DR. N.B. KHARE …PETITIONER
Vs.
THE STATE OF DELHI …RESPONDENT

DATE OF JUDGMENT: 26/05/1950

BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K.

CITATION: 1950 AIR 211 [1950] INSC 19; 1950 SCR 519

CITATOR INFO :

R 1952 SC 75 (15) D 1952 SC 196 (15,17,18) R 1956 SC 559 (8) R 1957 SC 510 (15) RF 1957 SC 896 (11,13) E 1958 SC 578 (169) R 1959 SC 459 (48) R 1962 SC1371 (35) RF 1964 SC1279 (6) R 1968 SC 445 (14) R 1971 SC1667 (27) RF 1973 SC1461 (242,451) R 1974 SC 175 (14) R 1974 SC1044 (24) R 1975 SC2299 (485) R 1978 SC 851 (24) RF 1979 SC 25 (31) R 1980 SC1382 (81)

ACT:

Constitution of India, Art. 19, cls. (1) (d) and (5) Fundamental rights–Freedom of movement–Law imposing re- strictions-Validity–Reasonableness trictions–Scope of enquiry–East Punjab Public Safety Act, 1949, s. 4 (1)(c), (3), (6)–Provisions empowering Provincial Government or District Magistrate to extern persons making satisfaction of externing authority final, authorising externment for indef- inite period, and directing that authority “may communicate” grounds of externment–Whether reasonable–Construction and Validity of Act.

67 520

HEADNOTE:

Section 4, sub-s. (1) (c), of the East Punjab Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to be in force until the 14th August, 1951, provided that “The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary to do so, may, by order in writing, give a direction that such person shall remove himself from, and shall not return to, any area that may be specified in the order.” Sub-section (3) of s. 4 provided that “an order under sub-s. (1) made by the District Magistrate shall not, unless the Provincial Goverment by special order otherwise directs, remain in force for more than three months from the making thereof,” and sub-s. (6) laid down that “when an order has been made in respect of any person under any of the clauses under s. 4, sub-s. (1) or sub-s. (9.), the grounds of it may be communicated to him by the authority making the order, and in any case when the order is to be in force for more then three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under s. 3, sub-s. (4).” The petitioner, against whom an order under (1) (c) of the Act was passed applied to the Court under Art. 39, of the Constitution for a writ of certiorari contending that the order was illegal inasmuch as the provisions of the above mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territo- ry of India which was guaranteed by Art. 19 (1) (d) of the Constitution and were accordingly void under Art. 13 (1) of the Constitution:

Held, per KANIA C.J., FAZL ALl and PATANJALI SASTRI, J3.

(MAHAJAN and MUKHERJEA, JJ. dissenting)–(i) that there was nothing unreasonable in the provision contained in sub-s.

(1) (c) empowering the Provincial Government or the Dis- trict Magistrate to make an externment order, and making their satisfaction as to the necessity of making such an order final, or in the provisions contained in sub-s. (3) of s. 4 that an order of a District Magistrate may remain in force for three months and that the Provincial Government may make an order, or keep alive an order made by a District Magistrate, for a period exceeding three months without fixing any time limit; (ii) with regard to sub-s. (6), the word “may” in the expression “may communicate” must, in the context, be read as meaning “shall” and under the sub-sec- tion it is obligatory on the authority making an order to communicate the grounds to the externee;.(iii) the restric- tions imposed by the above-mentioned provisions of the Act upon the fundamental right guaranteed by Art. (19) (1) (d) were not, therefore, unreasonable restrictions within the meaning 01 Art. 19 (5) and the provisions of the Act were not void under Art. 13 (1), and the order of externment was not illegal.

Per MUKHERJEA J. (MAHAJAN J. concurring)–Though certain authorities can be invested with power to make 521 initial orders on their own satisfaction in cases of this description, and s. 4 (1) (c) of the East punjab Public Safety Act cannot be pronounced to be unreasonable simply because an order I could be passed by the Provincial Gov- ernment or the District Magistrate on their own personal satisfaction and not on materials, which satisfy certain objective tests, yet, the position would be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an oppor- tunity to say what he has got to say against the order; and inasmuch as sub-s. (3) of s. 4 prescribes no limit to the period of time during which an externment order would remain in force if it is made by the Provincial Government, and the Provincial Government is also given power to keep an order made by a District Magistrate in force for an indefinite period, the provisions of sub-s. (3) are manifestly unrea- sonable. The provisions of sub-s. (6)of s. 4 are also unreasonable as they make it entirely optional with the authorities to communicate to the person affected, the grounds upon which the order is made. Neither sub-s. (3) nor sub-s. (6) of s. 4 can, therefore, be said to have imposed restrictions which are reasonable in the interests of the general public within the meaning of Art. 19 (5) and these provisions of the Act were consequently void and inoperative under Art. 13 (1)of the Constitution, and the externment order was illegal.

Held also, per KANIA C.J., FAZL ALI, MAHAJAN and MUKH- ERJEA JJ.–Whether the restrictions imposed by a legislative enactment upon the fundamental right guaranteed by Art. 19 (1) (d) are reasonable within the meaning of Art. 19 (5) of the Constitution would depend as much on the procedural portion of the law as the substantive part of it] and in considering whether such restrictions are reasonable the Court is not therefore bound to confine itself to an exami- nation of the reasonableness of the restrictions in the abstract with reference to their duration and territorial extent. The Court can also consider the reasonableness of the procedural part of the law and the circumstances under which, and the manner in which, the restrictions have been imposed. [PATANJALI SASLUP, I J. did not express any opin- ion on this point.]

ORIGINAL JURISDICTION: Petition No. XXXVII of 1950.

Application under article 32 of the Constitution of India for a writ of certiorari and prohibition. The facts are set out in the judgment.

B. Banerji for the petitioner.

M.C. Setalvad, Attorney-General for India (Gyan Chand, with him) for the opposite party.

522 1950. May 26. The following judgments were delivered:– KANIA C.J.–This is an application for a writ of ‘certiorari and prohibition under article 32 of the Constitution of India.

The petitioner who is the President of the All India Hindu Mahasabha since December, 1949, was served with an order of externment dated the gist of March, 1950, that night. By that order he is directed by the District Magis- trate, Delhi, not to remain in the Delhi District, and immediately to remove himself from the Delhi District and not to return to the District. The order was to continue in force for three months. By another order of the Madhya Bharat Government he was directed to reside in Nagpur. That order has been recently cancelled. The petitioner disputes the validity of the first order on the ground that the East Punjab Public Safety Act, 1949, under which the order was made, is an infringement of his fundamental right given under article 19 (1) (d) of the Constitution of India. He further contends that the grounds of the order served on him are vague, insufficient and incomplete. According to him the object of the externment order passed by the District Magistrate, Delhi, was to suppress political opposition to the policy of the Government in respect of Pakistan and the Muslim League. It is alleged that because the petitioner and the Hindu Mahasabha are against the Government policy of appeasement this order is served on him. It is therefore mala fide and illegal. In support of his contention about the invalidity of the East Punjab Public Safety Act and its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950, Brij- nandan v. The State of Bihar, and of the High Court of Bombay in Criminal Application No. 114 of 1950, re Jai- singhbhai Ishwarlal Modi.

It is necessary first to ascertain the true meaning of article 19 (1) (d) read with clause (5) of the same article.

There is no doubt that by the order of extern- 523 ment the right of the petitioner to freedom of movement throughout the territory of India is abridged. The only question is whether the limits of permissible legislation under clause (5) are exceeded. That clause provides as follows:–“19. (5) Nothing in subclauses (d), (e) and (f) of the said clause shall affect the operation of any exist- ing 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 either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.” It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub- clause (d)in the interests of the general public. The rest of the provision of clause (5) is not material and neither side relies on it. Two interpretations of the clause are put before the Court. It is argued that grammatically understood the only question before the Court is whether the impugned legislation imposes reasonable restrictions on the exercise of the right. To put it in other words, the only justiciable issue to be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right are reasonable. If those restrictions on the exercise of the right are reasonable, the Court has not to consider whether the law imposing the restrictions is rea- sonable. The other interpretation is that while the Consti- tution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub-clause 19 (1) (d), the reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions, on the exercise of the right are reasonable, the Court has to decide not only on the extent and nature of the restric- tions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable. The majority judgments of the Patna and the Bombay High Courts, although the impugned Acts of the State Legislatures before them were materially different on cer- tain important points, have given clause (5) of article 19 the latter meaning.

524 In my opinion, clause (5) must be given its full mean- ing. The question which the Court has to consider is wheth- er the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safe- guards against the abuse of the power given to the executive authority tO administer the law is not relevant for the true interpretation of the ‘clause. The Court, on either inter- pretation, will be entitled to consider whether the re- strictions on the right to move throughout India, i.e,, both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions.

While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substan- tive part, is necessarily for the consideration of the Court under clause (5). Similarly, if the law provides the proce- dure under which the exercise of the right may be restrict- ed, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and ambit of the word “reasonable” as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged. it seems that the narrow construc- tion sought to be put on the expression, to restrict the Court’s power to consider only the substantive law on the point, is not correct. In my opinion this aspect of the construction of article 19 (5) has escaped the minority judgment in the two matters mentioned above. I am not con- cerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of article 19 (5) only they are helpful.

525 The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under article 19 (1)(d)or (e). It was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to the Provincial Government or the District Magistrate, whose satisfaction was final.

That decision was not open to review by the Court. On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen’s right. In my opinion, this argument is unsound. This is not legislative delegation. The desirability of passing an individual order of externment against a citizen has to be left to an offi- cer. In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unrea- sonable restriction on the exercise of the citizen’s right.

So far as the Bombay High Court is concerned Chagla C.J.

appears to have decided this point against the contention of the petitioner.

It was next urged that under section 4 (3) the order made by the District Magistrate shall not, unless the Pro- vincial Government by special order otherwise direct, remain in force for more than three months. It was argued that the period of three months itself was unreasonable as the ex- ternee had no remedy during that time. It was contended that when the Provincial Government directed the renewal of the order no limit of time was prescribed by the legislature for the duration of the order. The order therefore can be in operation for an indefinite period. This was argued to be an unreasonable restriction on the exercise of a citi- zen’s right. In this connection it may be pointed out that in respect of preventive detention, which is a more severe restriction on the right of the citizen, the Constitution itself under article 22 (4) to (7) permits preventive deten- tion for three months without any remedy. The period of three months therefore prima facie does not appear unreason- able. Under the proviso to section 4 (5) the Provincial Government is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly 526 the District Magistrate is not permitted to order the exclu- sion or removal of a person ordinarily resident in his district from that district. This is a great safeguard provided under the East Punjab Public Safety Act. The further extension of the externment order beyond three months may be for an indefinite period, but in that connec- tion the fact that the whole Act is to remain in force only up to the 14th August, 1951, cannot be overlooked. More- over, this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the sec- tion. In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis.

Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension. In my opinion, therefore, this contention of the petitioner cannot be accepted.

It. was next argued that there is no provision in the Act for furnishing grounds of externment to the citizen.

Section 4 (6) provides that when an externment order has been made its grounds may be communicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal constituted under section 3 (4). While the word “may” ordinarily conveys the idea of a discretion and not compulsion, reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the cxternee to make a representation. He cannot make a representation unless he has been furnished grounds for the order. In no other part of the Act a right to obtain the grouuds for the order in such a case is given to him. Therefore, that right has to be read as given under the first part of section 4 (6). That can be done only by reading the word “may” for that purpose as having the mean- ing of “shall” If the word “may” has to be so read for that purpose, it appears to be against the well-recognised canons of construction to 527 read the same “may” as having a different meaning when the order is to be in force for less than three months. I do not think in putting the meaning of “shall” on “may” in the clause, I am unduly straining the language used in the clause. So read this argument must fail.

It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation. A reference to the advisory board neces- sarily implies a consideration of the case by such board.

The absence of an express statement to that effect in the impugned Act does not invalidate the Act.

It was finally contended on behalf of the petitioner that the grounds for the externment order supplied to him are vague, insufficient and incomplete. The grounds are stated as follows :– “Your activities generally and particularly since the recent trouble in East and West Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities, your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, it is considered necessary to order you to leave Delhi.” These grounds cannot be described as vague, insufficient or incomplete. It is expressly stated that the activities of the petitioner, who is the President of the Hindu Maha- sabha, since the recent disturbances between two communities in the East and West Bengal have particularly been of a communal nature which excites hatred between the communi- ties. It is further stated that having regard to the recent disturbance in Delhi, the population of which is composed of both these communities, the excitement of such,hatred is likely to be dangerous to the peace and maintenance of law and order. Apart from being vague, I think that these grounds are specific and if honestly be- lieved can support the order. The argument that the order 528 was served to stifle opposition to the Government policy of appeasement has little bearing because the District Magis- trate of Delhi is not concerned with the policy of the Government of appeasement or otherwise. The order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that conclusion of the District Magistrate. I therefore think that this contention of the petitioner must be rejected.

The result is that the petition fails and is dismissed.

FAZL ALI J.–I agree.

PATANJALI SASTRI J.–I agree that this application must fail. As I share the views expressed by my Lord in.the judgment just delivered by him on the reasonableness of the restrictions imposed by the impugned legislation whichever construction of article 19 (5) of the Constitution is adopt- ed, I consider it unnecessary to express any opinion on the true scope of the judicial review permitted under that article, and I hold myself free to deal with that point when it becomes necessary to do so.

MAHAJAN J.–I concur in the judgment which my brother Mukh- erjea is delivering and for the reasons given by him I allow the petition and quash the order of externment.

MUKHERJEA J.–This is an application under article 32 of the Constitution, praying for quashing of an externment order made by the District Magistrate of Delhi, against the petitioner Dr. N.B. Khare, on 31st March, 1950, by which the latter was directed to remove himself immediately from the Delhi District and not to return to that District so long as the order remained in force. The order is for three months at present. Complaint was also made in the petition in respect of another and a subsequent order passed by the Government of Madhya Bharat which was served on the peti- tioner on his way to Nagpur and which 529 directed him to reside within the limits of the Nagpur Municipality and not to leave that area without the permis- sion of the District Magistrate of that place. This order of the Government of Madhya Bharat, we are told, has since been withdrawn and we are not concerned with that order or the Act under which it was passed in the present proceeding.

The substantial contention raised on behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act, 1949, under which the District Magistrate of Delhi purported to make the externment order, became void and ceased to be operative after the new Consti- tution came into force, by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19 (1) (d) of the Constitution read with clause (5) of the same article. The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law.

In order to appreciate the merits of this contention, it may be convenient to advert to the material provisions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution, upon which reliance has been placed by the learned counsel for the petitioner.

The East Punjab Public Safety Act came into force on 29th March, 1949, and its object, as stated in the preamble, is to provide for special measures to ensure public safety and maintenance of public order. Section 4 (1) of the Act provides:

“The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudi- cial to the public safety or the maintenance of public order it is necessary so to do, may, by order in writing, give anyone or more of the following directions, namely that such person ……………………………………………

(c) shall remove himself from, and shall not return to, any area that may be specified in the order.” , 530 Sub-section (3) of the section lays down that “An order under sub-section (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof.” The contention of the petitioner is that the restrictive provisions mentioned above, under which a person could be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19 (1) (d) of the Constitution under which all citizens shall have the right “to move freely throughout the territory of India.” This right indeed is not absolute and the extent to which it could be curtailed by legislation is laid down in clause.(5)of article 19 which runs as follows:

“Nothing in sub-clauses (d), (e) and (f) of the said clause 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 either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.” Thus the primary question which requires consideration is, whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19 (1) (d) of the Consitution is protected by clause (5) of the article, under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public. It is not disputed that the question of reasonableness is a justiciable matter which has to be determined by the Court. If the Courts ‘hold the restrictions imposed by the law to be reasonable, the petitioner would certainly have no remedy. If, on the other hand, they are held to be unreasonable, article 13 (1)of the Constitution imposes a duty upon the Court to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under Part III of the Constitution.

531 It has been urged, though somewhat faintly, by the learned Attorney-General that the right of free movement throughout the Indian territory as enunciated in article 19 (1) (d) of the Constitution contemplates nothing else but absence of inter-State restrictions, which might prevent citizens of the Indian Union from moving from one State to another. A law which does not impose barriers of this kind, it is said, cannot be inconsistent with the fundamental right secured by this clause. Such a restricted interpreta- tion is, in my opinion, not at all warranted by the language of the sub-clause. What article 19 (1) (d) of the Constitu- tion guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever. They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned. Clause (c) of section 4 (1) of the East Punjab Public Safety Act, 1949, authorises the Provin- cial Government or the District Magistrate to direct any person to remove himself from any area and prohibit him from entering the same. On the face of it such provision repre- sents an interference with the. fundamental right guaran- teed by article 19 (1) (d) of the Constitution. The contro- versy, therefore, narrows down to this, whether the impugned legislation is saved by reason of its being within the permissible limits prescribed by clause (5) of article 19.

With regard to clause (5), the learned AttorneyGeneral points out at the outset that the word “reasonable” occur- ring in the clause qualifies “restrictions” and not “law'”.

It is argued that in applying the clause, all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or not and we have not to enquire into the reasonableness or otherwise of the law itself. The reasonableness of the restrictions can be judged,’ according to the learned Attorney-General, from the nature of the restrictions themselves and not from the manner in which or the authorities by which they are 532 imposed. The question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry.

I do agree that in clause (5) the adjective ‘reasonable’ is predicated of the restrictions that are imposed by law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restric- tions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent, and that it is beyond our province to look up to the circumstances under which or the manner in which the restrictions have been imposed. It is not possible to formulate an effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant cir- cumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. The question of reasonableness of the restric- tions imposed by a law may arise as much from the substan- tive part of the law as from its procedural portion. Thus, although I agree with the learned Attorney-General that the word “reasonable” in clause (5) of article 19 goes with “restrictions” and not with “law,” I cannot accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement.

Coming now to the provisions of the impugned Act, Mr. Baner- jee’s main contention is that section 4 (1) (c)of the East Punjab Public Safety Act, which provides for passing of orders removing a person from a particular area, on the satisfaction of the Provincial Government or the District Magistrate, cannot be a reasonable piece of legislation inasmuch as the only pre-requisite for imposition of the restrictions is the personal satisfaction of certain indi- viduals or authorities, the propriety or reasonableness of which cannot be tested by the application of any external rule or standard. It is said that any law which places the liberty 533 of a subject at the mercy of an executive officer, however high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers. The contention requires careful examination.

It is not disputed that under clause (5) of article 19, the reasonableness of a challenged legislation has to be determined by a Court and the Court decides such matters by applying some objective standard which is said to be the standard of an average prudent man. Judged by such standard which is sometimes described as an external yard-stick, the vesting of authority in particular officers to take prompt action under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily unreasonable. One has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders could be made. The object of the East Punjab Public Safety Act is to pro vide for special measures to ensure public safety and maintenance of public order.

Under section 4 (1) (c) of the Act, the Provincial Govern- ment or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order. Preventive orders by their very nature cannot be made after any judicial enquiry or trial. If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the inter- ests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility;

and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsi- bility of maintaining order and public peace in any particu- lar district or province. The preventive provisions of the Criminal Procedure Code are based on similar principle. In my opinion, therefore, the provision of section 4 (1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply because the order could be passed by the Provincial Government 534 or the District Magistrate on their own personal satisfac- tion and not on materials which satisfy certain objective tests.

But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description, the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the ag- grieved person an opportunity to say what he has got to say against the order. I have already set out the provisions of sub-section (3) of section 4 which deals with duration of the orders made under the various clauses of sub-section (1). It will be seen from this sub-section that there is absolutely no limit as to the period of time during which an externment order would remain in force if the order is made by the Provincial Government. The Provincial Government has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so.

As regards orders made by a District Magistrate, the period indeed has been fixed at three months, but even here the Provincial Government is competent to extend it to any length of time by means of a special order. The law does not fix any maximum period beyond which the order cannot continue; and the fact that the Act itself would expire in August, 1951, is, in my opinion, not a relevant matter for consideration in this connection at all. I have no hesi- tation in holding that the provision of sub-section (3) of section 4 is manifestly unreasonable and cannot be supported on any just ground. One could understand that the exigen- cies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their’ own personal satisfaction temporarily and for a short period of time; but if these orders are to continue indefi- nitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him.

There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an 535 impartial tribunal. The provision of the impugned Act which has bearing on this point is contained in sub-section (6) of section 4 and it runs as follows:

“When an order has been made in respect of any person under any of the clauses under section 4, sub-section (1), or sub-section (2) the grounds of it may be communicated to him by the authority making the order and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal, constituted under section 3, sub-section (4).” It will be noted that the first part of the subsection makes it entirely optional with the authorities to communi- cate the grounds, upon which the order is made, to the person affected by it. The grounds need not be communicated at all if the authorities so desire. As regards the right of representation the latter part of the sub-section seems to imply that when the order is to remain in force for more than three months, the right of representation should be given to the aggrieved person and the representation shall be referred for consideration to the advisory tribunal constituted under section 3, sub-section (4), of the Act.

The right, however, is purely illusory as would appear from the fact that even in cases where the order is to be opera- tive for more than three months, there is no obligation on the part of the authorities to communicate to the person the grounds upon which the order was made. The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation, if he is not told on what grounds the order was passed. In my opinion, this is an equally unreasonable provision and neither sub-section (3) nor sub-section (6) of section 4 of the Act can be said to have imposed restrictions which are reasonable in the inter- ests of the general public. My conclusion, therefore, is that under article 13 (1) of the Indian Constitution, these provisions of the Act became void and inoperative after the Constitution came into 536 force, and consequently the order made by the District Magistrate in the present case cannot stand.

I would, therefore, allow the application and quash the externment order that has been passed against the petition- er.

Petition dismissed.

Agent for the petitioner: Ganpat Rai.

Agent for the opposite party: P.A. Mehta.

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CITATION:
1951 AIR 41 1950 SCR 869
CITATOR INFO :

F 1951 SC 318 (19)
RF 1952 SC 59 (5)
F 1952 SC 75 (8,21,43,54,70)
RF 1952 SC 123 (45)
RF 1952 SC 252 (101,106)
E 1953 SC 215 (6)
F 1953 SC 404 (7)
R 1954 SC 92 (5)
D 1954 SC 119 (1)
E 1954 SC 314 (4)
F 1955 SC 74 (7)
R 1955 SC 191 (5)
R 1956 SC 20 (13)
F 1956 SC 246 (50,65)
E 1956 SC 479 (5)
F 1957 SC 503 (15,16)
R 1957 SC 877 (16)
D 1957 SC 927 (9)
E 1958 SC 538 (11,12,17)
RF 1958 SC 578 (211)
R 1958 SC 731 (15)
RF 1958 SC 956 (15)
R 1959 SC 648 (26)
RF 1959 SC 725 (11,12)
F 1960 SC 356 (8)
R 1960 SC 457 (9)
R 1960 SC 554 (9)
D 1960 SC1080 (28)
R 1962 SC 458 (21)
F 1962 SC1044 (5)
R 1963 SC 222 (22)
R 1963 SC 864 (27)
F 1963 SC1241 (84)
HO 1963 SC1811 (13,28,84,104,105,112)
RF 1965 SC 190 (4)
F 1970 SC 564 (16,54,78)
E 1970 SC2182 (7)
F 1971 SC1594 (7,8,9)
R 1971 SC1737 (45)
RF 1973 SC 106 (11)
RF 1973 SC1461 (227,265,2130)
RF 1973 SC2720 (9)
R 1974 SC 849 (10)
RF 1974 SC1389 (251)
R 1975 SC 583 (39)
R 1978 SC 327 (6)
F 1978 SC 597 (189)
F 1978 SC 771 (44)
R 1980 SC 161 (10)
RF 1983 SC 1 (168)
F 1983 SC 75 (5)
F 1984 SC 866 (4)
R 1984 SC1707 (17)
RF 1986 SC1370 (77,78)
R 1988 SC1487 (31)
RF 1991 SC 672 (33)
RF 1992 SC 1 (132,133)
R 1992 SC1277 (22,85,87,96)

ACT:

Sholapur Spinning and Weaving Company (Emergency Provi- sions) Act (XXVIII of 1950)–Act dismissing managing agents of a company, removing its directors, authorising Govern- ment to appoint new directors, and curtailing rights of shareholders in the matter of voting, etc.–Validity–Wheth- er infringes fundamental rights–Right not to be deprived of property save by authority of law–Right to acquire, hold and dispose of property–Right to equal protection of law–Constitution of India, Arts. 14, 19 (1) (f), 19(5), 1, 32–” Deprivation of property “, “Property., ,, acquisi- tion”, “taking possession., “equal protection “, meanings of–Right to apply under Art. 32–Corporation’s right to apply–Shareholders’ right.

