Government, as the case may be, may from time to time determine"".

The argument is that Section 3(2)(15)(i) of the Act makes no reference whatever to the terms and conditions of detention; therefore, Rule 30(4)

proceeds beyond the ambit of the delegated power and is ultra vires. Alternatively, such a delegation must be held to amount to an abdication of an

essential legislative power. This is shown by the following features of the Constitution itself. In the VII Schedule, List I, item 9, we have the entry

Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention"".

Likewise, in the Concurrent List III, item 3, we have ''Preventive detention for reasons connected with the security of a State...............persons

subjected to such detention."" It is significant that, in both Entries ""persons subjected to such detention"" is a separate head of legislation. That can

only imply that the Legislature must enact terms and conditions for detention of persons, upon whom orders of detention had been already served.

This essential legislative function cannot, therefore, be delegated to the rule-making authority. Since, in terms of the criteria laid down in Makhan

Singh Vs. State of Punjab (and connected appeals), such a ground of attack is open to the writ petitioner, the orders of detention must be quashed

and the writs allowed.

(7) The matter is carried still further by Sri Nambiar on the ground that detention in jail would, in any event, be illegal, in terms of the delegated

power. In the State List(List II of the VII Schedule), item 4 is ""Prisons, reformatories, Borstal institutions and other institutions of a like nature, and

persons detained therein"". This division of powers illustrated that persons preventively detained under either the Preventive Detention Act, or under

the Defence of India Act, ad Rules, cannot be kept in jail; as there are two separate ""Entries"", there should be a harmonious interpretation,

modifying the language of one by the other. The following authorities are referred to in support. In G.P. Stewart Vs. Brojendra Kishore Roy

Chaudhury, , the Judges held that his should be the true canon of interpretation in such a context. Again in AIR 1939 1 (Federal Court) the Judges

held that where there is an apparent conflict of power in the Entries, the two sections must be read together, and the language of one interepreted,

and, there necessary, modified, by that of the other; the reason is that it could not have been the intention that a conflict should be perpetuated. The

third authority is AIR 1941 47 (Federal Court) Reference has been also made to the following enactments, namely, the Prisons Act IX of 1894, S.

3 of the Prisoners Act III of 1900, and Madras Regulation II of 1819. But, these laws may require some separate discussion, when we consider

the arguments of Sri V.G. Rao upon the same head, and we shall not proceed into this for the present.

(8) We have very carefully considered the arguments of Sri M.K. Nambiar, on this aspect, and we are unable to hold that either Sec. 3(2)(15)(i)

or Rule 30(4), or both, can be said to be vitiated by the vice of excessive delegation, or implied abdication of legislative function. It is noteworthy

that in Makhan Singh Vs. State of Punjab (and connected appeals), , this precise argument was repelled by the Supreme Court, though it does not

appear to have been pressed on the ground now advanced. We must here emphasise the significance of the terminology of S. 3(1) itself, which

invests the Central Government with a general power to make rules for the wide purposes specified in that sub-section; Section 3(2) commences

Without prejudice to the generality of the powers conferred by the sub-sec, (1)"". In AIR 1945 156 (Privy Council) the Judicial Committee were

concerned with the almost identical language employed in Section 2(1) and S. 2(2), Entries 5 and 10 of the Defence of India Act 1939 and with

Rule 26 framed under the Act, which corresponds to the present Rule 30. The Judicial Committee observed:-

Their Lordships are unable to agree with the learned Chief Justice of the Federal Court on his statement of the relative positions of subsections(1)

and(2) of S. 2 Defence of India Act, and counsel for the respondents in the present appeal was unable to support that statement, or to maintain

that Rule 26 was invalid. In the opinion of their Lordships, the function of sub-section(2) is merely an illustrative one; (I)......................There can

be no doubt as the learned Judge himself appears to have thought that the general language of sub-section(1) amply justifies the terms of Rule 26,

and avoids any of the criticisms which the learned Judge expressed in relation of sub-section (2)"".