Held per KANIA C.J., FAZL ALI, MUKHERJEA and DAS JJ.- (i) that the impugned Act did not infringe any fundamental right of the petitioner under Art. 31 (1), as if did not deprive the company or the petitioner of any property save under authority of law;

(ii) that the impugned Act did not infringe any fundamen- tal right guaranteed by Art. 31 (2.) inasmuch as it did not authorise the “acquisition” of any property of the company or of the shareholders or “the taking possession” of the property of the petitioner, namely, the shares which he held in the company, though he was disabled from exercising some of the rights which an ordinary shareholder in a company could exercise in respect of his shares, such as the right to vote, to appoint directors, and to apply for winding up;

and, if the Act had authorised the “taking possession” of the property of the company, the petitioner was not entitled to any relief on that score under Art. 32;

(iii) that, as the Act did not impose any restrictions on the petitioner’s right “to acquire, hold and dispose of” his shares, there was no infringement of Art. 19 (1) (f);

and assuming that the restrictions imposed on the right of voting etc. were restrictions on the right to acquire, hold or dispose of property within Art. 19 (1) (f), such restric- tions were reasonable restrictions imposed in the interests of the public, namely, to secure the supply of a commodity essential to the community and to prevent serious unemploy- ment amongst a section of the people, and were therefore completely protected by cl. (5) of Art. 19.

Held also per KANIA C.J., FAZL ALI, and MUKHERJEA JJ.

(PATANJALI SASTRI AND DAS JJ. dissenting).–that though the Legislature had proceeded against one company only and its shareholders, inasmuch as even one corporation or a group of persons can be taken to be class by itself for the purposes of legislation, provided there is sufficient basis or reason for it and there is a strong presumption in favour of the constitutionality/of an enactment, the burden was on the petitioner to prove that there were also other companies similarly situated and this company alone had been discrimi- nated against, and as he had failed to discharge this burden the impugned Act cannot be held to have denied to the peti- tioner the right to equal protection of the laws referred to in Art. He and the petitioner was not therefore entitled to any relief under Art. 32.

Per PATANJALI SASTRI J.–As the impugned Act plainly denied to the shareholders of this particular company the protections of the law relating to incorporated Joint Stock Companies as embodied in the Indian Companies Act. it was Prima facie within 871 the inhibition of Art. 14; and, even though when a law is made applicable to a class of persons or things and the classification is based on differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its applica- tion is found to affect only one person or thing. since the impugned Act selected a particular company and imposed upon it and its shareholders burdens and disabilities on the ground of mismanagement and neglect of duty on the part of those charged with the conduct of its undertaking no ques- tion of reasonable classification arose and the Act was plainly discriminatory in character and within the constitu- tional inhibition of Art. 14. Whilst all reasonable pre- sumptions must undoubtedly be made in favour of the consti- tutional validity of a law made competent legislature, no such presumption could be raised in this case as on the face of it the Act was discriminatory and the petitioner could not be called upon to prove that similar mismanagement existed in other companies. The issue was not whether the impugned Act was ill-advised or not justified by the facts on which it was based but whether it transgressed the ex- plicit constitutional restriction on legislative power imposed by Art. 14.

Per DAs J.–The impugned Act, ex facie, is nothing but an arbitrary selection of a particular company and its shareholders for discriminating and hostile treatment, and, read by itself, is palpably an infringement of Art. 14 of the Constitution. Assuming that mismanagement and neglect in conducting the affairs of a company can be a basis of classification and that such a classification would bear a reasonable relation to the conduct of all delinquent compa- nies and shareholders and may therefore create no inequali- ty, a distinction cannot be made between the delinquent companies inter se or between shareholders of equally delin- quent companies, and one set cannot he punished for its delinquency while another set is permitted to. continue, or become, in like manner, delinquent without any punishment unless there be some other apparent difference in their respective obligations and unless there be some cogent reason why prevention of mismanagement is more imperative in one instance than in the other. The argument that the pre- sumption being in favour of the Legislature, the onus is on the petitioner to show that there are other individuals or companies equally guilty of mismanagement prejudicially affecting the production of an essential commodity and causing serious unemployment amongst, certain section of the community does not, in such circumstances, arise, for the simple reason that here there has been no classification at all and, in any case, the basis of classification by its very nature is much wider and cannot, in its application, be limited only to this company and its shareholders; and that being so, there is no reason to throw on the petitioner the almost impossible burden of proving that there are other companies which are in fact precisely and in all particulars similarly situated. In any event the petitioner, 872 may well claim to have discharged the onus of showing that this company and its shareholders have been singled out for discriminating treatment by showing that the Act, on the face of it, has adopted a basis of classification which, by its very nature, cannot be exclusively applicable to this company and its shareholders but which may be equally ap- plicable to other companies and their shareholders and has penalised this particular company and its shareholders, leaving out other companies and their shareholders who may be equally guilty of the alleged vice of mismanagement and neglect of the type referred to in the preamble in the Ordinance.

Per PATANJALI SASTRI, MUKHERJEA and DAS JJ. (KANIA, C.J,, dubitante).–In so far as the petitioner’s rights as a shareholder were curtailed he was entitled to apply for relief under Art. 30, in his own right on the ground that the Act denied to him the equal protection of the laws and therefore contravened Art. 14 even though the other share- holders did not join him in the application.

Per MUKHERJEA J.–The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right, com- pels the inference that they are applicable only to natural persons. An incorporated company, therefore, can come up to the Supreme Court for enforcement of its fundamental rights and so may the individual shareholders to enforce their own;

but as the company and its shareholders are in law separate entities, it would not be open to an individual shareholder to complain of a law which affects the fundamental right of the company except to the extent that it constitutes an infraction of his own rights as well. In order to redress a wrong to the company the action should prima facie be brought by the company itself.

Article 32 of the Constitution is not directly concerned with the determination of the constitutional validity of particular enactments, what it aims at is the enforcement of fundamental rights guaranteed by the Constitution and to make out a case under the Article it is incumbent on the petitioner to establish not merely that the law complained of is beyond the competence of the Legislature but that it affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or order.

Under Art. 32 the Supreme Court has a very wide discre- tion in the matter of framing writs to suit the exigencies of particular cases and an application under the article cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for.

In the context in which the word “acquisition” is used in Art. 31 i2) it means and implies the acquiring of the entire title of the expropriated owner whatever the nature or extent of that right might be, 873 The guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. It means only that there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same.

Quaere : Whether the word “property” in Art. 31 means the totality of the rights which the ownership of the property connotes, and whether clause (1) of Art. 31 contem- plates only confiscation or destruction of property in exercise of what are known as police powers in American law for which no compensation is necessary.

DAS J.–The question whether an Act has deprived a person of his “property” must depend on whether it has taken away the substantial bulk of the rights constituting his property. Where the most important rights possessed by the shareholders of a company are still preserved by an Act even though certain privileges incidental to the ownership of the shares have been put in abeyance, the shareholders cannot be said to have been deprived of their “property” in the sense in which that word is used in Art. 19(1) (f) and Art. 31.

If on the face of the law there is no classification at all, or at any rate none on the basis of any apparent dif- ference specially peculiar to the individual or class af- fected by the law, it is only an instance of an arbitrary selection of an individual or class for discriminating and hostile legislation and, therefore, no presumption can, in such circumstances, arise at all- Assuming, however, that even in such a case the onus is thrown on the complainant, there can be nothing to prevent him from proving, if he can, from the text of the law itself, that it is actually and palpably unreasonable and arbitrary and thereby discharging the initial onus.

The right to vote, to elect directors, to pass resolu- tions and to present an application for winding up, are privileges incidental to the ownership of a share, but they are not by themselves apart from the share, “property” within the meaning of Art. 19 (1) (f) and Art. 31; and even assuming that they are “property” such rights cannot be said to have been acquired or taken possession of by the Govern- ment in this case within Art. 31 (2). The language of clause (1) of Art. 31 is wider than that of clause (2), for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it and in such a case no question payment of compensation arises.

FAZAL ALI MUKHERJEA and DAS JJ.–Except in the matter writs in the nature of habsas corpus no one but those whose rights are directly affected by a law can raise the question of the constitutionality of a law and claim relief under Art. 39. A corporation being a different entity from the shareholders, a 112 874 share-holder cannot complain on the ground that the rights of the company under Arts. 19 (1) (f) or 31 are infringed.

FAZL ALl J.–A classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must hear a reasonable and lust relation to the things in respect of which it is proposed. But the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles.

Though Art. 14 lays down an important fundamental ‘right, which should be closely and vigilantly guarded, a doctri- naire approach which might choke all beneficial legislation should not be adopted, in construing it. i A.K. Gapalan v. The State ([1950] S.C.R. 87), Minister of State for the Army v. Dalziel [1944] HCA 4; (68 C.L.R 261), Yick Wo v.

Hopkins (118 U.S. 356), Southern Railway Co. v. Greene [1910] USSC 60; (216 U.S. 400), Gulf C. & S.F. Co. Ellis [1897] USSC 15; (165 U.S. 150), Middle- ton v. Texas Power and Light & Co. [1919] USSC 58; (249 U.S. 152), Badice v.

New York (264 U.S. Pennsylvania Coal Co. v. Mahon (960 U.S.

3931, McCabe v. Archison [1914] USSC 252; (235 U.S. 151), Jeffrey Manufactur- ing Co. v. Blang (935 U.S. 571), Newark Natural Gas and Fuel Co. v. City of Nework U.S-403), Truax v. Raich (939 U.S.

33), Buchanan v. W’arley [1916] USSC 116; (245 U.S. 60) Darnell v. The State of Indiana (226 U.S. 388), Lindely v. Natural Carbonic Gas Co. (220 U.S. 618), and Barbier v. Connolly [1884] USSC 199; (113 U.S. 27) referred to.

ORIGINAL JURISDICTION: Petition No. 72 of 1950.

Petition under article 32 of the Constitution of India for a writ of mandamus.

V.K.T. Chari, J.S. Dawdo, Alladi Kuppuswami, and C.R.

Pattabhi Raman, for the petitioner.

M.C. Setalvad, Attorney-General for India (G. N. Joshi with him) for opposite party Nos. 1 and 2.

G.N. Joshi, for opposite party Nos. 3 to 5 and 7 to 10.

1950. December 4. The Court delivered Judgment as follows.

KANIA C.J.–This is an application by the holder of one ordinary share of the Sholapur Spinning and Weaving Company Ltd. for a writ of mandamus and certain other reliefs under article 32 of the Constitution of India. The authorized capital of the company is Rs. 48 lakhs and the paid-up capital is Rs. 32 lakhs, half of which is made up of fully paid ordinary shares of Rs. 1,000 each.

875 I have read the judgment prepared by Mr. Justice Mukher- jea. In respect of the arguments advanced to challenge the validity of the impugned Act under articles 31 and 19 of the Constitution of India, I agree with his line of reasoning and conclusion and have nothing more to add.

On the question whether the impugned Act infringes article 14, two points have to be considered. The first is whether one individual shareholder can, under the circum- stances of the case and particularly when one of the re- spondents is the company which opposes the petition, chal- lenge the validity of the Act on the ground that it is a piece of discriminatory legislation, creates inequality before the law and violates the principle of equal protec- tion of the laws under article 14 of the Constitution of India. The second is whether in fact the petitioner has shown that the Act runs contrary to article 14 of the Con- stitution. In this case having regard to my conclusion on the second point, I do not think it is necessary to pro- nounce a definite opinion on the first point. I agree with the line of reasoning and the conclusion of Mr. Justice Mukherjea as regards the second point relating to the inva- lidity of the Act on the ground that it infringes article 14 of the Constitution and have nothing more to add.

In my opinion therefore this petition fails and is dismissed with costs.

FAZL- ALI J.–I am strongly of the opinion that this peti- tion should be dismissed with costs.

The facts urged in the petition and the points raised on behalf of the petitioner before us are fully set forth in the judgments of my brethren, Sastri, Mukherjea and Das JJ., and I do not wish to repeat them here. It is sufficient to say that the main grounds on which the Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 (Act No. XXVIII of 1950), which will hereinafter be referred to as “the Act”, has been assailed, is that it infringes three fundamental rights, these being:– 876 (1) the right to property secured by article 31 of the Constitution;

(2) the right to acquire, hold and dispose of property, guaranteed to every citizen by article 19 (1) (f); and (3) the right to equal protection of the laws, guaran- teed by article 14.

It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. This principle has been very clearly stated by Hughes J. in McCabe v. Atchison(1), in these words :—“It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainant’s need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant — not to others–which justifies judicial interference.” On this statement of the law, with which I entirely agree, the scope of the discussion on this petition is greatly restricted at least in regard to the first two fundamental rights. The company and the shareholders are in law separate entities, and if the allegation is made that any property belonging to the company has been taken possession of without compensa- tion or the right enjoyed by the company under article 19 (1) (f) has been infringed, it would be for the company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so. In this view, the only question which has to be answered is whether the peti- tioner has succeeded in showing that there has been an infringement of his rights as a shareholder under articles 31 and 19 (1) (f) of the Constitution. This question has been so elaborately dealt with by Mukherjea J., that I do not wish to add anything to what he has said in his judg- ment, and all that is necessary for me to say is that I adopt his conclusions, (1) 235 u.s. 151.

877 without committing myself to the acceptance of all his reasonings.

The only serious point, which in my opinion, arises in the case is whether article 14 of the Constitution is in any way infringed by the impugned Act. This article corresponds to the equal protection clause of the Fourteenth Amendment of the Constitution of the United States of America, which declares that “no State shall deny to any person within its jurisdiction the equal protection of the laws”. Professor Willis dealing with this clause sums up the law as prevail- ing in the United States in regard to it in these words:– “Meaning and effect of the guaranty–The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. ‘It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and condi- tions both in the privileges conferred and in the liabili- ties imposed.’ ‘The inhibition of the amendment …. was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation’. It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis.

Mathematical nicety and perfect equality are not required.

Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.”(‘) Having summed up the law in this way, the same learned author adds :–“Many different classifications (1) Constitutional Law by Prof. Willis, (1st Edition).

p.579.

878 of persons have been upheld as constitutional. A law apply- ing to one person or one class of persons is constitutional if there is sufficient basis or reason for it.” There can be no doubt that article 14 provides one of the most valuable and important guarantees in the Constitution which should not be allowed to be whittled down, and, while ac- cepting the statement of Professor Willis as a correct exposition of the principles underlying this guarantee, 1 wish to lay particular emphasis on the principle enunciated by him that any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed.

The petitioner’s case is that the shareholders of the Sholapur company have been subjected to discrimination visa vis the shareholders of other companies, inasmuch as section 13 of the Act subjects them to the following disabilities which the shareholders of other companies governed by the Indian Companies Act are not subject to:-:

“(a) It shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company.

(b) No resolution passed at any meeting of the share- holders of the company shall be given effect to unless approved by the Central Government.

(c) No proceeding for the winding up of the company or for the appointment of a receiver in respect thereof shall lie in any court unless by or with the sanction of the Central Government.” Primafacie, the argument appears to be a plausible one, but it requires a careful examination, and, while examining it, two principles have to be borne in mind :–(1) that a law may be constitutional even though it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applica- ble to others, 879 that single individual may be treated as a class by himself;

(2) that it is the accepted doctrine of the American courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. A clear enunciation of this latter doctrine is to be found in Middleton v. Texas Power and Light Company(1), in which the relevant passage runs as follows :– “It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.” The onus is therefore on the petitioner to show that the legislation which is impugned is arbitrary and unreasonable and there are other companies in the country which should have been subjected to the same disabilities, because the reasons which led the Legislature to impose State control upon the Sholapur company are equally applicable to them.

So far as article 14 is concerned, the case of the share- holders is dependent upon the case of the company and if it could be held that the company has been legitimately sub- jected to such control as the Act provides without violation of the article, that would be a complete answer to the petitioner’s complaint.

Now, the petitioner has made no attempt to discharge the burden of proof to which I have referred, and we are merely asked to presume that there must necessarily be other compa- nies also which would be open to the charge of mismanagement and negligence. The question cannot in my opinion be treated so lightly. On the other hand, how important the doctrine of burden of proof is and how much harm can be caused by ignor- ing it or tinkering with it, will be fully illustrated, by referring to the proceedings in the Parliament in connec- tion with the enactment of the (1) 248 U.S. 1152,157.

880 Act, where the circumstances which necessitated it are clearly set out. I am aware that legislative proceedings cannot be referred to for the purpose of construing an Act or any of its provisions, but I believe that they are relevant for the proper understanding of the circumstances under which it was passed and the reasons which necessitat- ed it.

A reference to the Parliamentary proceedings shows that some time ago, a representation was made on behalf of a section of the shareholders of the Sholapur company to the Registrar of Joint Stock Companies in Bombay, against the conduct of the managing agents, and the Government of Bombay was moved to order a special inquiry into the affairs of the company. For the purpose of this inquiry, two special inspectors were appointed by the Bombay Government and their report revealed “certain astounding facts” and showed that the mill had been grossly mismanaged by the Board of Direc- tors and the managing agents. It also revealed that the persons who were responsible for the mismanagement were guilty of certain acts and omissions which brought them under the purview of the law. The Bombay Government accept- ed the report of the inspectors and instructed the Advocate General of Bombay to take legal proceedings against certain persons connected with the management of the company.

Thereafter, the Government of India was approached by the Provincial Government and requiested to take special action in order to secure the early opening of the mill. The Government of India found that they had no power to take over the management of a particular mill, unless its working could be ensured through the existing management acting under the direction of a Controller appointed under the Essential Supplies Act, but they also found that a peculiar situation had been created in this case by the managing agents themselves being unable or unwilling to conduct the affairs of the company in a satisfactory and efficient manner. The Government of India, as a matter of precaution and lest it should be said that they were going to interfere unnecessarily in the affairs 881 of the company and were not allowing the existing provisions of the law to take their own course, consulted other inter- ests and placed the matter before the Standing Committee of the Industrial Advisory Council where a large number of leading industrialists of the country were present, and ultimately it was realized that this was a case where the Government could rightly and properly intervene and there would be no occasion for any criticism coming from any quarter. It appears from the discussion on the floor of the House that the total number of weaving and spinning mills which were closed down for one reason or other was about 35 in number. Some of them are said to have closed for want of cotton, some due to overstocks, some for want o[ capital and some on account of mismanagement. The Minister for Indus- try, who sponsored the Bill, in explaining what distin- guished the case of the Sholapur mill from the other mills against whom there might be charges of mismanagement, made it clear in the course of the debate that “certain condi- tions had to be fulfilled before the Government can and should intervene”, and he set out these conditions as fol- lows :– “(1) The undertaking must relate to an industry which is of national importance. Not each and every undertaking which may have to close down can be taken charge of tempo- rarily by Government.

(2) The undertaking must be an economic unit. If it appears that it is completely uneconomic and cannot be managed at all, there is no sense in Government taking charge of it. If anything, it will mean the Government will have to waste money which belongs to the taxpayer on an uneconomic unit.

(3) There must be a technical report as regards the condition of the plants, machinery, etc. which either as they stand, or after necessary repairs and reconditioning can be properly utilised.

(4) Lastly,–and this is of considerable importance- there must be a proper enquiry held before Government take any action. The enquiry should show that 113 882 managing agents have so misbehaved that they are no longer fit and proper persons to remain in charge of such an impor- tant undertaking.”(1) It appears from the same proceedings that the Sholapur mill is one of the largest mills in Asia and employs 13,000 workers. Per shift, it is capable of producing 25 to 30 thousand pounds of yarn, and also one lakh yards of cloth.

It was working two shifts when it was closed down on the 29th August, 1949. The closure of the mill meant a loss of 25 lakhs yards of cloth and one and a half lakhs pounds of yarn per month. Prior to 1947, the highest dividend paid by the company was Rs. 525 per share and the lowest Rs. 100, and, in 1948, when the management was taken over by the managing agents who have been removed by the impugned Act, the accounts showed a loss of Rs. 30 lakhs, while other textile companies had been able to show very substantial profits during the same period.

Another fact which is brought out in the proceedings is that the. managing agents had acquired control over the majority of the shares of the company and a large number of shareholders who were dissatisfied with the management had been rendered powerless and they could not make their voice heard. By reason of the preponderance of their strength, the managing agents made it impossible for a controller under the Essential Supplies Act to function and they also made it difficult for the company to run smoothly under the normal law.

It was against this background that the Act was passed, and it is evident that the facts which were placed before the Legislature with regard to the Sholaput mill were of an extraordinary character. and fully justified the company being treated as a class by itself. There were undoubtedly other mills which were open to the charge of mismanagement, but the criteria adopted by the Government which, in my opinion, cannot be said to be arbitrary or unreasonable, is not applicable (1) parliamentary Debates, Volume III, No. 14; 31st March 1950, pp.2394 5 883 to any of them. As we have seen, one of the criteria was that a mere allegation of mismanagement should not be enough and no drastic step such as is envisaged in the Act should be taken without there being a complete enquiry. In the case of the Sholapur mill, a complete enquiry had been made and the revelations which were made as a result of such enquiry were startling.

We are familiar with the expression “police power” which is in vogue in the United States of America. This expression simply denotes that in special cases the State can step in where its intervention seems necessary and impose special burdens for general benefit. As one of the judges has pointed out, “the regulations may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good.”(1) It need not be emphasized that the principles underlying what is known as police power in the United States of America are not peculiar to that country, but are recognized in every modern civilized State.

Professor Willis dealing with the question of classification in exercise of police power makes the following observa- tions:

“There is no rule for determining when classification for the police power is reasonable. It is a matter for judicial determination, but in determining the question of reasonableness the Courts must find some economic, political or other social interest to be secured, and some relation of the classification to the objects sought to be accomplished.

In doing this the Courts may consider matters of common knowledge, matters o[ common report, tile history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time Of legislation. The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of the laws. For such (1) Per Field J. in Barbier v. Connally. [1884] USSC 199; 113 U S. 27.

884 proof it must be shown that there is no reasonable basis for the classification.” In this particular case, the Government initially took control of the Sholapur Company by means of an Ordinance (Ordinance No. II of 1950), of which the preamble runs as follows :- “Whereas on account of mismanagement and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially af- fected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community;

And whereas an emergency has arisen which renders it necessary to make special provision for the proper manage- ment and administration of the aforesaid Company;

Now, therefore,…………………… ” In the course of the Parliamentary debate, reference was made to the fact that the country was facing an acute cloth shortage, and one of the reasons which apparently influenced the promulgation of the Ordinance and the passing of the Act was that the mismanagement of the company had gravely affected the production of an essential commodity. The facts relating to the mismanagement of this mill were care- fully collected and the mischief caused by the sudden clos- ing of the mill to the shareholders as well as to the gener- al public were fully taken into consideration. Therefore, it seems to me that to say that one particular mill has been arbitrarily and unreasonably selected and subjected to discriminatory treatment, would be an entirely wrong propo- sition.