(9) If this is applicable to the present situation, it would clearly imply that not merely Rule 30(1)(b) of the rules, which authorities the detention, but

also Rule 30(4), in its terms, could be justified, on the generality of the power u/s 3(1) of the Act, even apart from the circumscribed and separate

specifications of that power under S. 3(2)(15)(i) etc. Sri Nambiar had drawn and stressed an interesting parallel between the Defence of India Act

and the Preventive Detention Act IV of 1950. It is certainly significant, that, under S. 4 of the latter Act, there is statutory provision for the

detention in a prescribed place, of the person on whom the order has been served, on for removal of such detenu from one place of detention to

another. But, we are unable to hold that the Legislature was not justified in taking a wider sweep when enacting the Defence of India Act, without

making a separate legislative provision for the place and terms of the detention. The learned Public Prosecutor would appear to be justified in his

argument that, during the Emergency, the rigour of the lists cannot be said to subsist unabated, in view of the specific terms of Art. 353 of the

Constitution. Article 353 is also relevant upon the other argument, that the orders of detention have not been made upon the subjective satisfaction

of the Government of Madras, or should be presumed not to have been so made, in view of certain specific passages in the speeches of the Union

Home Minister in Parliament, which preceded the Orders. Certainly, Art. 353(a) explicitly states that the executive power of the Union extends,

during an Emergency, to giving directions or instructions to a State. Such legislative provisions, as the Entries referred to by Sri Nambiar, do not

necessarily imply a legislative obligation to enact upon the topic.

(10) Upon one aspect, this entire matter was examined by the Full Bench of the Lahore High Court in Harkishan Das v. Emperor, ILR (1944) Lah

243:AIR 1944 Lah 33 that related to Ss. 2 and 3 of the Defence of India Act 1939 and an order of detention under Rule 26. Section 2(2)(x)

corresponded to our present S. 3(2)(15)(i), and the precise argument was that Rule 26 exceeded the rule-making power. Reference was also

made to Entries in the VII Schedule of the Government of India Act. Harries C.J. observed:

The conditions of detention, such as the place of detention, the conditions under which a persons is to be detained, the discipline to be enforced

during detention, and such like are matters of detail which, in my view, can be rightly delegated to a rule-making authority, and need not be dealt

with in the statute itself. It is to be observed that the statute does lay down a general principle to guide authorities.

We think that, even apart from any other considerations, the very words of S. 3(2)(15)(i) namely, ""apprehension and detention in custody"" of the

person referred to, necessarily imply that the detaining authority must detain that person under such terms, as to maintenance and discipline, as the

rule-making authority may specify; it is hardly a reasonable requirement of the legislature that the legislature should expressly specify these terms in

the statute, and the broad purport thereof would seem to be necessarily implied. During the course of arguments, for instance, we had to consider

the logical outcome of the argument of Sri Nambiar, if the apprehension and detention were under the law, but the rule-making authority could

specify no terms as to place of detention or maintenance of the detenu, because the broad power had not been the subject of legislation, did it

imply that the detenu could be kept in any mode, without reference to the civilised usage? This necessarily involves the vires of the Security

Prisoners Rules 1963, promulgated by Government, a copy of which is before us, and which forms also the subject of argument. We are fortified

in our view of the necessary implication of this power in S. 3(2)(15)(i) because of the judgment of the Supreme Court in State of Maharashtra Vs.

Prabhakar Pandurang Sangzgiri and Another, . This related to a detenu who wrote a book in Marathi, the title of which could be translated as

Inside the Atom"" and which was an unobjectionable scientific work, designed to disseminate knowledge regarding the Quantum Theory. The

authorities declined to forward the manuscript for publication, because the relevant Rule gave the detenu no such rights, nor did it impose on the

authorities any corresponding obligation. The Supreme Court observed that the Bombay conditions of Detention Order 1951, are not privilege

conferred on the detenu, but the terms of the restrictions on his liberty. Hence, since there was no term prohibiting the detenu from writing such a

book or sending it for publication, the authorities could not prevent the sending of the book for publication. Their Lordships observed that if the

view were to be upheld that the rules conferred only privileges, ""it would mean that the detenu could be starved to death, if there was no condition

providing for giving food to the detenu"".

(11) Where an Act confers a jurisdiction, it impliedly also grants the power of doing of such acts, or of employing such means, as are essentially

necessary to its execution. Thus, an Act which empowered the Justices to require persons to take an oath as Special Constables, and gave them

jurisdiction to inquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those

purposes. Attorney General v. Fulham Corporation, 1921 I Ch 440. The principle is expounded in Maxwell''s Interpretation of Statutes 11th Edn

page 350. In Cries on Statutes, 5th Edn, page 105 it is observed:

If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great

importance.................to the proper and effectual performance of the work which the statute has in contemplation, the courts are at liberty to infer

that the statute by implication empowers that detail to be carried out"".

Thus, in Cookson v. Lee (1853) 23 LJ Ch 473 a private Act vested certain lands in trustees for the purpose of enabling them to sell the lands for

building purposes, but the Act contained no express power to expand any portion of the purchase moneys in setting out the lands, or in making

road. Under those circumstances, the court held that, having regard to the object of the Act such power ought to be implied. For these reasons,

we are of the view that, Rule 30(4) cannot be struck down as vitiated by the vice of excessive delegation. We need not, hence, consider the further

argument of the learned Public Prosecutor that, even on the assumption that the vice exists, this would necessarily imply the invoking by the detenu

of Art, 21 in his favour, which is barred by the Presidential Proclamation; a question that has not been answered in Makhan Singh Vs. State of

Punjab (and connected appeals), .

(12) Sri V.G. Rao has submitted certain arguments upon the power of the State Government to frame such rules. But, if Rule 30(4) is valid, the

place of detention and the terms of detention may be determined either by the Central Government or the State Government, as the case may be.

(13) Sri M.R. Venkataraman has taken us through the actual rules(Security Prisoners Rules1963) and pointed out certain rigours and defects

therein, virtually reducing a security prisoner to the status of a convicted criminal. Particular stress is laid, for instance, on Rule 17 sub-rule(vi),

which renders the security prisoner liable for punishment, if he disobeys ""the orders of any officer of the jail"". We think it is sufficient to indicate, in

this context, that persons detained under the Defence of India Act, are certainly not prisoners in the ordinary sense, and the place of detention is,

again, not a jail in the ordinary sense; these are the very arguments of the learned Public Prosecutor for the State, as we shall presently show. That

being the case, these rules ought to be framed, taking the special context into consideration, and if, they require any modification, in any respect, a

review of the entire set of regulations at a high level would appear to be very desirable.

(14) Both Sri Rao and Sri Nambiar have stressed the illegality of the detention of the writ petitioners in jail, in the context of certain provisions in

certain prior Acts, and legal character of this particular exercise of the power. This has been stressed, even apart from the argument upon the vice

of excessive delegation. The Prisons Act IX of 1894 defines a ""prison"" as a jail or place for the detention of prisoners. There is a definition of

Criminal Prisoner"" u/s 3(2) and the learned Public Prosecutor stresses that a detenu is not a ""Criminal Prisoner"". According to him, that is by no

means an exhaustive category, and the definition of a ""civil prisoner"" in S. 3(4) of the same Act is much wider, excluding a ""criminal prisoner"". The

following authorities have been relied upon by the learned Public Prosecutor for the proposition that a detenu would not be a prisoner at all, nor

could the place of his detention be termed a ""jail"" in the strict sense, apart from mere nomenclature; Vide Taherally Mahomedally Kajiji Vs.