Article 14 of the Constitution, as already stated, lays down an important fundamental right, which should be closely and vigilantly guarded, but, in construing it, we should not adopt a doctrinaire approach which might choke all benefi- cial legislation.

The facts to which I have referred are to be found in a public document, and, though some of them may (1) Constitutional Law by Prof. Willis (1st Edition) p. 580.

885 require further investigation forming as they do part of a one-sided version, yet they furnish good prima, facie grounds for the exercise of the utmost caution in deciding this case and for not departing from the ordinary rule as to the burden of proof. In the last resort, this petition can be disposed of on the simple ground that the petitioner has not discharged the onus which lies upon him, and I am quite prepared to rest my judgment on this ground alone.

I think that the petitioner has failed to make out any case for granting the writs or directions asked for, and the petition should therefore be dismissed with costs.

PATANJALI SASTRI J.–This is an application under article 32 of the Constitution seeking relief against alleged infringe- ment of certain fundamental rights of the petitioner.

The petitioner is a shareholder of the Sholapur Spinning and Weaving Company, Limited, Sholapur, in tim State of Bombay, (hereinafter referred to as “the Company “). The authorised share capital of the Company consisted of 1590 fully paid up ordinary shares of Rs. 1,000 each, 20 fully paid up ordinary shares of Rs. 500 each and :32,000 partly paid up redeemable cumulative preference shares of Rs. 100 each, of which Rs. 50 only was paid up. Of these, the petitioner held one ordinary share in his own name and 80 preference shares which, however, having been pledged with the Bank of Baroda Ltd., now stand registered in the Bank’s name.

The company was doing flourishing business till disputes arose recently between the management and the employees, and in or about August, 1949, the mills were temporarily closed and the company, which was one of the largest producers of cotton textiles, ceased production. Thereupon, the Gover- nor-General intervened by promulgating on the 9th January, 1950, an Ordinance called the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance (No. II’ of 1950), which empowered tim Government of India to 886 take over the control and management of the company and its properties and effects by appointing their own Directors and to delegate all or any of their powers to the Provincial Government. In exercise of the powers thus delegated, the Government of Bombay appointed respondents 3 to 9 as Direc- tors to take charge of the management and administration of the properties and affairs of the company. Subsequently, on 10th April, ‘1950, the Ordinance was repealed and was re- placed by an Act of Parliament containing similar provisons, namely the Sholapur Spinning and Weaving Company (Emergency Provisions) Act (No. XXVIII of 1950) (hereinafter referred to as the “impugned Act”).

The petitioner complains that the impugned Act and the action of the Government of Bombay pursuant thereto have infringed the fundamental rights conferred on him by arti- cles 11, 19 and 31 of the Constitution with the result that the enactment is unconstitutional and void, and the inter- ference by the Government in the affairs of the company is unauthorised and illegal. He accordingly seeks relief by way of injunction and mandamus against the Union of India and the State of Bombay impfended as respondents 1 and 2 respec- tively in these proceedings and against respondents a to 9 who are now in management as already stated. The company is irapleaded proforma as the 10th respondent.

Before discussing the issues involved, it is necessary to examine the relevant provisions of the impugned Act in order to see in what manner and to what extent the petition- er’s rights have been affected thereby. The preamble to the repealed Ordinance stated that “on account of mis- management and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially affected the production of an essen- tial commodity and has caused serious unemployment amongst a certain section of the community and that an emergency has arisen which renders it necessary to make special provi- sion for the proper management and administration of the aforesaid 887 Company.” This preamble was not reproduced in the impugned Act. Section a empowers the Central Government to appoint as many persons as it thinks fit to be directors of the company “for the purpose of taking over its management and administration.” Section 4 states the effect of the order appointing directors to be that (1) the old directors shall be deemed to have vacated their office, (2) the contract with the managing agents shall be deemed to have been termi- nated, (3) that the properties and effects of the company shall be deemed to be in the custody of the new directors who are to be “for all purposes” the directors of the compa- ny and “shall alone be entitled to exercise all the powers of the directors of the company whether such powers are derived from the Companies Act or from the memorandum or articles of association or otherwise.” Section 5 defines the powers of the new directors. They are to manage the busi- ness of the company “subject to the control of the Central Government” and shall have the power to raise funds offering such security as they think fit, to carry out necessary repairs to the machinery or other property in their custody and to employ the necessary persons and define the necessary conditions of their service. Section 12 provides for the restoration of the management to directors nominated by the shareholders when the purpose of the Government’s interven- tion has been fulfilled. Section 13 is important and reads thus: “13. Application of the Companies Act.–(1) Notwith- standing anything contained in the Companies Act or in the memorandum or articles of association of the company (a) it shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company; (b) no resolution passed at any meeting of the shareholders of the company shall ‘be given effect to unless approved by the Central Government; (c) no proceeding for the winding up of the company or for the appointment of a receiver in respect, thereof shall lie in any Court unless by or with the sanction of the Central Government. (2) Subject.

888 to the provisions contained in sub-section (1) and to the other provisions of this Act. and subject to such excep- tions, restrictions and limitations as the Central Govern- ment may, by notified order, specify, the Companies Act shall continue to apply to the company in the same manner as it applied thereto before the issue of the notified order under section 3.” By section 14 the provisions of the Act are to have effect “notwithstanding anything inconsistent therewith contained in any other law or in any instrument having effect by virtue of any law other than this Act.” Section 16 provides for delegation of powers to the Govern- ment of Bombay to be exercised subject to the directions of the Central Government, and section 17 bars suits or other proceedings against the Central Government or the Government of Bombay or any director “for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act.” As a result of these provisions all the properties and effects of the company passed into the absolute power and control of the Central Government or its delegate the Gov- ernment of Bombay, and the normal functioning of the company as a corporate body came to an end. The shareholders have been reduced to the position of interested, if helpless, onlookers while the business is carried on against their will and, may be, to their disadvantage by the Government’s nominees. The declared purpose of this arrangement was, according to the Preamble of the repeated Ordinance to keep up the production of an essential commodity and to avert serious unemployment amongst a certain section of the commu- nity.

The question accordingly arises whether the impugned Act. which thus affects the petitioner and his co-sharehold- ers, while leaving untouched the shareholders of all other companies, including those engaged in the production of essential commodities, denies to the petitioner the equal protection of the laws under article 14 of the Constitution.

The correct approach to 889 this question is first to see what rights have been con- ferred or protection extended to persons similarly situated.

The relevant protection is to be found in the provisions of the Indian Companies Act which regulates the rights and obligations of the shareholders of incorporated companies in India. Section 21 of the Act assures to the shareholders the protection of the stipulations contained in the memoran- dum and articles of association by constituting. them a binding contract, so that neither the company nor the share- holders have the power of doing anything inconsistent there- with. The basic right of the shareholders to have their undertaking managed and conducted by the directors of their own choice is ensured by section 83B. Their right to exer- cise control and supervision over the management by the directors by passing resolutions at their general meeting is regulated by various provisions of the Act. The important safeguard of winding up the company in certain unfavourable circumstances either through court or by the shareholders thems elves voluntarily is provided for in sections 162 and 203. All these rights and safeguards, on the faith of which the shareholders embark their money in their undertaking, are abrogated by the impugned Act in the case of the share- holders of this company alone. In fact, the Central Govern- ment is empowered to exclude, restrict or limit the opera- tion of any of the provisions of the Companies Act in rela- tion to this company. It is thus plain that the impugned Act denies to the shareholders of this particular company the protection of the law relating to incorporated joint stock companies in this country is embodied in the Companies Act and is primafacie within the inhibition of article 14.

It is argued, however, that article 14 does not make it incumbent on the Legislature always to make laws applicable to all persons generally, and that it is open to the Legis- lature ‘to classify persons and things and subject them to the operation of a particular law according to the aims and objects which that law is designed to secure. In the present case, Parliament, 114 890 it was said, came to the conclusion, on the materials placed before them, that the affairs of the company were being grossly mismanaged so as to result in the cessation of production of an essential commodity and serious unemploy- ment amongst a section of the community. In view if the detriment thus caused to public economy, it was competent for Parliament to enact a measure applicable to this company and its shareholders alone, and Parliament must be the judge as to whether the evil which the impugned Act was designed to remedy prevailed to such an extent in this company as to call for special legislation. Reliance was placed in support of this argument on certain American decisions dealing with the equal protection clause of the Fourteenth Amendment of the Federal Constitution. It is, however, unnecessary to discuss those decisions here, for it is undeniable that equal protection of the laws cannot mean that all laws must be quite general in their character and application.’ A legislature empowered to make laws on a wide range of sub- jects must of necessity have the power of making special laws to attain particular objects and must, for that pur- pose, possess large powers of distinguishing and classifying the persons or things to be brought under the operation of such laws, provided the basis of such classification has a just and reasonable relation to the object which the legis- lature has in view. While, for instance, a classification in a law regulating labour in mines or factories may be based on age or sex, it may not b`e based on the colour of one’s skin. It is also true that the class of persons to whom a law is made applicable may be large or small, and the degree of harm which has prompted the enactment of a particular law is a matter within the discretion of the law-makers. It is not the province of the court to canvass the legislative judgment in such matters. But the issue here is not whether the impugned Act was ill-advised or not justified by the facts on which it was based, but whether it transgresses the explicit constitutional restriction on legislative power imposed by article 14.

891 It is obvious that the legislation is directed solely against a particular company and shareholders and not against any class or category of companies and no question, therefore, of reasonable legislative classification arises.

If a law is made applicable to a class of persons or things and the classification is based upon differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing.

For instance, a law may be passed imposing certain restric- tions and burdens on joint stock companies with a share capital of, say, Rs. 10 crores and upwards, and it may be found that there is only one such company for the time being to which the law could be applied. If other such companies are brought into existence in future the law would apply to them also, and no discrimination would thus be involved.

But the impugned Act, which selects this particular company and imposes upon it and its shareholders burdens and disa- bilities on the ground of mismanagement and neglect of duty on the part of those charged with the conduct of its under- taking, is plainly discriminatory in character and is, in my judgment, within the constitutional inhibition of article

14. Legislation based upon mismanagement or other miscon- duct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think, receive judi- cial encouragement.

It was next urged that the burden of proving that the impugned Act is unconstitutional lay on the petitioner, and that, inasmuch as he has failed to adduce any evidence to show that the selection of this company and its shareholders for special treatment under the impugned Act was arbitrary, the application must fail. Whilst all reasonable pre- sumption must undoubtedly be made in support of the consti- tutional validity of a law made by a competent legislature, the circumstances of the present case would seem, to my 892 mind to exclude such presumption. Hostile discrimination is writ large over the face of the impugned Act and it dis- closes no grounds for such legislative intcrvcntion. For all that appears no compelling public intercsts were involved.

Even the preamble to the original Ordinance was omitted.

Nor did respondents 1 and 2 file any counter-statement in this proceeding explaining the circumstances which led to the enactment of such an extraordinary measure. There is thus nothing in the record even by way of allegation which the petitioner need take steps to rebut. Supposing, howev- er, that the impugned Act was passed on the same grounds as were mentioned in the preamble to the repealed Ordinance, namely, mismanagement and neglect prejudicially affecting the production of an essential commodity and -causing seri- ous unemployment amongst a section of the community, the petitioner could hardly be expected to assume the burden of showing, not that the company’s affairs were properly man- aged, for that is not his case, but that there were also other companies similarly mismanaged, for that is what, according to the respondents, he should prove in order to rebut the presumption of constitutionality. In other words, he should be called upon to establish that this company and its shareholders were arbitrarily singled out for the impo- sition of the statutory disabilities. How could the peti- tioner discharge such a burden ? Was he to ask for an inves- tigation by the Court of the affairs of other industrial concerns in India where also there were strikes and lock outs resulting in unemployment and cessation of production of essential commodities? Would these companies be willing to submit to such an investigation ? And even so, how is it possible to prove that the mismanagement and neglect which is said to have prompted the legislation in regard to this company was prevalent in the same degree in other companies ? In such circumstances, to cast upon the petitioner a burden of proof which it is as needless for him to assume as it is impracticable to discharge is to lose sight of the realities of the case.

893 Lastly, it was argued that the constitutionality of a statute could not be impugned under article 32 except by a person whose rights were infringed by the enactment. and that, inasmuch as there was no infringement of the individ- ual right of a shareholder, even assuming that there was an injury to the company as a corporate body, the petitioner was not entitled to apply for relief under that article.

Whatever validity the argument may have in relation to the petitioner’s claim based on the alleged invasion of his right of property under article 31, there can be little doubt that, so far as his claim based on the contravention of article 14 is concerned, the petitioner is entitled to relief in his own right As has been pointed out already, the impugned Act deprives the shareholders of the company of important rights and safeguards which are enjoyed by the shareholders of other joint stock companies in Indian under the Indian Companies Act. The petitioner is thus denied the equal protection of the laws in his capacity as a sharehold- er, and none the less so because the other shareholders of the company are also similarly affected. The petitioner is thereled to seek relief under article 32 of the Constitu- tion.

In this view it becomes unnecessary to consider the questions raised under articles 19 and 31 of the Constitu- tion.

In the result]t, I would allow the application.

MUKHERJEA J.–This is an application presented by one Chiranjitlal Chowdhuri, a shareholder of the Sholapur Spinning and Weaving Company Limited (hereinafter referred to as the company), praying for a writ of mandamus and certain other reliefs under article 32 of the Constitution.

The company, which has its registered office within the State of Bombay and is governed by the provisions of the Indian Companies Act, was incorporated with an authorised capital of Rs. 48 lakhs divided into 1590, fully paid up ordinary shares of Rs. 100 each, 20 fully paid up ordinary shares of Rs. 500 each and 32,000 partly paid up cumulative preference shares of Rs. 100 each. The 894 present paid up capital of the company is Rs. 32 lakhs half of which is represented by the fully paid up ordinary shares and the other half by the partly paid up cumulative prefer- ence shares. The petitioner states in his petition that he holds in his own right three ordinary shares and eighty prefercnce shares in the company, though according to his own admission the ,preference shares do not stand in his name but have been registered in the name of the Baroda Bank Limited with which the shares are pledged. According to the respondents, the petitioner is the registered holder of one single ordinary share in the company.

It appears that on July 27, 1949, the directors of the company gave a notice to the workers that the mills would be closed, and pursuant to that notice, the mills were in fact closed on the 27th of August following. On January 9, 1950, the Governor-General of India promulgated an Ordinance which purported to make special provisions for the proper man- agement and administration of the company. It was stated in the preamble to the Ordinance that “on account of mis- management and neglect, a situation has arisen in the af- fairs of the Sholapur Spinning and Weaving Company Limited which has prejudicially affected the production of an essen- tial commodity and has caused serious unemployment amongst a certain section of the community “, and it was on account of the emergency arising from this situation that the promulga- tion of the Ordinance was necessary. The provisions of the Ordinance, so far as they are material for our present purpose, may be summarised as follows:

Under section 3 of the Ordinance, the Central Government may, at any time, by notified order, appoint as many persons as it thinks fit, to be directors of the company for the purpose of taking over its management and administration and may appoint one of such directors to be the Chairman.

Section 4 provides that on the issue of a notified order under section 3 all the directors of the company holding office as such immediately before the issue of the order shall be deemed to have vacated their offices. and any existing 895 contract of management between the company and any managing agent thereof shall be deemed to have terminated. The directors thus appointed shall be for all purposes the directors of the company duly constituted under the Compa- nies Act and shall alone be entitled to exercise all the powers of the directors of the company. The powers and the duties of the directors are specified in section 5 and this section inter alia empowers the directors to vary or cancel, with the previous sanction of the Central Government, any contract or agreement entered into between the company and any other person if they are satisfied that such contract or agreement is detrimental to the interests of the company.

Section 10 lays down that no compensation for premature termination of any contract could be claimed by the managing agent or any other contracting party. It is provided by section 12 that so long as the management by the statutory directors continues, the shareholders would be precluded from nominating or appointing any person to be a director of the company and any resolution passed by them will not be effective unless it is approved by the Central Government.

This section lays down further that during this period no proceeding for winding up of the company, or for appointment of a receiver in respect thereof could be instituted in any court, unless it is sanctioned by the Central Government, and the Central Government would be competent to impose any restrictions or limitations as regards application of the provisions of the Indian Companies Act to, be affairs of the company. The only other material provision is that contained in section 15, under which the Central Government may, by notified order, direct that all or any of the powers exercisable by it under this Ordinance may be exercised by the Government of Bombay.

In accordance with the provisions of section 15 men- tioned above, the Central Government, by notification issued on the same day that the Ordinance was promulgated, delegat- ed all its powers exercisable under the Ordinance to the Government of Bombay, 896 On the next day, the Government of Bombay appointed respond- ents 3 to 7 as directors of the company in terms of section 3 of the Ordinance. On the 2nd of March, 1950, the re- spondent No. 9 was appointed a director and respondent No.

5 having resigned his office in the meantime, the re- spondent No. 8 was appointed in his place. On the 7th of April, 1950, the Ordinance was repealed and an Act was passed by the Parliament of India, known as the Sholapur Spinning and Weaving Company (Emergency Provisions)Act which re-enacted almost in identical terms all the provisions of the Ordinance and provided further that all actions taken and orders made under the Ordinance shall be deemed to have been taken or made under the corresponding provisions of the Act. The preamble to the Ordinance was not however repro- duced in the Act.

The petitioner in his petition has challenged the con- stitutional validity of both the Ordinance and the Act. As the Ordinance is no longer in force and all its provisions have been incorporated in the Act, it will not be necessary to deal with or refer to the enactments separately. Both the Ordinance and the Act have been attacked on identical grounds and it is only necessary to enumerate briefly what these grounds are.

The main ground put forward by the petitioner is that the pith and substance of the enactments is to take posses- sion of and control over the mills of the company which are its valuable assets and such taking of possession of proper- ty is entirely beyond the powers of the Legislature. ‘The provisions of the Act, it is said, amount to deprivation of property of the shareholders as well as of the company within the meaning of article 31 of the Constitution and the restrictions imposed on the rights of the shareholders in respect to the shares held by them constitute an unjustifia- ble interference with their rights to hold property and as such are void under article 19 (1) (f). It is urged that there was no public purpose for which the Legislature could authorise the taking possession or acquisition of 897 property and such acquisition or taking of possession with- out payment of compensation is in violation of the funda- mental rights guaranteed by article 31 (2) of the Constitu- tion. It is said further that the enactment denies to the company and its shareholders equality before the law. and equal protection of laws and thus offends against the provi- sions of article 14 of the Constitution. The only other material point raised is that the legislation is beyond the legislative competency of the Parliament and is not covered by any of the items in the legislative lists.

On these allegations, the petitioner prays, in the first instance. that it may be declared that both the Act and the Ordinance are ultra vires and void and an injunction may be issued restraining the respondents from exercising any of the powers conferred upon them by the enactments. The third and the material prayer is for issuing a writ of mandamus, “restraining the respondents 1 to 9 from exercising or purporting to exercise any powers under the said Ordinance or Act and from in any manner interfering with the manage- ment or affairs of the company under colour of or any pur- ported exercise of any powers under the Ordinance or the Act,” The other prayers are not material for our purpose.

Before I address myself to the merits of this applica- tion it will be necessary to clear up two preliminary matters in respect to which arguments were advanced at some length from the Bar. The first point relates to the scope of our enquiry in the present case and raises the question as to what precisely are the matters that have to be inves- tigated and determined on this application of the petition- er. The second point relates to the form of relief that can be prayed for and granted in a case of this description.

Article 32 (1) of the Constitution guarantees to every- body the right to move this court, by appropriate proceed- ing, for enforcement of the fundamental rights which are enumerated in Part 1II of the Constitution. Clause (2) of the article lays down that the 115 898 Supreme Court shall have the power 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 rights conferred by this part.

Thus anybody who complains of infraction of any of the fundamental rights guaranteed by the Constitution is at liberty to move the Supreme Court for the enforcement of such rights and this court has been given the power to make orders and issuue directions or writs similar in nature to the prerogative writs of English law as might be considered appropriate in particular cases. The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right compels the inference that they are applicable only to natural persons. An incorporated company, there- fore, can come up to this court for enforcement of its fundamental rights and so may the individual shareholders to enforce their own; but it would not be open to an individual shareholder to complain of an Act which affects the funda- mental rights of the company except to the extent that it constitutes an infraction of his own rights as well. This follows logically from the rule of law that a corporation has a distinct legal personality of its own with rights and capacities, duties and obligations separate from those of its individual members. As the rights are different and inhere in different legal entities, it is not competent to one person to seek to enforce the rights of another except where the law permits him to do so. A well known illustra- tion of such exception is furnished by the procedure that is sanctioned in an application for a writ of habeas corpus.

Not only the man who is imprisoned or detained in confine- ment but any person, provided he is not an absolute stranger, can institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment.

899 The application before us under article 32 of the Con- stitution is on behalf of an individual shareholder of the company. Article 32, as its provisions show,. is not di- rectly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the legislature. To make out a case under this article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitu- tion, of which he could seek enforcement by an appropriate writ or order. The rights that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains I of infraction of such rights and approaches the court for relief. This being the position, the proper subject of our investigation would be what rights, if any, of the petitioner as a shareholder of the company have been violated by the impugned legislation. A discussion of the fundamental rights of the company as such would be outside the purview of our enquiry. It is settled law that in order to redress a wrong done to the company, the action should prima facie be brought by the company itself. It cannot be said that this course is not possible in the circumstances of the present case. As the law is alleged to be unconstitutional, it is open to the old directors of the company who have been ousted from their position by reason of the enactment to maintain that they are directors still in the eye of law, and on that footing the majority of shareholders can also assert ‘the rights of the company as such. None of them, however, have come forward to institute any proceeding on behalf of the compa- ny. Neither in form nor in substance does the present application purport to be one made by the company itself.

Indeed, the company 900 is one of the respondents, and opposes the petition.

As regards the other point, it would appear from the language of article 32 of the Constitution that. the sole object of the article is the enforcement of fundamental rights guaranteed by the Constitution. A proceeding under this article cannot really have any affinity to what is known as a declaratory suit. The first prayer made in the petition, n seeks relief in the shape of a declaration that the Act is invalid and is apparently inappropriate to an application under article 32; while the second purports to be framed for a relief by way of injunc- tion consequent upon the first. As regards the third pray- er, it has been contended by Mr. Joshi, who appears for one of the respondents, that having regard to the nature of the case and the allegations made by the petitioner himself, the prayer for a writ of mandamus, in the form in which it has been made, is not tenable. What is argued is that a writ of mandamus can be prayed for, for enforcement of statutory duties or to compel a person holding a public office to do or forbear from doing something which is incumbent upon him to do or forbear from doing under the provisions of any law.

Assuming that the respondents in the present case are public servants, it is said that the statutory duties which it is incumbent upon them to discharge are precisely the duties which are laid down in the impugned Act itself. There is no legal obligation on their part to abstain from exercising the powers conferred upon them by the impeached enact- ment which the court can be called upon to enforce. These is really not much substance in this argument, for according to the petitioner the impugned Act is not valid at all and consequently the respondents cannot take their stand on this very Act to defeat the application for a writ in the nature of a mandamus. Any way, article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the 901 ground that ‘the proper writ or direction has not been prayed for.