Chanabasappa Mallappa Warad, ; Maqbool Hussain Vs. The State of Bombay, and Bijai Bahadur and Others Vs. State, . Sri Nambiar has

contended that, under S. 3 of the Prisoners Act, 1900, an officer in charge of a prison has authority to receive and detain only persons duly

committed to his custody, under the Act or otherwise, by any court, according to the exigency of any writ, warrant or order. How, it is argues,

could the Suprintendent of the concerned jails, in the present cases, receive the petitioners and take them into custody when the detention has been

directed neither by a court, nor under the Prisoners Act III of 1907? But, we do not find this to be a really substantial ground of attack. The

Prisoners Act may not be exhaustive of all the categories of persons who could be lodged in prisons. The detenu has to be detained in some place

or other, as specified by the authority, which also might subserve the security purposes of the State. They are not prisoners, and, as the learned

Public Prosecutor has stressed political or security prisoners would appear to have been lodged in jails ever since 1819. The Madras State

Prisoners Regulation 1819 has been referred to, in this context, and also with regard to the obligation to periodically review the detentions, enacted

in S. 3 of this regulation. This Regulation prescribes a warrant of commitment, and, obviously, the procedure may vary or evolve, upon such an

aspect. The detention order would be sufficient authority for the Government officer in charge of the jail, to receive the persons specified in such

orders.

(15) We may now proceed to the aspect of the mala fides, and to certain arguments which are subsidiary under that main head. The entire

argument could be summarised and set forth as follows.

(16) According to Sri M.R. Venkataraman, the exercise of the power by the State Government in the present cases must be held mala fide or

colourable, on a variety of grounds, Reliance is placed on S. Pratap Singh Vs. The State of Punjab, , for the view that the grounds of ultra vires

and that of mala fides are often inextricably mixed. Mala fides need not necessarily relate to the deliberate misuse of power against an individual,

from private motives, by a Minister or Authority of Government. Indeed, Sri Venkataraman has been at pains to assure us that, to his knowledge,

no such factor has been operative in any of the present cases. But, if the power is exercised for a purpose other than that for which it was intended,

embodied in statute or rules, that would be a case of fraud on power. In that sense, it would be mala fide & would be liable to be struck down by

courts. According to the argument, the power was used, in the present case, to paralyse the activities of an opposing political ground(left-wing

Communist party) from ulterior considerations. The Kerala Elections were due to take place in February 1965, and these wholesale arrests and

detentions took place on 29th December 1964, and a few days thereafter, in order to cripple the party in its election prospects there, as the

Congress Authorities considered Kerala a test case. The Left-wing communist party, which was designated as a pro-Peking group, as will be clear

even from the arguments submitted before the Supreme Court, in K. Anandan Nambiar and Another Vs. Chief Secretary, Government of Madras

and Others, , had actually issued several statements and resolutions of strong support to the maintenance of the territorial integrity of India, both as

regards Pakistani aggression and as regards the Chinese aggression. The epithet ""Pro-Peking"" is unjust and undeserved, and the party was merely

given a bad name, in order to paralyse its activities. The statements made by the Union Home Minister indicate that the Central Government had

decided to imprison all prominent members of this Party, for political grounds; the subjective satisfaction of the Madras Government or its Chief

Minister was really illusory, and did not exist. The above orders were passed on the same day, and the entire approach was that prominent

members of the Party should be arrested and detained en masse, because of such membership. There was no possibility of individual satisfaction,

and this is really a question of ultra vires. The Defence of India Act does not permit members of a Party, as a group to be detained; the power

relates to individuals alone, whose activities were or might be considered objectionable. The orders were issued on cyclostyled forms, and names

might even have been erroneously included. The review orders passed on 30-05-1965 were on printed forms, issued simultaneously. There was

nothing particularly significant in the border situation as regards China in December 1964, when the orders were passed making specific reference

to the defence of India. Certain passages in the affidavit of the Deputy Secretary to the Government(Sri Belliappa) are relied on, as indicative that

the entire perspective was that of paralysing the group. Particular stress is laid on one passage, which is to the effect that ""where a large group of

politically active persons is considered by Government, acting on the basis of information, as liable to endanger the peace and security of the State,

individual orders of detention on members of such a group can be validly and legally made.

(17) The other grounds of objection are; (1) From the counter affidavit field on behalf of the Government, it appears that there was no satisfaction

on the question whether the detention was necessary for the defence of India. Reference was made to the security of the State in more than one

passage, and this consideration renders the order of detention illegal; Vide Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , The review

orders under Rule 30-A are illegal, because no opportunity was given to the detenus to show cause against the continuance of the detention. The

review is of a judicial character, or at least quasi-judicial in character, and the principle of audi alteram partem should have been observed. (3)

Reference to ""intelligence"" agencies in the counter-affidavit indicates that the detentions were merely ordered on police reports. That is illegal, on

the authority of AIR 1945 156 (Privy Council) of the Act has been violated, as persons have been detained who are from several social strata of

widely different avocations, and the normal avocations of all of them have been totally frustrated; Vide Godavari Shamrao Parulekar Vs. State of

Maharashtra and Others, . The detenus include a Law Student, petty traders and minor employees, (5) Service of detention orders upon some

persons, who were already in jail is contrary to Law.

(18) We shall deal briefly with three arguments, upon the aspect of mala fides and the related subsidiary aspects. We shall refer, to the degree

which is essential, to the issues of fact, as evident from the materials placed before us. But we must make it plain that, as we comprehend the ambit

of our power, once R. 30(4) is held valid, the subjective satisfaction of the Government cannot really be canvassed by us. As observed by one of

us in K.T.K. Thangamani (Detenu, Central Jail) Salem and Another Vs. The Chief Secretary, Government of Madras and Another, , in terms of S.

45(1) of the Defence of India Act, 1962, even S. 44 would appear to be directory and not mandatory in character, though certainly, this does not

imply that the directive can be set at naught or disregarded by the Executive, in making orders of detention.

(19) It is very difficult for us to canvass the aspect of the extent to which the Left-Wing Communist party, to which the detenus belong, was really

in co-operation with the Central Government, and, indeed, with almost the entire Nation, in the matter of its attitude to Chinese and Pakistani

aggression. Certain public statements and declarations of the Party have been made available to us, in this context. They include references to the

territorial integrity of India, and the imperative need to preserve that integrity. According to the learned Public Prosecutor, they significantly do not

contain any explicit and categorical denunciation of Chinese aggression upon the borders of this country. Again, the professions and the practice or

activities of a political party, or its Members, may be at variance. As regards the activities Government may receive information from a variety of

sources, which may include what are termed as ""intelligence report"". We do not see how all this could be canvassed in a court of law, except,

perhaps, to reinforce a conceivable argument that the power to detain was being used mala fide. During the Emergency, a situation fraught with

potential danger, such as a border situation, may have to be judged, not merely with respect to its temporary quiescence, but its possible future

developments. The courts are not at all advantageously situated to proceed into such issues of fact, and to assess the wisdom of the Executive in

taking a particular course of action. We think it is sufficient to state that, upon none of the grounds of fact adverted to by Sri M.R. Venkatraman,

we are able to hold that the action of the Government was mala fide. The Kerala Elections, though due in February 1965, were over long

previously, when the orders of review were made in these cases, continuing the detentions in a large number of cases. Many, or most of the

persons detained could hardly have affected those Elections in another State, by active intervention or speeches in the course of the campaign. A

consideration of all the factors, and a consideration of each individual case, could well have preceded the simultaneous issue of orders of detention

on a particular date; a fairly obvious rule of administrative exigency seems to have led to the promulgation of simultaneous orders. Such matters as

the use of cyclostyled forms, or printed forms in review cases, cannot affect the legality of the orders if, substantially, there was individual

satisfaction or due consideration. The learned Public Prosecutor relies on the following authorities in support of this contention, namely, Kamla

Kant Azad Vs. Emperor, ; AIR 1943 75 (Federal Court) and A.K. Gopalan Vs. The Government of India, .

(20) We think that a word is necessary about the main argument on the matter of mala fides, that the perspective of approach has been erroneous.