Proceeding now to the merits of the case, the first contention that has been pressed before us by the learned Counsel for the petitioner is that the effect of the Shola- pur Spinning and Weaving Company Limited (Emergency Provi- sions) Act, has been to take away from the company and its shareholders, possession of -property and other interests in commercial undertaking and vest the same in certain persons who are appointed by the State, and the exercise of whose powers cannot be directed or controlled in any way by the shareholders. As the taking of possession is not for any public purpose and no provision for compensation has been made by the law which authorises it, such law, it is said, violates the fundamental rights guaranteed under article 31 of the Constitution.

To appreciate the contention, it would be convenient first of all to advert to the provisions of the first two clauses of article 31 of the Constitution. The first clause of article 31 lays down that “no person shall be deprived of his property save by authority of law” The second clause provides: “No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken posse- sion of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.” It is a right inherent in every sovereign to take and appropriate private property belonging to individual citi- zens for-public use. ‘this right, which is described as eminent domain in American law, is like the power of taxation, an offspring of political necessity, and it is supposed to be based upon an implied reservation by Govern- ment that private property acquired by its 902 citizens under its protection may be taken or its use con- trolled for public benefit irrespective of the wishes of the owner. Article 31 (2) of the Constitution prescribes a two- fold limit within which such superior right of the State should be exercised. One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose.

The other condition is that no property can be taken, unless the law which authorises such appropriation contains a provision for payment of compensation in the manner laid down in the clause. So far as article S1 (2) is concerned, the substantial question for our consideration is whether the impugned legislation authorises any act amounting to acquisition or taking possession of private property within the meaning of the clause.

It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former. In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property. Article 31 (,?) of the Constitu- tion itself makes a clear distinction between acquisition of property and taking possession of it for a public purpose, though it places both of them on the same footing in the sense that a legislation authorising either of these acts must make provision for payment of compensation to the displaced or expropriated holder of the property. In the context in which the word “acquisition” appears in article 31 (2), it can only mean and refer to acquisition of the entire interest of the previous holder by transfer of title and I have no hesitation in holding that there is no such acquisition either as regards the property of the company or of the shareholders in the present case. The question, therefore, narrows down to this as to whether the legisla- tion in 903 question has authorised the taking of possession of any property or interest belonging to the petitioner.

It is argued by the learned Attorney-General that the taking of possession as contemplated by article 31 (2) means the taking of possession of the entire bundle of rights which the previous holder had, by excluding him from every part or item thereof. If the original holder is still left to exercise his possession with regard to some of the rights which were within the folds of his title, it would not amount to taking possession of the property for purposes of article 31 (2) of the Constitution. Having laid down this proposition of law, the learned Attorney-General has taken us through the various provisions of the impugned Act and the contention advanced by him substantially is that nei- ther the company nor the shareholders have been dispossessed from their property by reason of the enactment. As regards the properties of the company, the directors, who have been given the custody of the property, effects and actionable claims of the company, are, it is said, to exercise their powers not in their own right but as agents of the company, whose beneficial interest in all its assets has not been touched or taken away at all. No doubt the affairs of the company are to be managed by a body of directors appointed by the State and not by the company, but this, it is argued, would not amount to taking possession of any property or interest within the meaning of article 31 (2). Mr. Chari on the other hand, has contended on behalf of the petitioner that after the management is taken over by the statutory directors, it cannot be said that the company still retains possession or control over its property and assets. Assuming that this State management was imposed in the interests of the shareholders themselves and that the statutory directors are acting as the agents of the company, the possession of the statutory directors could not, it is argued, be regarded in law as possession of the company so long as they are bound to act in obedience to the dictates of the Central Government and not of the company itself in the administra- tion of its affairs. Possession of an 904 agent, it is said, cannot juridically be the possession of the principal, if the agent is to act not according to the commands or dictates of the principal, but under the direc- tion of an exterior authority.

There can be no doubt that there is force in this con- tention, but as I have indicated at the outset, we are not concerned in this case with the larger question as to how far the inter-position of this statutory management and control amounts to taking possession of the property and assets belonging to the company. The point for our consider- ation is a short one and that is whether by virtue of the impugned legislation any property or interest of the peti- tioner himself, as a shareholder of the company, has been taken possession of by the State or an authority appointed under it, as contemplated by article 31 (2) of the Constitu- tion.

The petitioner as a shareholder has undoubtedly an interest in the company. His interest is represented by the share he holds and the share is movable property according to the Indian Companies Act with all the incidence of such property attached to it. Ordinarily, he is entitled to enjoy the income arising from the shares in the shape of divi- dends; the share like any ‘other marketable commodity can be sold or transferred by way of mortgage or pledge. The hold- ing of the share in his name gives him the right to vote at the election of directors and thereby take a part, though indirectly, in the management of the company’s affairs. If the majority of shareholders sides with him, he can have a resolution passed which would be binding on the company, and lastly, he can institute proceedings for winding up of the company which may result in a distribution of the net assets among the shareholders.

It cannot be disputed that the petitioner has not been dispossessed in any sense of the term of the shares he holds. Nobody has taken the shares away from him. His legal and beneficial interest in respect to the shares he holds is left intact. If the company declares dividend, he would be entitled to the same. He can sell or otherwise dispose of the shares at any 905 time at his option. The impugned Act has affected him in this way that his right of voting at the election of direc- tors has been kept in abeyance so long as the management by the statutory director continues; and as a result of that, his right to participate in the management of the company has been abridged to that extent. His rights to pass resolutions or to institute winding up proceedings have also been restricted though they are not wholly gone; these rights can be exercised only with the consent or sanction of the Central Government. In my opinion, from the facts stated above, it cannot be held that the petitioner has been dispossessed from the property owned by him. I may apply the test which Mr. Chari himself formulated. If somebody had taken possession of the petitioner’s shares and was clothed with the authority to exercise all the powers which could be exercised by the holder of the shares under law, then even if he purported to act as the petitioner’s agent and exer- cise these powers for his benefit, the possession of such person would not have been the petitioner’s possession if he was bound to act not under the directions of the petitioner or in obedience to his commands but under the directions of some other person or authority. There is no doubt whatsoever that is not the position in the present case. The State has not usurped the shareholders’ right to vote or vested it in any other authority. The State appoints directors of its own choice but that it does, not in exercise of the share- holders’ right to vote but in exercise of the powers vested in it by the impugned Act. Thus there has been no dispos- session of the shareholders from their right of voting at all. The same reasoning applies to the other rights of the shareholders spoken of above, namely, their right of passing resolutions and of presenting winding up petition. These rights have been restricted undoubtedly and may not be capable of being exercised to the fullest extent as long as the management by the State continues. Whether the restric- tions are such as would bring the case within 116 906 the mischief of article 19 (1) (f) of the Constitution, 1 will examine presently; but 1 have no hesitation in holding that they do not amount to dispossession of the shareholders from these rights in the sense that the rights have been usurped by other people who are exercising them in place of the displaced shareholders.

In the view that I have taken it is not necessary to discuss whether we can accept as sound the contention put forward by the learned Attorney-General that the word “property” as used in article 31 of the Constitution con- notes the entire property, that is to say the totality of the rights which the ownership of the object connotes.

According to Mr. Setalvad, if a shareholder is not deprived of the entirety of his rights which he is entitled to exer- cise by reason of his being the owner or holder of the share and some rights, however insignificant they might be, still remain in him, there cannot be any dispossession as contem- plated by article 31(2). It is difficult, in my opinion, to accept the contention formulated in such broad terms. The test would certainly be as to whether the owner has been dispossessed substantially from the rights held by him or the loss is only with regard to some minor ingredients of the proprietory right. It is relevant to refer in this connection to an observation made by Rich J. in a Full Bench decision of the High Court of Australia,(1) where the ques- tion arose as to whether the taking of exclusive possession of a property for an indefinite period of time by the Com- monwealth of Australia under Reg. 54 of the National Securi- ty Regulation amounted to acquisition of property within the meaning of placitum 31, section 51, of the Commonwealth Constitution. The majority of the Full Bench answered the question in the affirmative and the main reason upon which the majority decision was based is thus expressed in the language of Rich J.– “Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle. But there is nothing in (1) See Minister of Stain for the Army v. Dalziel, 68 C L.R.

p. 261, 907 the placitum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it was expropriat- ing.” It is not, however, necessary for my purpose to pursue the matter any further, as in my opinion there has been no dispossession of the rights of a shareholder in the present case.

Mr. Chari in course of his opening relied exclusively on clause (2) of article 31 of the Constitution. During his reply, however, he laid some stress on clause (1) of the article as well, and his contention seems to be that there was deprivation of property in the present case in contra- vention of the terms of this clause. It is difficult to see what exactly is the contention of the learned Counsel and in which way it assists him for purposes of the present case.

It has been argued by the learned Attorney-General that clause (1) of article 31 relates to a power different from that dealt with under clause (2). According to him, what clause (1) contemplates is confiscation or destruction of property in exercise of what are known as ‘police powers’ in American law, for which no payment of compensation is neces- sary. I do not think it proper for purposes of the present case to enter into a discussion on this somewhat debatable point which has been raised by the learned Attorney-General.

In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution-makers and the importing of expressions like ‘police power ; which is a term of variable and indefinite connotation in American law can only make the task of interpretation more difficult.

It is also not necessary to express any opinion as to wheth- er clauses (1) and (2) of article 31 relate to exercise of different kinds of powers or they are to be taken as cumula- tive provisions in relation to the same subjectmatter, namely, compulsory acquisition of property. If the word “deprived” as used in clause (1) connotes the idea of de- struction or confiscation of property, obviously no such thing has happened in the present 908 case. Again if clauses (1) and (2) of article 31 have to be read together and “deprivation” in clause (1) is given the same meaning as compulsory acquisition in clause (2), clause (1), which speaks neither of compensation nor of public purpose, would not by itself, and apart from clause (2), assist the petitioner in any way. If the two clauses are read disjunctively, the only question that may arise in connection with clause (1) is whether or not the depriva- tion of property is authorised by law. Mr. Chari has raised a question relating to the validity of the legislation on the ground of its not being covered by any of the items in the legislative list and to this question I would advert later on; but apart from this, clause (1) of article 31 of the Constitution seems to me to be altogether irrelevant for purposes of the petitioner’s case.

This leads me to the consideration of the next point raised by Mr. Chari, namely, whether these restrictions offend against the provision of article 19(1)(f) of the Constitution.

Article 19(1) of the Constitution enumerates the dif- ferent forms of individual liberty, the protection of which is guaranteed by the Constitution. The remaining clauses of the article prescribe the limits that may be placed upon these liberties by law, so that they may not conflict with public welfare or general morality. Article 19(1)(f) guarantees to all citizens ‘ the right to acquire, hold or dispose of property.’ Any infringement of this provision would amount to a violation of the fundamental rights, unless it comes within the exceptions provided for in clause (5) of the article. That clause permits the imposition of reasonable restrictions upon the exercise of such righ teither in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Two questions, therefore, arise in this connection: first, whether the restrictions that have been imposed upon the rights of the petitioner as a shareholder in the company under the Sholapur Act amount to infringement of his.right to acquire, hold or dispose of property within the meaning of article 19(1)(f) of the Constitution and 909 secondly, if they do interefere with such rights, whether they are covered by the exceptions 1aid down in clause (5) of the article.

So far as the first point is concerned, it is quite clear that there is no restriction whatsoever upon the petitioner’s right to acquire and dispose of any property.

The shares which he holds do remain his property and his right to dispose of them is not lettered in any way. If to ‘hold’ a property means to possess it, there is no infringe- ment of this right either, for, as I have stated already, the acts complained of by the petitioner do not amount to dispossession of him from any property in the eye of law. It is argued that ‘holding’ includes enjoyment of all benefits that are ordinarily attached to the ownership of a property.

The enjoyment of the fruits of a property is undoubtedly an incident of ownership. The pecuniary benefit, which a share. holder derives from the shares he holds, is the dividend and there is no limitation on the petitioner’s right in this respect. The petitioner undoubtedly has been precluded from exercising his right of voting at the elec- tion of directors so long as the statutory directors contin- ue to manage the affairs of the company. He cannot pass an effective resolution in concurrence with the majority of shareholders without the consent or sanction of the Central Government and without such sanction, there is also a disa- bility on him to institute any winding up proceedings in a court of law.

In my opinion, these are rights or privileges which are appurtenant to or flow from the ownership of property, but by themselves and taken independently, they cannot be reck- oned as property capable of being acquired, held or disposed of as is contemplated by article 19 (1) (f) of the Constitu- tion. I do not think that there has been any restriction on the rights of a shareholder to hold, acquire or dispose of his share by reason of the impugned enactment and conse- quently article 19 (1) (f) of the Constitution is of no assistance to the petitioner. In this view, the other point does not arise for consideration, but I may state here that even if it is conceded for argument’s sake that the 910 disabilities imposed by the impugned legislation amount to restrictions on proprietory right, they may very well be supported as reasonable restraints imposed in the interests of the general public, viz., to secure the supply of a commodity essential to the community and to prevent a seri- ous unemployment amongst a section of the people. They are, therefore, protected completely by clause (5)of article 19.

This disposes of the second point raised by Mr. Chari.

The next point urged on behalf of the petitioner raises an important question of constitutional law which turns upon the construction of article 14 of the Constitution. It is urged by the learned Counsel for the petitioner that the Sholapur Act is a piece of discriminatory legislation which offends against the provision of article 14 of the Constitu- tion. Article 14 guarantees to all persons in the territo- ry of India equality before the law and equal protection of the laws and its entire object, it is said, is to prevent any person or class of persons from being singled out as a special subject of discriminatory legislation. It is pointed out that the law in this case has selected one particular company and its shareholders and has taken away from them the right to manage their own affairs, but the same treatment has not been meted out to all other companies or shareholders situated in an identical manner.

Article 14 of the Constitution, it may be noted, corre- sponds to the equal protection clause in the Fourteenth Amendment of the American Constitution which declares that “no State shall deny to any person within its jurisdiction the equal protection of the laws.” We have been referred in course of the arguments on this point by the learned Counsel on both sides to quite a number of cases decided by the American Supreme Court, where questions turning upon the construction of the ‘equal protection’ clause in the Ameri- can Constitution came up for consideration. A detailed examination of these reports is neither necessary nor prof- itable for our present purpose but we think we can cull a few general principles from some of the pronouncements of 911 the American Judges which might appear to us to be consonant with reason and help us in determining the true meaning and scope of article 14 of our Constitution.

I may state here that so far as the violation of the equality clause in the Constitution is concerned, the peti- tioner, as a shareholder of the company, has as much right to complain as the company itself, for his complaint is that apart from the discrimination made against the company, the impugned legislation has discriminated against him and the other shareholders of the company as a group vis-a-vis the shareholders of all other companies governed by the Indian Companies Act who have not been treated in a similar way. As the discriminatory treat- ment has been in respect to the shareholders of this company alone, any one of the shareholders, whose interests are thus vitally affected, has a right to complain and it is immate- rial that there has been nodiscrimination inter se amongst the shareholders themselves.

It must be admitted that the guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has been said by the Supreme Court of America, “equal protection of laws is a pledge of the protection of equal laws(‘),” and this means “subjection to equal laws applying alike to all in the same situation(“).” In other words, there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same. I am unable to accept the argument of Mr. Chari that a legislation relating to one individual or one family or one body corporate would per se violate the guarantee of the equal protection rule. There can certainly be a law applying to one person or to one group of persons and it cannot be held to be (1) Yick Wo v. Hopkins, 118 U.S. at 369 (2) Southern Raliway Company v. Greene, [1910] USSC 60; 216 U.S 400,412.

912 unconstitutional if it is not discriminatory in its charac- ter (1). It would be bad law “if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon others guilty of like delinquency(2).” The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a cer- tain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just rela- tion to the things in respect to which the classification is made; and classification made without any’ substantial basis should be regarded as invalid(3).

The question is whether judged by this test the im- pugned Act can be said to have contravened the provision embodiedin article 14 of the Constitution. Obviously the Act purports to make provisions which are of a drastic character and against the general law of the land as laid down in the Indian Companies Act, in regard to the admin- istration and management of the affairs of one company in indian territory. The Act itself gives no reason for the legislation but the Ordinance, which was a precursor of the Act expressly stated why the legislation was necessary. It said that owing to mismanagement and neglect, a situation had arisen in the affairs of the company which prejudicially affected the production of an essential commodity and caused serious unemployment amongst a certain section of the community. Mr. Chari’s contention in substance is that there are various textile companies in India situated in a simi- lar manner as the Sholapur company, against which the same charges could be brought and for the control and regulation of which all the reasons that are mentioned in the preamble to the Ordinance (1) Willis Constitutional Law, p. 580.

(2) Gulf C. & S. F.R. Co. v. Ellis. 163 U.S, 150, at 159.

(3) Southern Railway Co. v. Greene, [1910] USSC 60; 216 US. 400, at 412 913 could be applied. Yet, it is said, the legislation has been passed with regard to this one company alone. The argument seems plausible at first sight, but on a closer examination I do not think that I can accept it as sound. It must be conceded that the Legislature has a wide discretion in determining the subject matter of its laws. It is an accepted doctrine of the American Courts and which seems to me to be well founded on principle, that the presumption is favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a transgression of constitutional principles. As was said by the Supreme Court of America in Middleton v. Texas Power and Light Company(1), ‘It must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.” This being the position, it is for the petitioner to establish facts which would prove that the selection of this particular subject by the Legislature is unreasona- ble and based upon arbitrary grounds. No allegations were made in the petition and no materials were placed before us to show as to whether there are other companies in India which come precisely under the same category as the Sholapur Spinning and Weaving Company and the reasons for imposing control upon the latter as mentioned in the preamble to the Ordinance are applicable to them as well. Mr. Chari argues that these are matters of common knowledge of which we should take judicial notice. I do not think that this is the correct line of approach. It is quite true that the Legislature has, in this instance, proceeded against one company only and its shareholders; but even one corporation or a group of persons can be taken as a class by itself for the purpose of legislation, provided it exhibits some excep- tional features which are not possessed by others. The courts should prima facie (1) 219 u.s. 152 at p. 157.

117 914 lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground, and it is for the party who attacks the validity of the legislation to place all materials before the court which would go to show that the selection is arbitrary and unsupportable. Throwing out of vague hints that there may be other instances of similar nature is not enough for this purpose. We have not even before us any statement on oath by the petitioner that what has been alleged against this particular company may be said against other companies as well. If there was any such statement, the respondents could have placed before us the whole string of events that led up to the passing of this legislation. If we are to take judi- cial notice of the existence of similar other badly managed companies, we must take notice also of the facts which appear in the parliamentary proceedings in connection with this legislation which leave been referred to by my learned brother, Fazl Ali J. in his judgment and which would go to establish that the facts connected with this corporation are indeed exceptional and the discrimination that has been made can be supported on just and reasonable grounds. I purpose- ly refrain from alluding to these facts or basing my deci- sion thereon as we had no opportunity of investigating them properly during the course of the hearing. As matters stand, no proper materials have been placed before us by either side and as I am unable to say that the legislature cannot be supported on any reasonable ground, I think it to be extremely risky to overthrow it on mere suspicion or vague conjectures. If it is possible to imagine or think of cases of other companies where similar or identical condi- tions might prevail, it is also not impossible to conceive of something” peculiar” or “unusual” to this corporation which led the legislature to intervene in its affairs. As has been laid down by the Supreme Court of America, “The Legislature is free to recognise degrees of harm and it may confine its restrictions to those cases where the need is deemed to be the clearest”(1). We should (1) Radics, v. New York, 264 U.S.

915 bear in mind that a corporation, which is engaged in produc- tion of a commodity vitally essential to the community, has a social character of its own, and it must not be regarded as the concern primarily or only of those who invest their money in it. If its possibilities are large and it had a prosperous and useful career for a long period of time and is about to collapse not for any economic reason but through sheer perversity of the controlling authority, one cannot say that the legislature has no authority to treat it as a class by itself and make special legislation applicable to it alone in the interests of the community at large. The combination of circumstances which are present here may be of such unique character as could not be existing in any other institution. But all these, I must say, are matters which require investigation on proper materials which we have not got before us in the present case. In these circum- stances I am constrained to hold that the present applica- tion must fail on the simple ground that the petitioner made no attempt to discharge the primafacie burden that lay upon him and did not place before us the materials upon which a proper decision on the point could be arrived at. In my opinion , therefore, the attack on the legislation on the ground of the denial of equal protection of law cannot succeed.

The only other thing that requires to be considered is the argument of Mr. Chari that the law in question is in- valid as it is not covered by any of the items in the legis- lative list. In my opinion, this argument has no substance.

What the law has attempted to do is to regulate the affairs of this company by laying down certain special rules for its management and administration. It is fully covered by item No. 43 of the Union List which speaks inter alia of “incor- poration, regulation and winding up of trading corporations.” The result is that the application fails and is dis- missed with costs.

DAS J.–As I have arrived at a conclusion different from that reached by the majority of this Court, I 916 consider it proper, out of my respect for the opinion of my learned colleagues, to state the reasons for my conclusions in some detail.

On January 9, 1950, the Governor-General of India, acting under section 42 of the Government of India Act, 1935, promulgated an Ordinance, being Ordinance No. II of 1950, concenrning the Sholapur Spinning and Weaving Company, Limited, (hereafter referred to as the said company). The preambles and the provisions of the Ordinance have been referred to in the judgment just delivered by Mukherjea J.

and need not be recapitulated by me in detail. Suffice it to say that the net result of the Ordinance was that the managing agents of the said company were dismissed, the directors holding office at the time automatically vacated their office, the Government was authorised to nominate directors, the rights of the shareholders of this company were curtailed in that it was made unlawful for them to nominate or appoint any director, no resolution passed by them could be given effect to without the sanction of the Government and no proceeding for winding up could be taken by them without such sanction, and power was given to the Government to further modify the provisions of the Indian Companies Act in its application to the said company.

On the very day that the Ordinance was promulgated the Central Government acting under section 15 delegated all its powers to the Government of Bombay. On January 10, 1950, the Government of Bombay appointed Respondents Nos. 3 to 7 as the new directors. On March 2, 1950, Respondent No.

5 having resigned, Respondent No. 8 was appointed a director in his place and on the same day Respondent No. 9 was also appointed as a director. In the meantime the new Constitu- tion had come into force on January 26, 1950. On February 7, 1950, the new directors passed a resolution sanctioning a call for Rs. 50 on the preference shares. Thereupon a suit being Suit No. 438 of 1950 was filed in the High Court of 917 Bombay by one Dwarkadas Shrinivas against the new directors challenging the validity of the Ordinance and the right of the new directors to make the call. Bhagwati J. who tried the suit held that the Ordinance was valid and dismissed the suit. An appeal (Appeal No. 48 of 1950) was taken from that decision which was dismissed by a Division Bench (Chagla C.J. and Gajendragadkar J.) on August 29, 1950. In the meantime, on April 7, 1950, the Ordinance was replaced by Act No. XXVIII of 1950. The Act substantially reproduced the provisions of the Ordinance except that the preambles to the Ordinance were omitted. On May 29, 1950, the present petition was filed by one Chiranjitlal Chowdhuri.

The petitioner claims to be a shareholder of the said company holding 80 preference shares and 3 ordinary shares.

The preference shares, according to him, stand in the name of the Bank of Baroda to whom they are said to have been pledged. As those preference shares are not registered in the name of the petitioner he cannot assert any right as holder of those shares. According to the respondents, the petitioner appears on the register as holder of only one fully paid up ordinary share. For the purposes of this application, then, the petitioner’s interest in the said company must be taken as limited to only one fully paid up ordinary share. The respondents are the Union of India, the State of Bombay and the new directors besides the company itself. The respondent No. 5 having resigned, he is no longer a director and has been wrongly impleaded as respond- ent. The reliefs prayed for are that the Ordinance and the Act are ultra vires and void, that the Central Government and the State Government and the directors be restrained from exercising any powers under the Ordinance or the Act, that a writ of mandamus be issued restraining the new direc- tors from exercising any powers under the Ordinance or the Act or from in any manner interfering with the management of the affairs of the company under colour of or in purported exercise of any powers under the said Ordinance or Act.

918 The validity of the Ordinance and the Act has been challenged before us on the following grounds:–(i) that it was not within the legislative competence–(a) of the Gover- nor-General to promulgate the Ordinance, or (b) of the Parliament to enact the Act, and (ii) that the Ordinance and the Act infringe the fundamental rights of the shareholders as well as those of the said company and are, therefore, void and inoperative under article 13.

Re (i)-.-The present application has been made by the petitioner under article 52 of the Constitution. Sub-section (1) of that article guarantees the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part [1] of the Constitution. Sub-section (2) empowers this Court to issue directions or orders or writs, including certain specified writs, whichever may be appro- priate, for the enforcement of any of the rights conferred by that Part. It is clear, therefore, that article 32 can only be invoked for the purpose of the enforcement of the fundamental rights. Article 32 does not permit an applica- tion merely for the purpose of agitating the competence of the appropriate legislature in passing any particular enact- ment unless the enactment also infringes any of the funda- mental rights. In this case the claim is that the fundamen- tal rights have been infringed and, therefore, the question of legislative competence may also be incidentally raised on this application. It does not appear to me, however, that there is any substance in this point for, in my opinion, entry 33 of List I of the Seventh Schedule to the Government of India Act, 1935, and the corresponding entry 43 of the Union List set out in the Seventh Schedule to the Constitu- tion clearly support these pieces of legislation as far as the question of legislative competency is concerned. Sec- tions 83A and 83-B of the Indian Companies Act can only be supported as valid on the ground that they regulate the management of companies and are, therefore, within the said entry. Likewise, the provisions of the Ordinance and the Act relating to the appointment of directors by the 919 Government and the curtailment of the shareholders’ rights as regards the election of directors, passing of resolutions giving directions with respect to the management of the company and to present a winding up petition are matters touching the management of the company and, as such, within the legislative competence of the appropriate legislative authority. In my judgment, the Ordinance and the Act cannot be held to be invalid on the ground of legislative incompe- tency of the authority promulgating or passing the same.

Re (ii)–The fundamental rights said to have been in- fringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property secured by article 31, In Gapalan’s case (1) 1 pointed out that the rights conferred by article 19 (1) (a) to (e) and (g) would be available to the citizen until he was, under article 21, deprived of his life or personal liberty according to procedure established by law and that the right to property guaranteed by article 19 (1)(f) would likewise continue until the owner was, under article 31, deprived of such property by authority of law.

Therefore, it will be necessary to consider first whether the shareholder or the company has been deprived of his or its property by authority of law under Article 31 for, if he or it has been so deprived, then the question of his or its fundamental right under article 19 (1) (f) will not arise.

The relevant clauses of article 31 run as follows “31. (1) No person shall be deprived of his property save by authority of law.

(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorisingthe taking of such possession or such acquisition, unless the law provides for compensation for the property taken posses- sion of or acquired (1) [1950] INSC 14; [1950] S.C.R. 88 920 and either fixes the amount of the compensation, or speci- fies the principles on which, and the manner in which, the compensation is to be determined and given.” Article 31 protects every person, whether such’ person is a citizen or not. and it is wide enough to cover a natu- ral person as well as an artificial person. Whether or not, having regard to the language used in article 5, a corpora- tion can be called a citizen and as such entitled to the rights guaranteed under article 19, it is quite clear that the corporation is protected by article 31, for that article protects every “person” which expression certainly includes an artificial person.

The contention of the peitioner is that the Ordinance and the Act have infringed his fundamental right to property as a shareholder in the said company. Article 31, like article 19(1) (f), is concerned with “property “. Both the articles are in the same chapter and deal with fundamental rights. Therefore, it is reasonable to say that the word “property” must be given the same meaning in construing those two articles. What, then, is the meaning of the word “property”? It may mean either the bundle of rights which the owner has over or in respect of a thing, tangible or intangible, or it may mean the thing itself over or in respect of which the owner may exercise these rights. It is quite clear that the Ordinance or the Act has not deprived the shareholder of his share itself. The share still be- longs to the shareholder. He is still entitled to the dividend that may be declared. He can deal with or dispose of the share as he pleases. The learned Attorney-General contends that even if the other meaning of the word “proper- ty” is adopted, the shareholder has not been deprived of his” property” understood in that sense, that is to say he has not been deprived of the entire bundle of rights which put together constitute his “property “. According to him the” property” of the shareholder, besides and apart from his right to elect directors, to pass resolutions giving directions to the directors and to present a winding up petition, consists in his right to participate 921 in the dividends declared on the profits made by the working of the company and, in case of winding up, to participate in the surplus that may be left after meeting the winding up expenses and paying the creditors. Those last mentioned rights, he points out, have not been touched at all and the shareholder can yet deal with or dispose of his shares as he pleases and is still entitled to dividends if and when declared. Therefore, concludes the learned Attorney-General, the shareholder cannot complain that he has been deprived of his “property”, for the totality of his rights have not been taken away. The argument thus formulated appears to me to be somewhat too wide, for it will then permit the legisla- ture to authorise the State to acquire or take possession, without any compensation, of almost the entire rights of the owner leaving to him only a few subsidiary rights. This result could not, in my opinion, have been intended by our Constitution. As said by Rich J. in the Minister for State for the Army v. Datziel (i) while dealing with section 31 (XXXI) of the Australian Constitution– “Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencurnbered estate in fee simple in possession has the largest possible bundle. But there is nothing in the placi- tum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it is expropriating.” The learned Judge then concluded as follows at p. 286 :- “It would in my opinion, be wholly inconsistent with the language of the placitum to hold that whilst preventing the legislature from authorising the acquisition of a citi- zen’s full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely, on any terms it chooses or upon no terms at all.” (1) [1944] HCA 4; (1943-1944) 68 C,L.R. 261.

118 922 In my judgment the question whether the Ordinance or the Act has deprived the shareholder of his “property” must depend, for its answer, on whether it has taken away the substantial bulk of the rights constituting his “property”.

In other words, if the rights taken away by the Ordinance or the Act are such as would render the rights left un- touched illusory and practically valueless, then there can be no question that in effect and substance the “property” of the shareholder has been taken away by the Ordinance or the Act. Judged by this test can it be said that the right to dispose of the share and the right to receive dividend, if any, or to participate in the surplus in the case of winding up that have been left to the shareholder are illu- sory or practically valueless, because the right to control the management by directors elected by him, the right to pass resolutions giving directions to the directors and the right to present a winding up petition have, for the time being, been suspended ? I think not. The right still pos- sessed by the shareholder are the most important of the rights constituting his “property”, although certain privi- leges incidental to the ownership have been put in abeyance for the time being. It is, in my opinion, impossible to say that the Ordinance or the Act has deprived the shareholder of his “property” in the sense in which that word is used in article 19 (1) (f) and article 31. The curtailment of the incidental privileges, namely, the right to elect directors, to pass resolutions and to apply for winding up may well be supported as a reasonable restraint on the exercise and enjoyment of the shareholder’s right of property imposed in the interests of the general public under article 19 (5), namely, to secure the supply of an essential commodity and to prevent unemployment.

Learned counsel for the petitioner, however, urges that the Ordinance and the Act have infringed the sharehold- er’s right to property in that he has been deprived of his valuable right to elect directors, to give directions by passing resolutions and, in case of apprehension of loss, to present a petition for the winding 923 up of the company. These rights, it is urged, are by them- selves “property” and it is of this “property” that the shareholder is said to have been deprived bythe State under a law which does not provide for payment of compensation and which is, as such, an infraction of the shareholder’s funda- mental right to property under article 31 (2). Two ques- tions arise on this argument. Are these rights “property” within the meaning of the two articles I have mentioned ? These rights, as already stated, are, no doubt, privileges incidental to the ownership of the share which itself is property, but it cannot, in my opinion, be said that these rights, by themselves, and apart from the share are “proper- ty” within the meaning of those articles, for those articles only regard that as “property” which can by itself be ac- quired, disposed of or taken possession of. The right to vote for the election of directors, the right to pass reso- lutions and the right to present a petition for winding up are personal rights flowing from the ownership of the share and cannot by themselves and apart from the share be ac- quired or disposed of or taken possession of as contemplated by those articles. The second question is assuming that these rights are by themselves “property “, what is the effect of the Ordinance and the Act on such “property”. It is nobody’s case that the Ordinance or the Act has autho- rised any acquisition by the State of this “property” of the shareholder or that there has in fact been any such acquisi- tion. The only question then is whether this “property” of the shareholder, meaning thereby only the rights mentioned above, has been taken possession of by the State. It will be noticed that by the Ordinance or the Act these particular rights of the shareholder have not been entirely taken away, for he can still exercise these rights subject 0 course, to the sanction of the Government. Assuming, however, that the fetters placed on these rights are tantamount to the taking away of the rights altogether, there is nothing to indicate that the Ordinance or the Act has, after taking away the rights from the shareholder, 924 vested them in the State or in any other person named by it so as to enable the State or any other person to exercise those rights of the shareholder. The Government undoubtedly appoints directors under the Act, but such appointment is made in exercise of the the powers vested in the Government by the Ordinance or the Act and not in exercise of the shareholder’s right. As already indicated, entry 43 in the Union List authorises Parliament to make laws with respect, amongst other things, to the regulation of trading corpora- tions. There was, therefore, nothing to prevent Parliament from amending the Companies Act or from passing a new law regulating the management of the company by providing that the directors, instead of being elected by the shareholders, should be appointed by the Government. The new law has undoubtedly cut down the existing rights of the shareholder and thereby deprived the shareholder of his unfettered right to appoint directors or to pass resolutions giving direc- tions or to present a winding up petition. Such depriva- tion, however, has not vested the rights in the Government or its nominee. What has happened to the rights of the shareholder is that such rights have been temporarily de- stroyed or kept in abeyance. The result, therefore, has been that although the shareholder has been for the time being deprived of his “property”, assuming these rights to be “property”, such “property” has not been acquired or taken possession of by the Government. If this be the result brought about by the Ordinance and the Act, do they offend against the fundamental rights guaranteed by article 31 ? Article 31 (1) formulates the fundamental right in a nega- tive form prohibiting the deprivation of property except by authority of law. It implies that a person may be deprived of his property by authority of law. Article 31 (2) prohib- its the acquisition or taking possession of property for a public purpose under any law, unless such law provides for payment of compensation. It is suggested that clauses (1) and (2)o[ article 31 deal with the same topic, namely, compulsory acquisition or taking possession 925 of property, clause (2) being only an elaboration of clause (1). There appear to me to be two objections to this sug- gestion. If that were the correct view, then clause (1).must be held to be wholly redundant and clause (2), by itself, would have been sufficient. In the next place, such a view would exclude deprivation of property otherwise than by acquisition or taking of possession. One can conceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same. For example, in any emergency, in order to prevent a fire spreading, the authorities may have to demolish an intervening building. This deprivation of property is sup- ported in the United States of America as an exercise of “police power “.This deprivation of property is different from acquisition or taking of possession of property which goes by the name of “eminent domain” in the American Law.

The construction suggested implies that our Constitution has dealt with only the law of “eminent domain “, but has not provided for deprivation of property in exercise of police powers’ ‘. I am not prepared to adopt such construction, for I do not feel pressed to do so by the language used in article 31. On the contrary, the language of clause (1) of article 31 is wider than that of clause (2), for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it. I think clause (1) enunciates the general principle that no person shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be de- prived of his property, provided he is so deprived by au- thority of law. No question of compensation arises under clause (1). The effect of clause (2) is that only certain kinds of deprivation of property, namely those brought about by acquisition or taking possession of it, will not be permissible under any law, unless such law provides for payment of compensation. If the deprivation of property is brought about by means other than acquisition or taking possession of it, no compensation is required, provided that such deprivation is by 926 authority of law. In this case, as already stated, although the shareholder has been deprived of certain rights, such deprivation has been by authority of law passed by a compe- tent legislative authority. This deprivation having been brought about otherwise than by acquisition or taking pos- session of such rights, no question of compensation can arise and, therefore, there can be no question of the infraction of fundamental rights under article 31 (2). It is clear, therefore, that so far as the shareholder is concerned there has been no infringement of his fundamental rights under article 19 (1) (f) or article 31, and the shareholder cannot question the constitutionality of the Ordinance or the Act on this ground.

As regards the company it is contended that the Ordi- nance and the Act by empowering the State to dismiss the managing agent, to discharge the directors elected by the shareholders and to appoint new directors have in effect authorised the State to take possession of the undertaking and assets of the company through the new directors appoint- ed by it without paying any compensation and, therefore, such law is repugnant to article 31 (2) of our Constitution.

It is, however, urged by the learned Attorney-General that the mills and all other assets now in the possession and custody of the new directors who are only servants or agents of the said company are, in the eye of the law, in the possession and custody of the company and have not really been taken possession of by the State. This argument, however, overlooks the fact that in order that the posses- sion of the servant or agent may be juridically regarded as the possession of the master or principal, the servant or agent must be obedient to, and amenable to the directions of, the master or principal. If the master or principal has no hand in the appointment of the servant or agent or has no control over him or has no power to dismiss or discharge him, as in this case, the possession of such servant or agent can hardly, in law, be regarded as the possession of the company(1). In this view of the (1) See Elements of Law by Markby. 6th Edition. Para 371. p.

192.

927 matter there is great force in the argument that the proper- ty of the company has been taken possession of by the State through directors who have been appointed by the State in exercise of the powers conferred by the Ordinance and the Act and who are under the direction and control of the State and this has been done without payment of any compen- sation. The appropriate legislative authority was no doubt induced to enact this law, because, as the preamble to the Ordinance stated, on account of mismanagement and neglect, a situation had arisen in the affairs of the company which had prejudicially-affected the production of an essential com- modity and had caused serious unemployment amongst a certain section of the community, but, as stated by Holmes J. in Pennsylvania Coal Company v. Mahon(1), “A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional. way of paying for the change.” Here, there- fore, it may well be argued that the property of the company having been taken possession of by the State in exercise of powers conferred by a law which does not provide for payment of any compensation, the fundamental right of the company has, in the eye of the law, been infringed.

If the fundamental right of the company has been in- fringed, at all, who can complain about such infringement ? Primafacie the company would be the proper person to come forward in vindication of its own rights. It is said that the directors having been dismissed, the company cannot act.

This, however, is a misapprehension, for if the Act be void on account of its being unconstitutional, the directors appointed by the shareholders have never in law been dis- charged and are still in the eye of the law the directors of the company, and there was nothing to prevent them from taking proceedings in the name of the company at their own risk as to costs. Seeing that the directors have not come forward to make the application on behalf of the company and in its name the question arises whether (1) [1922] USSC 193; 260 U,S. 393.

928 an individual shareholder can complain. It is well settled in the United States that no one but those whose rights are directly affected by a law can raise the question of the constitutionality of that law. Thus in McCabe v.

Atchison(1) which arose out of a suit filed by five Negros against five Railway Companies to restrain them from making any distinction in service on account of race pursuant to an Oklahoma Act known as ‘ ‘The Separate Coach Law,” in uphold- ing the dismissal of the suit Hughes J. observed :– “It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainants’ need of it and the absence of an adequate remedy at law must clearly appear. The complaint cannot succeed because some- one else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant–not to others -which justi- fies judicial interference.” In that case there was no allegation that anyone of the plaintiffs had ever travelled on anyone of the rail roans or had requested any accommodation in any of the sleeping cars or that such request was refused. The same principle was laid down in Jeffrey Manufacturing Company v. Blagg(2), Hendrick v. MaCyland(3) and Newark Natural Gas and Fuel Company v. The City of Newark(1). In each of these cases the Court declined to permit the person raising the question of constitutionality to do so on the ground that his rights were not directly affected by the law or Ordinance in ques- tion. On the other hand, in Truax v. Raich(5) and in Bu- chanan v. Warley(5) the Court allowed the plea because in both the cases the person raising it was directly affected.

In the first of the two last mentioned cases an Arizona Act of 1914 requiring employers employing more than five workers to employ not less than eighty per cent. native born citi- zens was (1) 235 u.s. 151. (4) 242 u.s. 403.

(2) 235 u.s. 571. (5) 239 u.s. 33.

(3) [1915] USSC 5; 235 U.S. 610 (6) 245 u.s. 60.

929 challenged by an alien who had been employed as a cook in a restaurant. That statute made a violation of the Act by an employer punishable. The fact that the employment was at will or that the employer and not the employee was subject to prosecution did not prevent the employee from raising the question of constitutionality because the statute, if en- forced, would compel the employer to discharge the employee and, therefore, the employee was directly affected by the statute. In the second of the two last mentioned cases a city Ordinance prevented the occupation of a plot by a colored person in a block where a majority of the residences were occupied by white persons. A white man sold his property in such a block to a Negro under a contract which provided that the purchaser should not be required to accept a deed unless he would have a right, under the laws of the city, to occupy the same as a residence. The vendor sued for specific performance and contended that the Ordinance was unconstitutional. Although the alleged denial of con- stitutional rights involved only the rights of coloured persons and the vendor was a white person yet it was held that the vendor was directly affected, because the Courts below, in view of the Ordinance, declined to enforce his contract and thereby directly affected his right to sell his property. It is, therefore, clear that the constitutional validity of a law can be challenged only by a person whose interest is directly affected by the law. The question then arises whether the infringement of the company’s rights so directly affects its shareholders as to entitle any of its shareholders to question the constitutional validity of the law infringing the company’s rights. The question has been answered in the negative by the Supreme Court of the United States in Darnell v. The State of Indi- ana(1). In that case the owner of a share in a Tennessee corporation was not allowed to complain that an Indiana law discriminated against Tennessee corporations in that it did not make any allowance, as it did in the case of Indiana corporations, where the corporation (1) 226 U.S. 388.

119 930 had property taxed within the State. This is in accord with the well established legal principle that a corporation is a legal ‘entity capable of holding pro perty and of suing or being sued and the corporators are not, in con- templation of law, the owners of the assets of the corpora- tion. In all the cases referred to above the question of constitutionality was raised in connection with the equal protection clause in the Fourteenth Amendment of the American Federal Constitution. If such be the require- ments of law in connection with the equal protection clause which corresponds to our article 14, it appears to me to follow that only a person who is the owner of the property can raise the question of constitutionality under article 31 of a law by which he is so deprived of his property. If direct interest is necessary to permit a person to raise the question of constitutionality under article 14, a direct interest in the property will, I apprehend, be necessary to entitle a person to challenge a law which is said to infringe the right to that property under article 31. In my opinion, although a shareholder may, in a sense be interested to see that the company of which he is a shareholder is not deprived of its property he cannot, as held in Darnell v. Indiana(1), be heard to complain, in his own name and on his own behalf, of the infringement of the fundamental right to property of the company, for, in law, his own right to property has not been infringed as he is not the owner of the company’s properties. An interest in the company owning an undertak- ing is not an interest in the undertaking itself. The interest in the company which owns an undertaking is the “property” of the shareholder under article 31 (2), but the undertaking is the property of the company and not that of the shareholder and the latter cannot be said to have a direct interest in the property of the company. This is the inevitable result of attributing a legal personality to a corporation. The proceedings for a writ in the nature of a writ of habeas corpus appear to be somewhat different for the (1) 226 u.S. 338 931 rules governing those proceedings permit, besides the person imprisoned, any person, provided he is not an utter strang- er, but is at least a friend or relation of the imprisoned person, to apply for that particular writ. But that special rule does not appear to be applicable to the other writs which require a direct and tangible interest in the appli- cant to support his application. This must also be the case where the applicant seeks to raise the question of the constitutionality of a under articles 14, 19 and 31.

For the reasons set out above the present petitioner cannot raise the question of constitutionality of the impugned law under article 31. He cannot complain of any infringement of his own rights as a shareholder, because his “property” has not been acquired or taken possession of by the State although he has been deprived of his right to vote and to present a winding up petition by authority of law. Nor can he complain of an infringement of the compa- ny’s right to property because he is not, in the eye of law, the owner of the property in question and accordingly not directly interested in it. In certain exceptional cases where the company’s property is injured by outsiders, a shareholder may, under the English law, alter making all endeavours to induce the persons in charge of the affairs of the company to take steps, file a suit on behalf of himself and other shareholders for redressing the wrong done to the company, but that principle does not apply here for this is not a suit, nor has it been shown that any attempt was made by the petitioner to induce the old directors to take steps nor do these proceedings purport to have been taken by the petitioner on behalf of himself and the other shareholders of the.company.

The only other ground on which the Ordinance and the Act have been challenged is that they infringe the the fundamen- tal rights guaranteed by article 14 of the Constitution.

“Equal protection of the laws”, as observed by Day 3. in Southern Railway Company v. Greene (1), “means subjection to equal laws, applying (1) [1910] USSC 60; 216 U.S. 400 932 alike to all in the same situation”. The inhibition of the article that the State shall not deny to any person equality before the law or the equal protection of the laws was designed to protect all persons against legislative discrim- ination amongst equals and to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not, howev- er, mean that every law must have universal application, for all persons are not, by nature, attainment or circumstances, in the same position. The varying needs of different class- es of persons often require separate treatment and it is, therefore, established by judicial decisions that the equal protection clause of the Fourteenth Amendment of the Ameri- can Constitution does not take away from the State the power to classify persons for legislative purposes. This classi- fication may be on different bases. It may be geographical or according to objects or occupations or the like. If law deals equally with all of a certain well-defined class it is not obnoxious and it is not open to the charge of a denial of equal protection on the ground that it has no applica- tion to other persons, for the class for whom the law has been made is different from other persons and, there- fore, there is no discrimination amongst equals. It is plain that every classification is in some degree likely’ to produce some inequality, but mere production of inequality is not by itself enough. The inequality produced, in order to encounter the challenge of the Constitution, must be “actually and palpably unreasonable and arbitrary.” Said Day J. in Southern Railway Company v. Greene(1) :—” While reasonable classification is permitted, without doing vio- lence to the equal protection of the laws, such classifica- tion must be based upon some real and substantial distinc- tion, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and the classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it classification”. Quite conceivably there may be a law 933 relating to a single individual if it is made apparent that, on account of some special reasons applicable only to him and inapplicable to anyone else, that single individual is a class by himself. In Middieton v. Texas Power and Light Company(1) it was pointed out that there was a strong presumption that a legislature understood and correctly appreciated the needs of its own people, that its laws were directed to problems made manifest by experience and that the discriminations were based upon adequate grounds. It was also pointed out in that case that the burden was upon him who attacked a law for unconstitutionality. In Lindsley v. Natural Carbonic Gas Company(2) It was also said that one who assailed the classification made in a law must carry the burden of showing that it did not rest upon any reasonable basis but was essentially arbitrary. If there is a classi- fication, the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist. If, however, there is, on the face of the stat- ute, no classification at all or none on the basis of any apparent difference specially peculiar to any particular individual or class and not applicable to any other person or class of persons and yet the law hits only the particular individual or class it is nothing but an attempt to arbi- trarily single out an individual or class for discriminating and hostile legislation. The presumption in favour of the legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him. As pointed out by Brewer J. in the Gulf, Colorado and Santa Fe’Railway v.W.H. Ellis (3), while good faith (1} [1919] USSC 58; 249 U.S. 152. (2) [1911] USSC 42; 220 U.S. 61. (3) 165 U.S..