It is argued that it is ultra vires and amounts to a colourable use of power, that the power to detain should be exercised en masse, with respect to

members of a particular political group, though the outward semblance or form may be that of individual satisfaction. The passage in the affidavit of

Sri Belliappa, that we have earlier referred to, is cited in support. The two English decisions placed before court by the learned Public

Prosecutor(apart from the well-known decision Liversidge v. Anderson, 1942 AC 206) are also distinguished on this aspect. In Rex v. Secretary

of State for Home Affairs; Lees, Ex parte, 1941 1 KB 72, the Regulation in question empowered the executive to detain a person, because he

was a member of a group with objectionable activities. In contrast, the argument is that the Defence of India Act refers only to the detention of

individuals whose activities are objectionable. In 1941 2 All ER 665, the order of detention was held not invalid because it was a general one, and

common to all the individuals whose names were set out in the Sch. to the order. We think it is sufficient to point out that a refinement or distinction

applies here, which, as a question of fact, we have no reasons to think was ignored, in the present instances. If we suppose that the activities of the

members of a particular group were prejudicial to the safety of India, we do not think that it could be contended, for a moment, that the Executive

would not be justified in considering the detention of the members of that group. It cannot be argued that such a perspective of approach per se, is

erroneous or opposed to the Defence of India Act and the rules. But, when detaining such individual, the consideration ought to be the subjective

satisfaction that such an individual, as a member of the group, had also indulged in objectionable activities, or was likely to do so. To detain him

qua membership of the group, and without consideration of his participation, in those activities would certainly be illegal. But the affidavits of the

Chief Secretary and the Deputy Secretary, have, obviously, to be read as a whole. In our view, they adequately indicate that the subjective

satisfaction related to each case, though the consideration might have originated from the knowledge of the activities of a group. We may point out

that out of several thousands of the members of the party, only a few have been detained, and certain Left-wing Communists, at least, have not

been detained. We see no reason for an inference that the detentions were en masse destitute of the element of individual satisfaction.

(21) The argument that the detentions were illegal, because of references in the affidavits to the Security of the State, as distinguished from the

defence of India, does not appear to be sound. The decision in Dr. Ram Manohar Lohia Vs. State of Bihar and Others, has no application to the

present context. Here, the detention orders are couched in proper language, and it is only in isolated passages of the affidavits that there is some

intermingling of purposes. The two counter affidavits have to be read as a whole, though there might be a passage here and there, in which stress is

laid on the security of the States, thus read, it is clear enough that activities prejudicial to the defence of India, or likely to be so prejudicial, formed

the basis of the general consideration. These categories are, after all, not rigidly exclusive of each other, as a bare scrutiny of S. 3(1) of the Act or

R. 30(1) of the Rules will indicate. The learned Public Prosecutor has stressed that Police reports were not the only source of information to the

Government, and, apart from this AIR 1945 156 (Privy Council) may not apply to the present facts, since the reports were fully considered.

(22) Sri M.R. Venkataraman argued that the detention orders, in several cases, including his case, specified other places of detention, such as

Vellore jail, but actually these persons were detained in the Cuddalore Jail contrary to the terms of original orders. The matter has been explained

in the counter affidavit of the Deputy Secretary(Sri Belliappa). As apparently happened in the Supreme Court case, there was a subsequent order

of Government, modifying the places of detention, with an attached Schedule, and we have also been shown such an order. The argument that

orders of detention cannot be served on persons who were already in jail, and that such orders would be illegal, is an interesting one. It proceeds,

obviously, on the principle that at least at the moment of service of such an order that person is incapable of indulging in prejudicial activities; nor

could there be any apprehension about this. But the earlier decisions of the Supreme Court on this aspect, Rameshwar Shaw Vs. District

Magistrate, Burdwan and Another, and Makhan Singh Tarsikka Vs. The State of Punjab, , have been explained in the later decision Godavari

Shamrao Parulekar Vs. State of Maharashtra and Others, . In the present instances, the detenus who have been apprehended earlier, had either

been apprehended under S. 151 or S. 54 of the Criminal Procedure Code, and were not in indefinite custody or custody of specific and long

duration. These services would, therefore, appear to be legal and free from objection. Upon any technical defects that might have applied at the

time of the service of the original orders of detention, we think that we must accept the argument of the learned Public Prosecutor that if the

detention is legal at the time of the return in the habeas corpus application, that point of time alone would be material, and a prior illegal order

would not truly affect the situation. The authorities in support are AIR 1945 18 (Federal Court) , Ram Narayan Singh Vs. The State of Delhi and

Others, and Naranjan Singh Nathawan Vs. The State of Punjab, .