150.

934 and a knowledge of existing conditions on the part of a legislature was to be presumed, yet to carry that presump- tion to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain indi- viduals or corporations to hostile and discriminating legis- lation was to make the protecting clause a mere rope of sand, in no manner restraining State action.

The complaint of the petitioner on this head is formu- lated in paragraph 8 (iii) of the petition as follows :—“The Ordinance denied to the company and its sharehold- ers equality before the law and equal protection of the laws and was thus a violation of article 14 of the Constitution.

The power to make regulations relating to trading corpo- rations or the control or production of industries was a power which consistently with article 14 could be exercised only generally or with reference to a class and not with reference to a single company or to shareholders of a single company.” The Act is also challenged on the same ground in paragraph 9 of the petition. The learned Attorney-General contends that the petitioner as an individual shareholder cannot complain of discrimination against the company. It will be noticed that it is not a case of a shareholder complaining only about discrimination against the company or fighting the battle of the company but it is a case of a shareholder complaining of discrimination against himself and other shareholders of this company. It is true that there is no complaint of discrimination inter se the share- holders of this company but the complaint is that the share- holders of this company, taken as a unit, have been discrim- inated vis-a-vis the shareholders of other companies.

Therefore, the question as to the right of the shareholder to question the validity of a law infringing the right of the company does not arise. Here the shareholder is com- plaining of the infringement of his own rights and if such infringement can be established I see no reason why the shareholder cannot come within article 32 to vindicate his own rights. The fact that these proceedings have been taken by 935 one single shareholder holding only one single fully paid up share does not appear to me to make any the least difference in principle. If this petitioner has, by the Ordinance or the Act, been discriminated against and denied equal protec- tion of the law, his fundamental right has been infringed and his right to approach this Court for redress cannot be made dependent on the readiness or willingness of other shareholders whose rights have also been infringed to join him in these proceedings or of the company to take substan- tive proceedings. To take an example, if any law discrimi- nates against a class, say the Punjabis, any Punjabi may question the constitutionality of the law, without joining the whole Punjabi community or without acting on behalf of all the Punjabis. To insist on his doing so will be to put a fetter on his fundamental right under article 32 which the Constitution has not imposed on him. Similarly, if any law deprives a particular shareholder or the shareholders of a particular company of the ordinary rights of sharehold- ers under the general law for reasons not particularly and specially applicable to him or them but also applicable to other shareholders of other companies, such law surely offends against article 14 and any one so denied the equal protection of law may legitimately complain of the infringe- ment of his fundamental right and is entitled as of right to approach this Court under article 32 to enforce his own fundamental right under article 14, irrespective of whether any other person joins him or not.

To the charge of denial of equal protection of the laws the respondents in the affidavit of Sri Vithal N. Chandavar- kar filed in opposition to the petition make the following reply:–“With reference to paragraph 6 of the petition, I deny the soundness of the submissions that on or from the 26th January, 1950, when the Constitution of India came into force the said Ordinance became void under article 13(1) of the Constitution or that the provisions thereof were inconsistent with the provisions of Part III of the said Constitution or for any of the other grounds mentioned in paragraph 8 936 of the said petition.” In the whole of the affidavit in opposition there is no suggestion as to why the promulgation of the Ordinance or the passing of the Act was considered necessary at all or on what principle or basis either of them was founded. No attempt has been made in the affidavit to show that the Ordinance or the Act was based upon any principle of classification at all or even that the particu- lar company and its shareholders possess any special quali- ties which are not to be found in other companies and their shareholders and which, therefore, render this particular company and its shareholders a class by themselves. Neither the affidavit in opposition nor the learned Attorney-General in course of his arguments referred to the statement of the objects and reasons for introducing the bill which was eventually enacted or the Parliamentary debates as showing the reason why and under what circumstances this law was made and, therefore, apart from the question of their admis- sibility in evidence, the petitioner has had no opportunity to deal with or rebut them and the same cannot be used against him.

The learned Attorney-General takes his stand on the presumption that the law was founded on a valid basis of classification, that its discriminations were based upon adequate grounds and that the law was passed for safeguard- ing the needs of the people and that, therefore, the onus was upon the petitioner to allege and prove that the classi- fication which he challenged did not rest upon any reasona- ble basis but was essentially arbitrary. I have already said that if on the face of the law there is no classification at all or, at any rate, none on the basis of any apparent difference specially peculiar to the individual or class affected by the law, it is only an instance of an arbitrary selection of an individual or class for discriminating and hostile legislation and, therefore, no presumption can, in such circumstances, arise at all. Assuming, however, that even in such a case the onus is thrown on the complainant, there can be nothing to prevent him from proving, if he can, from the text of. the law itself, that 937 it is “actually and palpably unreasonable and arbitrary” and thereby discharging the initial onus.

The Act is intituled an Act to make special provision for the proper management and administration of the Sholapur Spinning and Weaving Company, Limited.” There is not even a single preamble alleging that the company was being misman- aged at all or that any special reason existed which made it expedient to enact this law. The Act, on its face, does not purport to make any classification at all or to specify any special’ vice to which this particular company and its shareholders are subject and which is not to be found in other companies and their shareholders so as to justify any special treatment. Therefore., this Act, ex facie, is nothing but an arbitrary selection of this particular compa- ny and its shareholders for discriminating and hostile treatment and read by itself.is palpably an infringement of Article 14 of the Constitution.

The learned Attorney-General promptly takes us to the preambles to the Ordinance which has been replaced by the Act and suggests that the Act is based on the same consider- ations on which the Ordinance was promulgated. Assuming that it is right and permissible to refer to and utilise the preambles, do they alter the situation ? The preambles were as follows :-“Whereas on account of mismanagement and ne- glect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudi- cially affected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community;And whereas an emergency has arisen which renders it necessary to make special provision for the proper management and administration of the aforesaid compa- ny;-” The above preambles quite clearly indicate that the justification of the Ordinance rested on mismanagement and neglect producing certain results therein specified. It will be noticed that apart from these preambles there is no material whatever before us establishing or even suggesting that this company and its shareholders have in fact been guilty of any 938 mismanagement or neglect. Be that as it may, the only reason put forward for the promulgation of the Ordinance was mismanagement resulting in falling off of production and in producing unemployment. I do not find it necessary to say that mismanagement and neglect in conducting the affairs of companies can never be a criterion or basis of classifica- tion for legislative purposes. I shall assume that it is permissible to make a law whereby all delinquent companies and ‘their shareholders may be brought to book and all companies mismanaging their affairs and the shareholders of such companies may, in the interest of the general public, be deprived of their right to manage the affairs of their companies. Such a classification made by a law would bear a reasonable relation to the conduct of all delinquent compa- nies and shareholders and may, therefore, create no inequal- ity, for the delinquent companies and their shareholders from a separate class and cannot claim equality of treatment with good companies and their shareholders who are their betters. But a distinction cannot be made between the delinquent companies inter se or between shareholders of equally delinquent companies and one set cannot be punished for its delinquency while another set is permitted to continue, or become, in like manner, delinquent without any punishment unless there be some other apparent difference in their respective obligations and unless there be some cogent reason why prevention of mismanagement is more imperative in one instance than in the other. To do so will be nothing but an arbitrary selection which can never be justified as a permissible classiffication. I am not saying that this particular company and its shareholders may not be guilty of mismanagement and negligence which has brought about seri- ous fall in production of an essential commodity and also considerable unemployment. But if mismanagement affect- ing production and resulting in unemployment is to be the basis of a classification for making a law for preventing mismanagement and securing production and employment, the law must embrace within its 939 ambit all companies which now are or may hereafter become subject to the vice. This basis of classification, by its very nature, cannot be exclusively applicable to any partic- ular company and its shareholders but is capable of wider application and, therefore, the law founded on that basis must also be wide enough so as to be capable of being ap- plicable to whoever may happen at any time to fall within that classification. Mismanagement affecting production can never be reserved as a special attribute peculiar to a particular company or the shareholders of a particular company. It it were permissible for the legislature to single out an individual or class and to punish him or it for some delinquency which may equally be found in other individuals or classes and to leave out the other individu- als or classes from the ambit of the law the prohibition of the denial of equal protection of the laws would only be a meaningless and barren form of words. The argument that the presumption being in favour of the legislature, the onus is on the petitioner to show there are other individuals or companies equally guilty of mismanagement prejudicially affecting the production of an essential commodity and causing serious unemployment amongst a certain section of the community does not, in such. circumstances, arise, for the simple reason that here there has been no classification at all and, in any case, the basis of classification by its very nature is much wider and cannot, in it application, be limited only to this company and its shareholders and, that being so, there is no reason to throw on the petitioner the almost impossible burden of proving that there are other companies which are in fact precisely and in all particu- lars similarly situated In any event, the petitioner, in my opinion, may well claim to have discharged the onus of showing that this company and its shareholders have been singled out for discriminating treatment by showing that the Act, on the face of it, has adopted a basis of classifica- tion which, by its very nature, cannot be exclusively ap- plicable to this company and its shareholders but Which may be equally appplicable to other companies 940 and their shareholders and has penalised this particular company and its shareholders, leaving out other companms and their shareholders who may be equally guilty of the alleged vice of mismanagement and neglect of the type referred to in the preambles. In my opinion the legislation in question infringes the fundamental rights of the petitioner and offends against article 14 of our Constitution.

The result, therefore, is that this petition ought to succeed and the petitioner should have an order in terms of prayer (3) of the petition with costs.

Petition dismissed.

Agent for the petitioner: M.S.K. Aiyengar.

Agent for opposite party Nos. 1 & 2:P.A. Mehta.

Agent for opposite party Nos. 3 to 5 and 7 to 10:

Rajinder Narain.

The post Chiranjit Lal Chowdhuri vs The Union Of India And Others appeared first on B&B Associates LLP.

A.K. GOPALAN …PETITIONER
Vs.
THE STATE OF MADRAS.UNION OF INDIA: INTERVENER. …RESPONDENT

DATE OF JUDGMENT: 19/05/1950

BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN MUKHERJEA, B.K.

CITATION: 1950 AIR 27 1950 SCR 88

CITATOR INFO :

F 1951 SC 157 (21) F 1951 SC 270 (5, 6) F 1951 SC 301 (10) F 1951 SC 332 (344) E 1952 SC 75 (45) RF 1952 SC 123 (6) F 1952 SC 181 (6,27,29,33) D 1952 SC 196 (16) RF 1952 SC 252 (106) R 1952 SC 366 (16) E&F 1952 SC 369 (90, 93) F 1953 SC 451 (7) E&F 1954 SC 92 (5, 39) RF 1954 SC 119 (15) RF 1954 SC 728 (17) R 1955 SC 41 (6) F 1956 SC 108 (6) R 1957 SC 688 (6,8,9) R 1958 SC 163 (7,8,9,25,26,33,36,38,41) APL 1958 SC 578 (154,223) D 1958 SC 731 (17) R 1959 SC 149 (27,82) D 1960 SC 430 (10) D 1960 SC1080 (25,27, 28) RF 1961 SC 232 (55) R 1961 SC1629 (5) R 1962 SC1006 (67,72,79) R 1962 SC1371 (32,34,35) R 1962 SC1621 (73,108) R 1963 SC1047 (18) F 1963 SC1295 (15, 31) F 1964 SC 381 (54) R 1965 SC 845 (29,30,44,45) E 1966 SC 424 (2, 7) RF 1966 SC1910 (34) R 1967 SC 1 (41,42,75,158) APL 1967 SC1639 (7,10) R 1967 SC1643 (22,95,230,274) R 1967 SC1836 (13,23,53,58) E 1968 SC1138 (14) E 1968 SC1313 (10) RF 1969 SC1100 (7) O 1970 SC 564 (48,53,54,64,149,152,153, 156) RF 1971 SC 481 (46) E 1972 SC 963 (35) R 1972 SC1660 (7, 9) RF 1973 SC 106 (105) O 1973 SC1425 (7,18,25,27,33,37,38, 39) RF 1973 SC1461 (24,30,184,310,503,648,699, 790 RF 1973 SC2555 (5) F 1974 SC 348 (24) R 1974 SC 613 (8,10,31,32,33,34,43,50,51) R 1974 SC2154 (21) RF 1975 SC 550 (12) E 1975 SC 775 (3) RF 1975 SC2213 (7) RF 1975 SC2299 (135,609,610) E 1976 SC1207 (53,55, 57) RF 1976 SC1750 (3) R 1977 SC1027 (23,30,42) R 1978 SC 68 (89) R 1978 SC 215 (67) D 1978 SC 489 (1,9) E&R 1978 SC 597 (5,9,10,11,12,16,40,41,54,55,* RF 1978 SC1675 (55, 227) RF 1979 SC 478 (90, 159) RF 1979 SC 745 (71) RF 1979 SC1925 (16) C 1980 SC 898 (30,41,43,44,47,48,50,51, 54) RF 1982 SC 710 (17,21,71,84,114) MV 1982 SC1325 (16, 80) RF 1983 SC 361 (2,12, 13) F 1985 SC1367 (33) F 1985 SC1416 (103, 104) RF 1986 SC 555 (6) RF 1986 SC1162 (5) R 1990 SC 231 (17) RF 1991 SC 564 (5) R 1992 SC 320 (51) RF 1992 SC1701 (21,26,27)

ACT:

Preventive Detention Act (IV of 1950), ss. 8, 7, 10-I4.–Validity–Constitution of India, 1950, Arts. 13, 19 to 22, 32–Law relating to preventive detention–Whether infringes Fundamental Right as to freedom of movement–Whether subject to judicial review as to reasona- bleness under Art. 19 (5)–Scope of Art. 19–Right of free movement and Right to personal liberty, nature and incidents of–Art. 22, whether complete code as to preventive deten- tion–Scope and applicability of Art.. 21–“Law,” “proce- dure established by law,” meanings of–Whether include rules of natural justice–Construction of Art. 21–American deci- sions on “due process of law,” value of-Omission to provide objective standard for satisfaction of authorities, to provide for oral hearing or leading of evidence, to fix maximum period of detention, and to specify “circumstances” and “classes of cases” where period of detention may be extended over 3 months, prohibiting detenu from disclos- ing grounds of detention–Validity of law–Construction of Constitution –Reference to debates and Report of Draft- ing Committee-Permissibility.

Held, per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ. (FAZL ALI and MAHAJAN JJ. dissentinq)–that the preventive Detention Act, 1950, with the exception of Sec.

14 thereof did not contravene any of the Articles of the Constitution and even though Sec. 14 was ultra rites inas- much as it contravened the provisions of Art. 9.9, (5) of the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of Sec. 14 did not affect the validity of the Act as a whole, and the detention of the petitioner was not illegal.

FAZL ALl and MAHAJAN JJ.–Section 12, of the Act was also ultra vires, and since it contravened the very provi- sion in the 89 Constitution under which the Parliament derived its compe- tence to enact the law, the detention was illegal.

Held, by the Full Court (KANIA CJ., FAZL ALI, PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ.)–Section 14 of the Preventive Detention Act, 1950, contravenes the provisions of Art. 9.9. (5) of the Constitution in so far as it prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made or the representation made by him against the order of detention, and is to that extent ultra vires and void.

Per KANIA C.J., PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting).–Article 19 of the Consti- tution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub-cls. (a) to (e) and (g) in general, and sub-cl. (d) in particular, of cl. (1) of Art. 19 may be restricted or abridged; and the constitution- al validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in el. (5) of the said Article.

DAS J.–Article 19 (1) postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom of his person by reason of lawful detention as a result of a conviction for an offence or otherwise he cannot claim the right s under- sub-cls. (a) to (e) and (g) of Art. 19 (1); likewise if a citizen’s property is compulsorily ac- quired under Art. 31, he cannot claim the right under sub- el. (f) of Art. 19 (1) with respect to that property. In short the rights under sub-cls. (a) to (e) and (g) end where lawful detention begins and therefore the validity of a preventive detention Act cannot be judged by Arc. 19 (5).

MAHAJAN J.—Whatever be the precise scope of Art. 19 (1) (d) and Art.19(5) the provisions of Art. 19(5) do not apply to a law relating to preventive detention, inasmuch as ‘there is a special self-contained provision in Art. 22 regulating it.

FAZL ALI.J.–Preventive detention is a direct infringe- ment of the right guaranteed in Art. 19 (1) (d), even if a narrow construction is placed on the said sub-clause, and a law relating to preventive detention is therefore subject to such limited judicial review as is permitted by Art. 19 (5).

Per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.

(FAZL ALl J. dissenting).–The concept of the right “to move freely throughout the territory of India” referred to in Art. 19 (1) (d), of the Constitution is entirely differ- ent from the concept of the right to “personal liberty” referred to in Art. 21, and Art. 19 should not, therefore, be read as controlled by the provisions of Art. 21. The view that Art. 19 guarantees substantive rights and Art. 21 prescribes the procedure is incorrect. DAs J.–Article 19 protects some of the important attributes of personal liber- ty as independent rights and the expression “personal liber- ty” is used in Art. 21 as a compendious term 90 including within Rs meaning all varieties of rights which go to make up the personal liberties of men.

FAZL ALl J.–Even if it be assumed that Art. 19 (1) (d) does not refer to ” personal liberty” and that it bears the restricted meaning attributed to it,that is to say, R signi- fies merely the right to move from one locality to another, preventive detention must be held to affect this limited right of movement directly and substantially. One of the objects of preventive detention is to restrain a person detained from moving from place to place so that he may not spread disaffection or indulge in dangerous activities in the places he visits. The same consideration applies to the cases of persons who are interned or externed. Hence, externment, interment and certain other forms of restriction on movement have always been treated as kindred matters belonging to the same group or family, and the rule which applies to one must necessarily apply to the others.

Per KANIA C. J ,, PATANJALI SASTRI and DAS 35. (MAHAJAN

3. dissenting).–Article 22 does not form a complete code of constitutional safeguards relating to preventive detention.

To the extent that provision is made in Art. 9.9, it cannot be controlled by Art. 9,1; but on points of procedure which expressly or by necessary implication are not dealt with by Art. 22, Art. 9.1 will apply. DAS J.–Art. 21 protects substantive rights by requiring a procedure and Art. 9.9.

lays down the minimum rules of procedure that even the Parliament cannot abrogate or overlook. MAHAJAN J.–Art. 99.

contains a self-contained code of constitutional safeguards relating to preventive detention and cannot be examined or controlled by the provisions of Art. 21. The principles underlying Art. 21 are however kept in view in Art. 22 and there is no conflict between these articles. MUKHERJEA J.

–Even assuming that Art. 22 is not a self-contained code relating to preventive detention and that Art. 21 would apply, it is .not permissible to supplement Art. 22 by the application of rules of natural justice. FAZL ALI J.–Art.

22. does not form an exhaustive code by itself relating to preventive detention. Parliament can make further provi- sions and if it has done so Art. 19 (5) may be applied to see if those provisions have transgressed the bounds of reasonableness.

Per KANIA C.J., MUKHERJEA and DAS JJ. (FAZL ALI J. dis- senting).–In Art. 9.1 the word ‘law” has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice; and “procedure established by law” means procedure established by law made by the State, that is to say, the Union Parliament or the Legislatures of the States.

It is not proper to construe this expression in the light of the meaning given to.the expression “due process of law” in the American Constitution by the Supreme Court of America.

FATANJALI SASTRI cl.– “Law” in Art. 21 does not mean the jus naturale of civil law but means 91 positive or State-made law. “Procedure established by law” does not however mean any procedure which may be prescribed by a competent legislature, but the ordinary well-estab- lished criminal procedure, i.e., those settled. usages and normal modes of procedure sanctioned by the Criminal Proce- dure Code, which is the general law of criminal proce- dure in this country. The only alternative to this con- struction, if a constitutional transgression is to be avoid- ed is to interpret the reference to “law” as implying a constitutional ‘amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment that could modify or override a fundamental right without contra- vening Art. 13 (2).

FAZL, ALI J.–There is nothing revolutionary in the view that “procedure established by law “must include the four principles of elementary justice which inhere in and are at the root of all civilized systems of law, and which have been stated by the American Courts and jurists as consisting in (1) notice, (2) opportunity to be heard, (3) impartial tribunal and (4) orderly course of procedure. These four principles are really different aspects of the same right, namely, the right to be heard before one is condemned. Hence the words “procedure established by law “, whatever its exact meaning be, must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal.

Per KANIA C.J., FAZL ALI, PATANJALI SASTRI, MAHAJAN and DAS JJ.–Section 3 of the Preventive Detention Act, 1950, does not delegate any legislative power to an executive officer but merely confers on such officer a discretion to enforce the law made by the legislature, and is not there- fore invalid on this ground. The fact that the section does not provide an objective standard for determining whether the requirements of law have been complied with, is not a ground for holding that it is invalid. FAZL ALI J.—Section 3 is however a reasonable provision only for the first step, i.e., for arrest and initial detention and must be followed by some procedure for testing the so-called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.

Per KANIA C. J., MAHAJAN and DAS JJ.—Section 7 of the said Act is not invalid merely because it does not provide for an oral hearing or an opportunity to lead evidence but only gives right to make a representation. Right to an oral hearing and right to give evidence are not necessarily implied in the right to make a representation given by Art.

Per KANIA C.J., and MAHAJAN J.–The provision contained in Sec. 11 that a person may be detained for such period as the 12-A 92 State thinks fit does not contravene Art. 22 (7) and it is not therefore invalid.

Per KANIA. C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ. (FAZL ALI and MAHAJAN JJ. dissenting).–Article 22 (7) means that Parliament may prescribe either the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without reference to an advisory board. It is not necessary that the Parliament should prescribe both. The matters referred to in clauses (a) and (b) of sub-see. (1) of Sec.

12 constitute a sufficient description of such circumstances or classes of cases and Section 12 is not therefore open to the objection that it does not comply with Art. 22 (7) DAS J.–Parliament has in act and substance prescribed both in clauses (a) and (b) of sub-sec. (1) of Sec. 12.

FAZL ALI and MAJAN JJ.–Article 22 (7) Means that both the circumstances and the class or classes of cases (which are two different expressions with different meanings and connotations) should be prescribed, and the prescription of one without the other will not be enough. The enumeration of the subjects for reasons connected with which a law of preventive detention could be made contained in els. (a) and (b) of sub-see. (1) of Sec.12 does not amount to prescribing the circumstances under which, or the class or classes of cases in which, a person can be detained for more than three months.

Per KANIA C.J.–While it is not proper to take into consideration the individual opinions of members of Parlia- ment or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. PATANJAYLI SASTRI J.–In construing the provisions of an Act, speeches made in the course of the debates on the bill should not be taken into consideration. MUKHERJEA J.–In construing the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee.

ORIGINAL JURISDICTION: Petition No. XIII of 1950.

Application under Art. 32 (1) of the Constitution of India for a writ of habeas corpus against the detention of the appellant in the Madras jail in pursuance of an order of detention made under the Preventive Detention Act, 1950.

The material facts of the case and arguments of counsel are set out in detail in the judgments. The relevant provisions of the Preventive Detention Act, 1950, are printed below.

1. Short title, extent and duration.–This Act may be called the Preventive Detention Act, 1950.

(2) It extends to the whole of India …..

(3) It shall cease to have effect on the 1st day of April, 1951, as respects things done or omitted to be done before that date.

2. Definitions.–In this Act, unless the context other- wise requires,– (a) “State Government” means, in relation to a Part C State, the Chief Commissioner of the State; and (b) “detention order” means an order made under Section 3.

3. Power to make orders detaining certain persons.–(1) The Central Government or the State Government may— (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to– (i) the defence of India, the relations of India foreign power, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services to the community, or (b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do, make an order directing that such person be detained.

(2) Any District Magistrate or Sub-Divisional Magistrate, or Presidency-town, the Commissioner of Police, may, if satisfied provided in sub-clauses (ii) and (iii) of clause (a) of sub-section (1), exercise the power conferred by the said sub-section.

(3) When any order is made under this section by a Dis- trict Magistrate, Sub-Divisional Magistrate or Commissioner of Police, he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessi- ty for the order.

7. Grounds of order of detention to be disclosed to persons affected by the order.–(1) When a person is de- tained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order his been made, and shall afford him the earliest opportunity of making a representa- tion against the order, in a case where such order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subordinate thereto, to the State Government.

11. Confirmation of detention order.–In any case where the Advisory Board has reported that* there is in Rs opinion suffcient cause for the detention of the person concerned, the Central Government or the State Government. as the case may be, may confirm the detention order and continue the detention of the person concerned for’ such period as it thinks fit.

12. Duration of detention in certain cases.–(1) Any person detained in any of the following classes of cases or under ‘my 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 wish 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 a State or the maintenance of public order. * * *

14. Disclosure of grounds of detention, etc.–(1) No court shall, except for the purpose of a prosecution for an offence punishable under sub-section (9,), allow any state- ment to be made, or any evidence to be given. before it of the substance of any communication made under section 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 notwithstanding anything contained in any other law, no court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that par of the report of an Advisory Board which is confidential.

(2) It shall be an offence punishable with imprisonment for term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1):

Provided that nothing in this sub-section shall apply to a disclosure made’ to his legal adviser by a person who is the subject of a detention order.

M. K. Nambiar (S. K. Aiyar and V.G. Rao, with him) for the petitioner.

K. Rajah Aiyar, Advocate-General of Madras (C. R.

Pattabi Raman and R. Ganapathi, with him) lot the State of Madras.

M.C. Setalvad, Attorney-General for India (Jindralal, with him) for the Union of India.

95 1950. May 19. The following Judgments were delivered.

KANIA C. J–This is a petition by the applicant under article 32 (1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail. In the petition he has given various dates showing how he has been under detention since December, 1947. Under the ordi- nary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside. While he was tires under detention under one of the orders of the Madras State Government, on the 1st of March, 1950, he was served with an order made under section 3 (1) of the Preventive Detention Act, IV of 1950. He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Con- stitution. He has also challenged the validity of the order on the ground that it is issued mala fide. The burden of proving that allegation is on the applicant. Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition.

The question of the validity of Act IV of 1950 was argued before us at great length. This is the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights has come for discussion before us. The Court is indebted to the learned counsel for the applicant and the Attorney-General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.

In order to appreciate the rival contentions it is useful first to bear in mind the general scheme of the Constitution. Under article 53 of the Constitution the executive power of the Union is vested in the President and is to be exercised by him in accordance with the 96 Constitution either directly or through officers subordinate to him. The legislative powers of the Union are divided between the Parliament and Legislatures of the States. The ambit and limitations on their respective powers are found in article 246 read with article 245, Schedule VII, Lists 1,2 and 3 of the Constitution. For the Union of India the Supreme Court is established and its powers and jurisdiction are set out in articles 124 to 147. This follows the pat- tern of the Government of India Act, 1935, which was the previous Constitution of the Government of India. Unlike the American Constitution, there is no article vesting the judicial power of the Union of India in the Supreme Court.

The material points substantially altering the edifice are first in the Preamble which declares india a Sovereign Democratic Republic to secure to all its citizens justice, liberty and equality and to promote among them all, frater- nity. Part III of the Constitution is an important innova- tion. It is headed “Fundamental Rights.” In that Part the word “State” includes both the Government of the Union and the Government of the States. By article 13 it is expressly provided that all laws in force in the territory of India, immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of this Part, to the extent of such inconsistency, are void. There- fore, all laws in operation in India on the day the Consti- tution came into force, unless otherwise saved, to the extent they are inconsistent with this Chapter on Fundamen- tal Rights, become automatically void. Under article 13 (2) provision is made for legislation after the Constitution comes into operation. It is there provided that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contraven- tion of this clause shall to the extent of the contraven- tion, be void. Therefore, as regards future legislation also the Fundamental Rights in Part III have to be respected and, unless otherwise saved by the provisions of the Consti- tution, they will be void to the extent they contravene the provisions of Part III. Under article 245 (1) the legisla- tive powers conferred under 97 article 246 are also made “subject to the provisions of this Constitution,” which of course includes Part III dealing with the Fundamental Rights. The term law in article 13, is expressed to be wide enough to include Acts, Ordinances, Orders, Bye-laws, Rules, Regulations and even custom or usage having, in the territory of India, the force of law.

The rest of this Part is divided in seven divisions. “Right to Equality” is found in articles 14-18, “Eight to Freedom” in articles 19-22, “Right against Exploitation” in articles 23 and 24, “Right to Freedom of Religion” in articles 25-28, “Cultural and Educational Rights” in articles 29 and 30, “Right to Property” in article 31 and “Right to Constitu- tional Remedies” in articles 32-35. In this case we are directly concerned only with the articles under the caption “Right to Freedom” (19-22) and article 32 which gives a remedy to enforce, the rights conferred by this Part. The rest of the articles may have to be referred to only to assist in the interpretation of the above-mentioned arti- cles.

It is obvious that by the insertion of this Part the powers of the Legislature and the Executive, both of the Union and the States, are further curtailed and the right to enforce the Fundamental Rights found in Part III by a direct application to the Supreme Court is removed from the legislative control. The wording of article 32 shows that the Supreme Court can be moved to grant a suitable relief, mentioned in article 32 (2), only in respect of the Funda- mental Rights mentioned in Part III of the Constitution.

The petitioner is detained under a preventive detention order, made under Act IV of 1950, which has been passed by the Parliament of India. In the Seventh Schedule of the Constitution, List I contains entries specifying items in respect of which the Parliament has exclusive legislative powers. Entry 9 is in these terms: “preventive detention for reasons connected with Defence, Foreign Affairs or the Security of India; persons subjected to such detention.” List III of that Schedule enumerates topics on which both the Union and the States have concurrent legislative 98 powers. Entry 3 of that List is in these terms: “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 subjected to such detention.” It is not disputed that Act IV of 1950 is covered by these two Entries in List I and List III of the Seventh Schedule. The contention of the peti- tioner is that the impugned legislation abridges or in- fringes the rights given by articles 19-21 and is also not in accordance with the permissive legislation on preventive detention allowed under articles 22 (4) and (7) and in particular is an infringement of the provisions of article 22 (5). It is therefore necessary to consider in detail each of these articles and the arguments advanced in respect thereof.

Article 19 is for the protection of certain rights of freedom to citizens. It runs as follows :– “19. (1)–All citizens shall have the right-(a) to free- dom 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.

“(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 relat- ing 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.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposts, or prevent the State from making any law imposing, in the interests of public order 99 reasonable restrictions on the exercise of the right con- ferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(5) Nothing in sub-clauses (d), (e) and (f) of the said clause 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 either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restric- tions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub- clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any pro- fession or carrying on any occupation, trade or business.” Clause (2) specifies the limits up to which the abridge- ment- of the right contained in 19 (1) (a) may be permitted.

it is an exception. Similarly clause (3) sets out the limit of abridgement of the right in 19 (1) (b) and clause (4) specifies such limits in respect of the right in 19 (1) (c).

Clause (5) is in respect of the rights mentioned in 19 (1) (d), (e) and (f) and clause (6) is in respect of the rights contained in 19 (1) (g). It cannot be disputed that the articles collected under the caption “Right to Freedom” have to be considered together to appreciate the extent of the Fundamental Rights. In the first place it is necessary to notice that 100 there is a distinction between rights given to citizens and persons. This is clear on a perusal of the provisions of article 19 on the one hand and articles 20, 21 and 22 on the other. In order to determine whether a right is abridged or infringed it is first necessary to determine the extent of the right given by the articles and the limitations pre- scribed in the articles themselves permitting its curtail- ment. The inclusion of article 13 (1) and (2) in the Con- stitution appears to be a matter of abundant caution. Even in their absence, if any of the fundamental rights was infiringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid. The existence of article 13 (1) and (2) in the Constitution therefore is not material for the decision of the question what fundamental right is given and to what extent it is permitted to be abridged by the Constitution itself.

As the preventive detention order results in the deten- tion of the applicant in a cell it was contended on his behalf that the rights specified in article 19 (1) (a), (b), (c), (d), (e) and (g) have been infringed. It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub-clauses (b), (c), (d), (e) and (g). Although this argu- ment is advanced in a case which deals with preventive detention, if correct, it-should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code. So considered, the argument must clearly be rejected.

In spite of the saving clauses (2)to(6) permitting abridge- ment of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even ordinary assault, will be illegal. ‘Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided. In my opinion, such result is clearly not the outcome of the Constitution. The article has to be read without any pre-conceived notions. So read, it clearly means 101 that the legislation to be examined must be directly in respect of one of the rights mentioned in the subclauses.

If there is a legislation directly attempting to control a citizen’s freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise. If, however, the legisla- tion is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these subclauses is abridged, the question of the application of article 19 does not arise. The true approach is only to consider the directness of the legisla- tion and not what will be the result of the detention other- wise valid, on the mode of the detenue’s life. On that short ground, in my opinion, this argument about the in- fringement of the rights mentioned in article 19 (1) gener- ally must fail. Any other construction put on the article, it seems to me. will be unreasonable.

It was next urged that while this interpretation may meet the contention in respect of rights under article 19 (1) (a), (b), (c), (e) and (g), the right given by article 19 (1) (d) is left untouched. That sub-clause expressly gives the right “to move freely throughout the territory of India.” It was argued that by the confinement of the peti- tioner under the preventive detention order his right to move freely throughout the territory of India is directly abridged and therefore the State must show that the im- pugned legislation imposes only reasonable restrictions on the exercise of that right in the interests of the general public or for the protection of the interests of any Sched- uled Tribe, under article 19 (5). The Court is thus en- joined to inquire whether the restrictions imposed on the detained person are reasonable in the interests of the general public. Article 14 of the Constitution gives the right to equality in these terms:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” 102 It was argued that the words “within the territory of India” are unnecessary in that article because the Parlia- ment is supreme to make laws operative only within the territory of India. Without those words also the article will bear the same meaning. Similarly, it was urged that the words “territory of India” in article 19 (1) (d) may be treated as superfluous, and preventive detention would thus be an abridgement of the right to move freely. In my opin- ion, this rule of construction itself is faulty. Because certain words may be considered superfluous (assuming them to be. so in article 14 for the present discussion) it is quite improper to assume that they are superfluous wherever found in the rest of the Constitution. On the contrary, in my opinion, reading sub-clause (d) as a whole the words “territory of India” are very important. What is sought to be protected by that sub-clause is the right to freedom of movement, i.e., without restriction, throughout the terri- tory of India. Read with their natural grammatical.. mean- ing the sub-clause only means that if restrictions are sought to be put upon movement of a citizen from State to State or even within a State such restrictions will have to be tested by the permissive limits prescribed in clause (5) of that Article. Sub-clause (d) has nothing to do with detention, preventive or punitive. The Constitution men- tions a right to freedom of movement throughout the territo- ry of India, Every word of that clause must be given its true and legitimate meaning and in the construction of a Statute, particularly a Constitution, it is improper. to omit any word which has a reasonable and proper place in it or to refrain from giving effect to its meaning. This position is made quite clear when clause (5) is read along with this sub-clause. It permits the imposition of reasona- ble. restrictions on the exercise of such right either in the interest of general public or the protection of the interest of any Scheduled Tribe. It is difficult to conceive of a reasonable restriction necessary in the interests of the general public for confining a person in a cell. Such restriction may be appropriate to prevent a person from going from one Province to another or 103 one area to another, having regard to local conditions prevailing in particular areas. The point however is made abundantly clear by the alternative, viz., for the protec- tion of the interests of any Scheduled Tribe. What protec- tion of the interests of a Scheduled Tribe requires the confinement of a man in a cell ? On the other hand, pre- venting the movement of a person from one part of the terri- tory of India to another and the question of reasonable restriction imposed to protect the interests of a Scheduled Tribe is clearly intelligible and often noticed in the course of the administration of the country. Scheduled Tribes have certain rights, privileges and also disabili- ties. They have their own civilization, customs and mode of life and prevention of contact with persons or groups with a particular Scheduled Tribe may be considered undesirable during a certain time or in certain conditions. The legis- lative history of India shows that Scheduled Tribes have been given a separate place on these grounds. Reading article 19 as a whole, therefore, it seems to me that it has no application to a legislation dealing with preventive or punitive detention as its direct object. I may point out that the acceptance of the petitioner’s argument on the interpretation of this clause will result in the Court being called upon to decide upon the reasonableness of several provisions of the Indian Penal Code and several other penal legislations as abridging this right. Even under clause (5), the Court is permitted to apply the test of reasonable- ness of the restrictions or limits not generally, but only to the extent they are either in the interests of the gener- al public, e.g., in case of an epidemic, riot, etc., or for the protection of the interests of any Scheduled Tribe. In my opinion, this is not the intention of the Constitution.

Therefore the contention urged in respect of article 19 fails.

It was argued that article 19 and article 21 should be read together as implementing each other. Article 19 gave substantive rights to citizens while article 21 prescribed that no person can be deprived of his life and personal liberty except by procedure 104 established by law. Even so, on a true construction of article 19, it seems to me that both preventive and punitive detention are outside the scope of article 19.

In order to appreciate the true scope of article 19 it is useful to read it by itself and then to consider how far the other articles in Part HI affect or control its meaning.

It is the first article under the caption “Right to Freedom .” It gives the rights mentioned in 19 (1) (a) to (g) to all citizens of India. These rights read by them- selves and apart from the controls found in clauses (2) to (6) of the same article, specify the different general rights which a free citizen in a democratic country ordi- narily has. Having specified those rights, each of them is considered separately from the point of view of a similar right in the other citizens, and also after taking into consideration the principle that individual liberty must give way, to the extent it is necessary, when the good or safety of the people generally is concerned. Thus the right to freedom of speech and expression is given by 19 (1) (a). But clause (2) provides that such right shall not prevent the operation of a law which relates to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. Clause (2) thus only emphasizes that while the individual citizen has a free right of speech or expression, he cannot be permit- ted to use the same to the detriment of a similar right in another citizen or to the detriment of the State. Thus, all laws of libel, slander, contempt of Court or laws in respect of matters which offend against decency or morality are reaffirmed to be operative in spite of this individual right of the citizen to freedom of speech and expression. Simi- larly; that right is also subject to laws which prevent undermining the security of the State or against activities which tend to overthrow the State. A similar analysis of clauses f3) and (4) shows similar restrictions imposed on similar grounds. In the same way clause (5) also permits reasonable restrictions in the exercise of the right to freedom of movement throughout the territory of India, the right to reside and settle in any part of the 105 territory of India or the right to acquire, hold and dispose of property, being imposed by law provided such reasonable restrictions on the exercise of such right are in the inter- est of the general’ public. The Constitution further pro- vides by the same clause that similar reasonable restric- tions could be put on the exercise of those rights for the protection of the interest of a Scheduled Tribe. This is obviously to prevent an argument being advanced that while such restriction could be put in the interest of general public, the Constitution did not provide for the imposi- tion of such restriction to protect the interests of a smaller group of people only. Reading article 19 in that way as a whole the only concept appears to be that the specified rights of a free citizen arc thus controlled by what the framers of the Constitution thought were necessary restric- tions in the interest of the rest of the citizens.

Reading article 19 in that way it appears to me that the concept of the right to move freely throughout the territo- ry of India is an entirely different concept from the right to “personal liberty” contemplated by article 21. “Person- al liberty” covers many more rights in one sense and has a restricted meaning in another sense. For instance, while the right to move or reside may be covered by the expression ,’personal liberty” the right to freedom of speech (men- tioned in article 19 (1) (a)) or the right to acquire, hold or dispose of property (mentioned in 19 (1) (f)) cannot be considered a part of the personal liberty of a citizen.

They form part of the liberty of a citizen but the limita- tion imposed by the word “personal”leads me to believe that those rights are not covered by the expression personal liberty. So read there is no conflict between articles 19 and 21. The contents and subject matters of articles 19 and 21 are thus not the same and they proceed to deal with the rights covered by their respective words from totally different angles. As already mentioned in respect of each of the rights specified in sub-clauses of article 19 (1) specific limitations in respect of each is provided, while the expression “personal 106 liberty” in article 21 is generally controlled by the gener- al expression “procedure established by law.” The Constitu- tion, in article 19, and also in other articles in Part III, thus attempts to strike a balance between individ- ual liberty and the general interest of the society. The restraints provided by the Constitution on the legislative powers or the executive authority of the State thus operate as guarantees of life and personal liberty of the individu- als.

Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or sleep when one likes or to work or not to work as and when one pleases and sever- al such rights sought to be protected by the expression “personal liberty” in article 21, is quite different from restriction (which is only a partial control) of the right to move freely (which is relatively a minor right of a citizen) as safeguarded by article 19 (1) (d). Deprivation of personal liberty has not the same meaning as restriction of free movement in the territory of India. This is made clear when the provisions of the Criminal Procedure Code in Chapter VIII relating to security of peace or maintenance of public order are read. Therefore article 19 (5) cannot apply to a substantive law depriving a citizen of personal liberty. I am unable to accept the contention that the word “deprivation” includes within its scope “restriction” when interpreting article 21. Article 22 envisages the law of preventive detention. So does article 9.46 read with Schedule Seven, List I, Entry 9, and List III, Entry 3.

Therefore, when the subject of preventive detention is specifically dealt with in the Chapter on Fundamental Rights I do not think it is proper to consider a legisla- tion ‘ permitting preventive detention as in conflict with the rights mentioned in article 19 (1). Article 19 (1) does not purport to cover all aspects of liberty or of personal liberty. In that article only certain phases of liberty are dealt with. “Personal liberty” would primarily mean liberty of the physical body. The rights given under article 19 (1) do not directly come under that description.

They are rights which accompany the freedom or liberty of the person. By their very 107 nature they are freedoms of a person assumed to be in full possession of his personal liberty. If article 19 is considered to be the only article safeguarding personal liberty several well-recognised rights, as for instance, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution. I do not think that is the intention. It seems to me improper to read article 19 as dealing with the same subject as article 21. Article 19 gives the rights specified therein only to the citizens of India while arti- cle 21 is applicable to all persons. The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India. Moreover, the protection given by article 21 is very general. It is of “law”–whatever that expression is interpreted to mean. The legislative restrictions on the law-making powers of the legislature are not here prescribed in detail as in the case of the rights specified in article 19. In my opinion there- fore article should be read as a separate complete article.

Article 21 which is also in Part III under the caption “Right to Freedom” runs as follows :- “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This article has been strongly relied upon by the peti- tioner in support of his contention that the impugned Act is ultra vires the Parliament as it abridges the right given by this article to every person. It was argued that under the Constitution of the United States of America the corre- sponding provision is found in the 5th and 14th Amendments where the provision, inter alia, is “that no person shall be deprived of his life or liberty or property except by due process of law.” It was contended for the petitioner that the Indian Constitution gives the same protection to every person in India, except that in the ‘United States “due process of law” has been .construed by its Supreme Court to cover both 108 substantive and procedural law, while in India only the protection of procedural law is guaranteed. It was contend- ed that the omission of the word “due” made no difference to the interpretation of the words in article 21. The word “established”‘ was not equivalent to “prescribed”. It had a wider meaning. The word “law” did not mean enacted law because that will be no ‘legislative protection at all. If so construed, any Act passed by the Parliament or the State Legislature, which was otherwise within its legislative power, can destroy or abridge this right. On the same line of reasoning, it was argued that if that was the inten- tion there was no necessity to put this as a fundamental right in Part III at all. As to the meaning of the word “law” it was argued that it meant principles of natural justice. It meant “jus”, i.e., law in the abstract sense of the principles of natural justice, as mentioned in standard works of Jurisprudence, and not “lex”, i.e., enact- ed law. Against the contention that such construction will leave the meaning vague, it was argued that four principles of natural justice recognised in all civilized countries were covered, in any event, by the word “law”. They are:

(1) An objective test, i.e., a certain, definite and ascer- tainable rule of human conduct for the violation of which one can be detained; (2) Notice of the grounds of such detention; (3) An impartial tribunal, administrative, judi- cial or advisory, to decide whether the detention is justi- fied; and (4) Orderly course of procedure, including an opportunity to be heard orally (not merely by making a written representation) with a right to lead evidence and call witnesses.

In my opinion, this line of approach is not proper and indeed is misleading. As regards the American Constitution its general structure is noticed in these words in “The Government of the United States” by Munro (5th Edition) at page 53: “The architects of 1787 built only the basement.

Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of 109 James Russell Lowell, is still being ‘woven on the roaring loom of time’. That is what the framers of the original Constitution intended it to be. Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time. They sought merely to pro- vide a starting point.” The same aspect is emphasized in Professor Willis’s book on Constitutional Law and Cooley’s Constitutional Limitations. In contrast to the American Constitution, the Indian Constitution is a very detailed one. The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legisla- tures. The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other.

Four marked points of distinction between the clause in the American Constitution and article 21 of the Constitution of India may be noticed at this stage. The first is that in U.S A. Constitution the word “liberty” is used simpliciter while in India it is restricted to personal liberty. (2) In U.S.A. Constitution the same protection is given to proper- ty, while in India the fundamental right in respect of property is contained in article 31. (3) The word “due” is omitted altogether and the expression “due process of law” is not used deliberately. (4) The word “established” is used and is limited to “Procedure” in Our article 21.

The whole argument of the petitioner is rounded on the meaning of the word “law” given to it by the Supreme Court of America. It seems unnecessary to embark on a discussion of the powers and jurisdiction of the Supreme Court of the ‘U.S.A. and how they came to enlarge or abridge the meaning of law in the expression “due process of law”. Without going into details, I think there is no justification to adopt the meaning of the word “law” as interpreted by the Supreme Court of U.S.A. in the expression “due 110 process of law” merely because the word “law” is used in article 21. The discussion of the meaning of “due process of law” found in Willis on Constitutional Law and in Coo- ley’s Constitutional Limitations shows the diverse meanings given to that expression at different times and under dif- ferent circumstances by the Supreme Court of U.S.A., so much so that the conclusion reached by these authors is that the expression. means reasonable law according to the view of the majority of the judges of the Supreme Court at a particular time holding office. It also shows how the meaning of the expression was widened or abridged in certain decades. Moreover, to control the meaning so given to that expression from time to time the doctrine of police powers was brought into play. That doctrine, shortly put, is that legislation meant for the good of the people generally, and in which the individual has to surrender his freedom to a certain extent because it is for the benefit of the people at large, has not to be tested by the touchstone of the “due process of law” formula.

Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause. The report may be read not to control the meaning of the article, but may be seen in case of ambiguity. In The Municipal Council of Sydney v. The Commonwealth(1), it was thought that individu- al opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution. The same opinion was expressed in United States v. Wong Kim Ark(2). The result appears to be that while it is not proper to take into consideration the indi- vidual opinions of Members of Parliament or Convention to construe the meaning of the particular clause, when a ques- tion is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be’ permitted. In the present case the debates were referred to to show that the expression “due process of law” was known to exist in the American Constitution (1) (1904) 1 Com. L.R. 208. (2) (169) U.S 649 at 699.