(23) We may pass on to the last general argument, before considering the facts of the individual cases, namely, the manner in which the power of

review has been exercised; in the petition before us. In all these cases, where the continuance in detention has been ordered and the Review has

been declined, the orders have been on printed forms. Further, there is nothing to show that an opportunity was given to the concerned detenus to

make any representations, or that such representations were heard. Sri Rao argues that this is not merely in contrast to the beneficent provisions of

S. 3 of Madras Regulation II of 1819, but it indicates that we have regressed in this matter of democratic practice, as compared with 1819. It is

stressed that the power of review should at least be termed a quasi-judicial power, and that the detenu ought to be informed, at this stage at least,

of the broad grounds of his detention, and permitted to make his representations, if continuance of detention is to be decided upon. In the judgment

of in WA No. 16 of 1965 and WP 1298 of 1964 (Mad), to which one of us was a party, this court had occasion to consider, at some length, the

principles upon which a particular exercise of power could be termed quasi judicial in character, following the criteria in Rex v. Electricity

Commrs., 1924 1 KB 171 as further elaborated in Ridge v. Baldwin, 1963 2 WLR 935 and in such decisions of the Supreme Court as Province

of Bombay Vs. Kusaldas S. Advani and Others, Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, , Board of High

School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, and Shankarlal Aggarwal and Others Vs. Shankarlal

Poddar and Others, . As pointed out by the learned Public Prosecutor, this power of review in cases of detention, is a new provision in the

Defence of India Act 1962, which is not to be found in the 1939 Act or in the 1962 Ordinance.

(24) That an order of review is executive and not quasi-judicial in character, has been recently held by the Supreme Court in Sadhu Singh Vs.

Delhi Administration, . The scope of the power of review has been indicated by the Supreme Court in Biren Dutta and Others Vs. Chief

Commissioner of Tripura and Another, and Balmukand Vs. Dist. Magistrate, Delhi and Another, . As indicated in these cases, where the order of

detention is being reviewed, the question of the possible or probable further activities of the detenu cannot be relevant, for the simple reason that he

is in detention; his activities, from the date of his detention, upto the date of the actual review, he having been immobilised, are without significance.

But the situation which led to his detention could be assessed as well as its further potentialities. The reviewing authority must also take into

consideration the probable future activities of the detenu if his detention were to cease. According to the learned Public Prosecutor, the power of

review has been exercised in favour of the detenus in certain cases, on representations made by them disassociating themselves with certain

programs, or with the left-wing Communist Party of India. It is in this context we think that we should emphasise that the power ought not to be

mechanical, or a mere formality. It is a substantial right of the detenu, and it should be real; there should be a careful consideration of all relevant

factors, and it would be highly desirable, even if the absence of this procedure does not vitiate the exercise of the power, that the detenu should be

afforded an opportunity to make his representations, and that he should be heard. We think that the use or non-use of printed forms is a very minor

matter altogether. Clearly, the printed forms could be used after the most mature consideration of every individual case. Per contra, the orders

could be in writing, or type-script, relevant ex facie to each individual case separately, and could still be a mere mechanical use of the power.

(25) Finally, we shall deal though briefly, with the special facts of certain cases which have been placed before us by Sri Rao. We may add here

that we have taken the trouble to go through the record in each of these cases, which fall into certain clear categories of objection or complaint.

(The rest of the judgments are not material for purposes of this report).

(26) Writ petitions dismissed.