111 and after a discussion was not adopted by the Constituent Assembly in our Constitution. In Administrator General of Bengal v. Premlal Mullick(1), a reference to the proceedings of the Legislature which resulted in the passing of the Act was not considered legitimate aid in the construction of a particular section. The same reasons were held as cogent for excluding a reference to such debates in construing an Indian Statute. Resort may be had to these sources with- great caution and only when latent ambiguities are to be resolved. See Craies’ Statute Law (4th Edition) page 122, Maxwell on Interpretation of Statutes (9th Edition)pp. 28- 29 and Crawford on Statutory Construction (1940 Edition) p.

379, article 214. A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American article and the expression “due process of law” but they deliberately dropped the use of that expression from our Constitution.

No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous.Normally read, and without thinking of other Constitutions, the expression “procedure established by law” must mean procedure prescribed by the law of the State. If the Indian Constitution wanted to preserve to every person the protection given by the due process clause of the Ameri- can Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word “procedural” prefixed to “law.” However, the correct question is what is the right given by article 21 ? The only right is that no person shall be deprived of his life or liberty except according to procedure established by law. One may like that right to cover a larger area, but to give such a right is not the function of the Court; it is the function of the Constitution. To read the word “law” as meaning rules of natural justice will land one in (1) (1895)L.R. 221. A. 107. 15 15 112 difficulties because the rules of natural justice, as re- gards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard.

This is particularly so when in omitting to adopt “due process of law” it was considered that the expression “procedure established by law” made the standard specific.

It can not be specific except by reading the expression as meaning procedure prescribed by the legislature. The word “law” as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice. If so, there appears no reason why in this article it should receive this peculiar meaning.

Article 31 which is also in Part III and relates to the fundamental rights in respect of property runs as follows :- “No person shall be deprived of his property save by authority of law.” It is obvious that in that clause “law” must mean enact- ed law. The object of dealing with property under a differ- ent article appears more to provide the exceptions found in article 31 (2) to (6), rather than to give the word “law” a different meaning than the one given in article 21. The world “established” according to the Oxford Dictionary means “to fix, settle, institute or ordain by enactment or agree- ment.” The word “established” itself suggests an agency which fixes the limits. According to the dictionary this agency can be either the legislature or an agreement between the parties. There is therefore no justification to give the meaning of “jus” to “law” in article 21.

The phrase “procedure established by law” seems to be borrowed from article 31 of the Japanese Constitution. But other articles of that Constitution which expressly pre- serve other personal liberties in different clauses have to be read together to determine the meaning of “law” in the expression “procedure established by law.” These articles of the Japanese Constitution have not been incorporated in the Constitution of India in the same language. It is not shown that the word “law” means “jus” in the Japanese Constitution. In the Japanese Constitution these 113 rights claimed under the rules of natural justice are not given by the interpretation of the words “procedure established by law” in their article 31. The word “due” in the expression “due process of law” in the American Consti- tution is interpreted to mean “just,” according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is “due” from otherwise, according to law. The deliberate omission of the word “due” from article 21 lends strength to the conten- tion that the justiciable aspect of “law”, i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word “due”, the limitation imposed by the word “procedure” and the insertion of the word “established” thus brings out more clearly the idea of legislative prescription in the expres- sion used in article 21. By adopting the phrase “procedure established by law” the Constitution gave the legislature the final word to determine the law.

Our attention was drawn to The King v. The Military Governor of the Hair Park Camp (‘), where articles 6 and 70 of the Irish Constitution are discussed. Under article 6 it is provided that the liberty of the person is inviolable and no person shall be deprived of such except “in accord- ance with law” ……In article 70 it is provided that no one shall be tried “save in due course of law” and extraor- dinary Courts were not permitted to be established except the Military Courts to try military offences. The expres- sion “in accordance with law” was interpreted to mean not rules of natural justice but as the law in force at the time. The Irish Court gave the expression “due course of law” the meaning given to it according to the English law and not the American law. It was observed by Lord Atkin in Eshugbayi Eleko v. Officer Administering the Government of Nigeria C), that in accordance with British Jurispru- dence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice.

(1) [1924] 2 Irish Reports K.B. 104. (2) [1931] A.C.

(62 at 670.

114 In The King v. The Secretary of State for Home Affairs(1), Scrutton LJ. observed: “A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction.” It seems very arguable that in the whole set-up of Part III of our Constitution these principles only remain guaranteed by article 21.

A detailed discussion of the true limits of article 21 will not be necessary if article 22 is considered a code to the extent there are provisions therein for preventive detention. In this. connection it may be noticed that the articles in Part III deal with different and separate rights. Under the caption “Right to Freedom” articles 19–22 are grouped but each with a separate marginal note.

It is obvious that article 22 (1) and (2) prescribe limita- tions on the right given by article 21. If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22 (1) and (2), although they infringe the personal liberty of the individual, will be legal, because that becomes the established legal proce- dure in respect of arrest and detention. Article 22 is for protection against arrest and detention in certain cases, and runs as follows :– “22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2.) Every person who is arrested and detained in custo- dy shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply(a) to any person who for the time being is an enemy alien; or (1) (1923) 2 K.B. 361 at 382.

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

(4) No law providing for preventive detention shall authorize 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 suffi- cient 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 (b) of clause 17); or (b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) 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.

Nothing in clause (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 provid- ing 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 learned Attorney-General contended that the subject of preventive detention does not fall under 116 article 21 at all and is covered wholly by article 22.

According to him, article 22 is a complete code. I am unable to accept that contention. It is obvious that in respect of arrest and detention article 22 (1) and (2) provide safeguards. These safeguards are excluded in the case of preventive detention by article 22 (3), but safe- guards in connection with such detention are provided by clauses (4) to (7) of the same article. It is therefore clear that article 21 has to be read as supplemented by article 22. Reading in that way the proper mode of construc- tion will be that to the extent the procedure is prescribed by article 22 the same is to be observed; otherwise article 21 will apply. But if certain procedural safeguards are expressly stated as not required, or specific rules on certain points of procedure are prescribed, it seems im- proper to interpret these points as not covered by article 22 and left open for consideration under article 21. To the extent the points are dealt with, and included or excluded,, article 22 is a complete code. On the points of procedure which expressly or by necessary implication are not dealt with by article 22, the operation of article 21 will remain unaffected. It is thus necessary first to look at article 22 (4) to (7) and next at the provisions 0 the impugned Act to determine if the Act or any of its provi- sions are ultra vires. It may be noticed that neither the American nor the Japanese Constitution contain provisions permitting preventive detention,. much less laying down limitations on such right of detention, in normal timeS, i.e., without a declaration of emergency. Preventive deten- tion in normal times,. i.e., without the existence of an emergency like war,. is recognised as a normal topic of legislation in List I. Entry 9, and List III, Entry 3, of the Seventh Schedule. Even in the Chapter on Fundamental Rights article 22 envisages legislation in respect of pre- ventive detention in normal times. The provisions of article 22 (4) to (7) by their very wording leave unaffected the large powers of legislation on this point and emphasize particularly by article 22 (7) the power of the Parliament to deprive a person of a right to have his case considered by an advisory board. Part III and.

117 article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on this subject would have been quite unrestricted. Parliament could have made a law without any safeguard or any procedure for preventive detention. Such an autocratic supremacy of the legislature is certainly cut down by article 21. There- fore, if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provi- sions of Part III or article 22 (4) to (7), the Preventive Detention Act must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act.

Article 22 (4) opens with a double negative. Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall contain .a provision establishing an advisory board, (consisting of persons with the qualifications mentioned in sub-clause (a)), and which has to report before the expira- tion of three months if in its opinion there was sufficient cause for such detention. This clause, if it stood by itself and without the remaining provisions of article 22, will apply both to the Parliament and the State Legislatures.

The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22 (7) (b). Again the whole of this sub-clause is made inoperative by article 22 (4) (b) in respect of an Act of preventive detention passed by Parlia- ment under clauses (7) (a) .and (b). Inasmuch as the im- pugned Act is an Act of the Parliament purported to be so made, clause 22 (4) has no operation and may for the present discussion be kept aside. Article 22 prescribes that when any person under a preventive detention law is detained, the authority making the order shall, as soon as may be, commu- nicate to such person the grounds on which . the order has been made and shall afford him the 118 earliest opportunity of making a representation against the order. This clause is of general operation in respect of every detention order made under any law permitting deten- tion. Article 22 (6) permits the authority making the order to withhold disclosure of facts which such authority consid- ers against the public interest to disclose. It may be noticed that this clause only permits the non-disclosure of facts, and reading clauses (5) and (6) together a distinc- tion is drawn between facts and grounds of detention.

Article 22 (4) and (7) deal not with the period of detention only but with other requirements in the case of preventive detention also. They provide for the establishment of an advisory board, and the necessity of furnishing grounds to the detenue and also to give him a right to make a represen- tation. Reading article 22 clauses (4) and (7) together it appears to be implied that preventive detention for less than three months, without an advisory board, is permitted under the Chapter on Fundamental Rights, provided such legislation is within the legislative competence of the Parliament or the State Legislature, as the case may be.

Article 22 (5) permits the detained person to make a representation. The Constitution is silent as to the person to whom it has to be made, or how it has to be dealt with.

But that is the procedure laid down by the Constitution. It does not therefore mean that if a law made by the Parliament in respect of preventive detention does not make provision on those two points it is invalid. Silence on these points does not make the impugned Act in contravention of the Constitution because the first question is what are the rights given by the Constitution in the case of preventive detention. The contention that the representation should be to an outside body has no support in law. Even in the Liversidge case the representation had to be made to the Secretary of State and not to another body. After such representation was made, another advisory board had to consider it, but it was not necessary to make the represen- tation itself to a third party. Article 22 (4) and (7) permit the non-establishment of an advisory board expressly in a parliamentary legislation- 119 providing for preventive detention beyond three months.

If so, how can it be urged that the nonestablishment of an advisory. board is a fundamental right violated by the procedure prescribed in the Act passed by the Parliament? The important clause to be considered is article 22 (7).

Sub-clause (a) is important-for this case. In the case of an Act of preventive detention passed by the Parliament this clause contained in the Chapter on Fundamental Rights, thus permits detention beyond a period of three months and ex- cludes the necessity of consulting an advisory board, if the opening words of the sub-clause are complied with. Sub- clause (b) is permissive. It is not obligatory on the Parliament to prescribe any maximum period. It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of sub-clause (7) itself and the Court cannot help in the matter. Subclause (c) permits the Parliament to lay down the procedure to be followed by the advisory board in an inquiry under sub-clause (a) of clause (4). I am unable to accept the contention that article 22 (4) (a) is the rule and article 22 (7) the exception. I read them as two alternatives provided by the Constitution for making laws on preventive detention.

Bearing in mind the provisions of article 22 read with article 246 and Schedule VII, List I, Entry 9, and List III, Entry 3, it is thus clear that the Parliament is empowered to enact a law of preventive detention (a) for reasons connected with defence, (b) for reasons connected with foreign affairs, (c) for reasons connected with the security of India; and (under List III), (d) for reasons connected with the security of a State, (e) for reasons connected with the maintenance of public order, or (f) for reasons connect- ed with the maintenance of supplies and services essential to the community. Counsel for the petitioner has challenged the validity of several provisions of the Act. In respect of the construction of a Constitution Lord Wright in James v. The Commonwealth of Australia(1), (1) (1936) A. 0. 578 at 614.

16 120 observed that “a Constitution must not be construed in any narrow and pedantic sense.” Mr. Justice Higgins in Attorney-General of New South Wales v. Brewery Employees’ Union (1), observed: “Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting–to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be.” In In re The Central Provinces and Berar Act XIV of 1938 (“‘), Sir Maurice Gwyer C.J. after adopting these observations said: “especially is this true of a Federal Constitution with its nice balance of jurisdictions. I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the lan- guage of the enactment in the interest of any legal or con- stitutional theory or even for the purpose of supplying omissions or of correcting supposed errors.” There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the funda- mental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legisla- ture we cannot declare a limitation under the notion of hav- ing discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is diffi- cult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority. It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone.

But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and (1) (1908) 6 Com. L.R. 469 at 611-12. (2) (1939) F.C.R. 18 at 37.

121 paramount law settled by the deliberate wisdom of the nation that one can find a safe and. solid ground for the authority of Courts of justice to declare void ,any legislative enact- ment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too ‘indefinite either for its own security. or the protection of private rights.

It was first argued that by section 3 the Parliament had delegated its legislative power to the executive officer in detaining a person on his being satisfied of its necessi- ty. It was urged that the satisfaction must be of the legislative body. This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our Federal Court and by the English Courts. It is unnecessary to refer to all those cases. A reading of the various speeches in Liversidge v.

Anderson clearly negatives this contention. Section 3 of the impugned Act is no delegation of legislative power to make laws. It only confers discretion on the officer to enforce the law made by the legislature. Section 3 is also impugned on the ground that it does not provide an objective standard which the Court can utilize for determining whether the requirements of law have been complied with. It is clear that no such objective standard of conduct can be pre- scribed, except as laying down conduct tending to achieve or to avoid a particular object. For preventive detention action must be taken on good suspicion. It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period. As observed by Lord Finlay in The King v. Halliday (2), a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the restraint on a person. The contention is urged in respect of preventive detention and not punitive detention. Before a person can be held liable for an offence it is obvious that he should be in a position to know what he may do or not do, and an omission to do or not to do will result in the State (1) (1942) A.C. 2C6. (2) [1917] UKHL 1; (1917) A.C. 260 at 269.

122 considering him guilty according to the penal enactment.

When it comes however to preventive detention, the very purpose is to prevent the individual not merely from acting in a particular way but, as the sub-heads summarized above show, from achieving a particular object. It will not be humanly possible to tabulate exhaustively all actions which may lead to a particular object. It has therefore been considered that a punitive detention Act which sufficiently prescribes the objects which the legislature considers have not to be worked up to is. a sufficient standard to prevent the legislation being vague. In my opinion, therefore, the argument of the petitioner against section 3 of the impugned Act fails. It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires. The answer is found in article 22 (7) (b).

A perusal of the provisions of the impugned Act moreover shows that in section 12 provision is made for detention for a period longer than three months but not exceeding one year in respect of clauses (a) and (b) of that section. It appears therefore that in respect of the rest of the clauses mentioned in section 3 (1)(a)the detention is not contem- plated to be for a period longer than three months, and in such cases a reference to the advisory board under section 9 is contemplated.

Section 7 of the Act which is next challenged, runs on the same lines as article 22 (5) and. (6) and in my opinion infringes no provision of the Constitution. It was argued that this gave only the right of making a representation without being heard ‘orally or without affording an opportu- nity to lead evidence and therefore was not an orderly course of procedure, as required by the rules of natural justice. The Parliament by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also has given him a right to make a representation. The Act has thus complied with the requirements of article 22 (s). That clause, which prescribes what procedure has to be followed as a matter of fundamental right, is silent about the person detained having a right to be heard 123 orally or by a lawyer. The Constituent Assembly had before them the provisions of clause (1) of the same article. The Assembly having dealt with the requirements of receiving grounds and giving an opportunity to make a representation has deliberately refrained from providing a right to be heard orally. If so, I do not read the clause as guarantee- ing such right under article 22 (5). An “orderly course of procedure” is not limited to procedure which has been sanc- tioned by settled usage. New forms of procedure are as much, held even by the Supreme Court of America, due process of law as old forms, provided they give a person a fair opportunity to present his case. It was contended that the right to make a representation in article 22 (5) must carry with it a right to be heard by an independent tribunal;

otherwise the making of a representation has no substance because it is not an effective remedy. I am unable to read clause (5) of .article 22 as giving a fundamental right to be heard by an independent tribunal. The Constitution deliberately stops at giving the right of representation.

This is natural because under article 22 (7), in terms, the Constitution permits the making of a law by Parliament in which a reference to an advisory board may be omitted. To consider the right to make a representation as necessarily including a right to be heard by an independent judicial, administrative or advisory tribunal will thus be directly in conflict with the express words of article 22 (7).

Even according to the Supreme Court of U.S.A. a right to a judicial trial is not absolute. In the United States v.

Ju Toy (1), a question arose about the exclusion from entry into the States, of a Chinese who claimed to be a citizen of the United States. At page 263 the majority judgment con- tains the following passage :–” If for the purpose of argument, we assume that the Fifth Amendment applies to him, and that to deny entrance to a citizen is to deprive him ,of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial: That is the result of the cases which we have cited, and the almost necessary result of the (1) (198) U.S. 253 at 263.

124 power of the Congress to pass exclusion laws. That the decision may be entrusted to an executive officer, and that his decision is due process of law, was affirmed and ex- plained in several cases. It is unnecessary to repeat the often-quoted remarks of Mr. Justice Curtis, speaking for the whole Court, in Den Exden Murray v. Hoboken Land and Im- provement Company (1), to. show that the requirement of a judicial trial does not prevail in every case.” Again, I am not prepared to accept the’ contention that a right to be heard orally is an essential right of proce- dure even according to the rules of natural justice. The right to make a defence may be admitted, but there is nothing to support the contention that an oral interview is compulsory. In the Local Government Board v. Arlidge (2), the respondent applied to the Board constituted under the Housing Act to state a special case for the opinion of the High Court, contending that the order was invalid because (1) the report of the Inspector had been treated as a confi- dential document and had not been disclosed to the respond- ent, and (2) because the Board had declined to give the respondent an opportunity of being heard orally by the person or persons by whom the appeal was finally decided.

The Board rejected the application. Both the points were urged before the House of Lords on appeal. Viscount Haldane L.C. in his speech rejected the contention about the necessity of an oral hearing by observing “But it does not follow that the procedure of every tribunal must be.the same. In the case of a Court of law tradition in this country has prescribed certain principles to which, in the main, the procedure must conform. But what that procedure is to be in detail must depend on the nature of a tribunal.” In rejecting the contention about the disclosure of the report of the Inspector, the Lord Chancellor stated: “It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so. any more than it would have been bound to disclose all the minutes made on the papers in the office before (1) 18 HO.W. 272 at 280. (2) (1915) A.C. 120.

125 a decision was come to …… What appears to me to have been the fallacy of the judgment of the majority in the Court of appeal is that it begs the question at the begin- ning by setting up the test of the procedure of a Court of justice instead of the other standard which was laid down for such cases in Board of Education v. Rice (1). I do not think the Board was bound to hear the respondent orally provided it gave him the opportunities he actually had.” In spite of the fact that in England the Parliament is supreme I am unable to accept the view that the Parliament in making laws, legislates against the well-recognised principles of natural justice accepted as such in all civilized countries.

The same view is accepted in the United States in Federal Communications Commission v. WJR The Goodwill Station (2).

A right to lead evidence against facts suspected to exist is also not essential in the case of preventive deten- tion. Article 22 (6) permits the non-disclosure of facts.

That is one of the clauses of the Constitution dealing with fundamental rights. If even the non-disclosure of facts is permitted, I fail to see how there can exist a right to contest facts by evidence and the noninclusion of such procedural right could make this Act invalid.

Section 10 (3) was challenged on the ground that it excludes the right to appear in person or by any lawyer before the advisory board and it was argued that this was an infringement of a fundamental right. It must be noticed that article 22 (1) which gives a detained person a right to consult or be defended by his own legal practitioner is specifically excluded by article 22 (3) in the case of legislation dealing with preventive detention. Moreover,.

the Parliament is expressly given power under article 22 (7) (c) to lay down the procedure in an inquiry by an advisory board. This is also a part of article 22 itself. If so, how can the omission to give a right to audience be considered -against the constitutional rights ? It was pointed out that section 10 (3) prevents even the disclosure of a (1) (1911) A.C. 179. (2) [1949] USSC 71; 337 U.S. 265 at 276.

126 portion of the report and opinion of the advisory board.. It was argued that if so how can the detained person put forth his case before a Court and challenge the conclusions ? This argument was similarly advanced in Local Government Board v. Arlidge (1) and rejected, as mentioned above. In my opinion, the answer is in the provision found in article 22 (7) (c) of the Constitution of India.

It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State Govern- ment thought fit. This may mean an indefinite period. In my opinion this argument has nos substance because the Act has to be read as a whole., The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound. Again, by virtue of article 22 (7)(b), the Parliament is not obliged to fix the maximum term of such detention. It has not so fixed it, except under section 12, and therefore it cannot be stated that section 11 is in contravention of article 22 (7).

Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of article 22 (7). It is argued that article 22 (7) permits preventive detention beyond three months, when the Parliament pre- scribes “the circumstances in which, and the class or class- es of cases in which,” a person may be detained. It was argued that both these conditions must be fulfilled. In my opinion, this argument is unsound, because the words used in article 22 (7) themselves are against such interpretation.

The use of the word “which” twice in the first part of the sub-clause, read with the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive. Such argument might have been possible (though not necessarily accepted) if’ the article in the Constitution was “the circumstances. and the class or class- es of cases in which …… “I have. no doubt that by the clause, as worded, the legislature- (1) (1915) A.C. 120.

127 intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section. This contention therefore fails.

It was next contended that by section 12 the Parliament had provided that a person might be detained for a period longer than three months but not exceeding one year from the date of his detention, without obtaining the opinion of an advisory board, with a view to prevent him from acting in any manner prejudicial to (a) the defence of India, rela- tions of India with foreign powers or the security of India;

or (b)the security of a State or the maintenance of public order. It must be noticed that the contingency provided in section 3 (1) (a) (iii), viz., the maintenance of supplies and services essential to the community is omitted in sec- tion 12. Relying on the wording of these two sub-sections in section 12, it was argued that in the impugned Act the wording of Schedule VII List I, Entry 9, and List III, Entry 3, except the last part, are only copied. This did not comply with the requirement to specify either the circum- stances or the class or classes of cases as is necessary to be done under article 22 (7) of the Constitution. Circum- stances ordinarily mean events or situation extraneous to the actions of the individual concerned, while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea. Determinable may be according to the nature of the object also. It is obvious that the classification can be by grouping the activities of people or by specifying the objectives to be attained or avoided. The argument advanced on behalf of the petitioner on this point does not’ appeal to me because it assumes that the words of Schedule VII List I, Entry 9, and List III, Entry 3 are never capable of being considered as circum- stances or classes of cases. In my opinion, that assumption is not justified, particularly when we have to take into consideration cases of preventive 17 128 detention and not of conviction and punitive detention.

Each of the expressions used in those entries is capable of complying with the requirement of mentioning circumstances or classes of cases. The classification of cases, having regard to an object, may itself amount to a description of the circumstances. It is not disputed that each of the entries in the Legislative Lists in the Seventh Schedule has a specific connotation well understood and ascertainable in law. If so, there appears no reason why the same expression when used in section 12 (1) (a) and (b) of the impugned Act should not be held to have such specific meaning and thus comply with the requirement of prescribing circumstances or classes of cases. This argument therefore must be rejected.

Section 13(2) was attacked on the ground that even if a detention order was revoked, another detention order under section 3 might be made against the same person on the same grounds. This clause appears to be inserted to prevent a man being released if a detention order was held invalid on some technical ground. There is nothing in the Chapter on Fundamental Rights and in article 21 or 22 to prevent the inclusion of such a clause in a parliamentary legislation, permitting preventive detention. Article 20 (2) may be read as a contrast on this point.

Dealing with the four fundamental principles of natural justice in procedure claimed by the petitioner, it is thus clear that in respect of preventive detention no question of an objective standard of human conduct can be laid down. It is conceded that no notice before detention can be claimed by the very nature of such detention. The argument that after detention intimation of the grounds should be given has been recognised in article 22 (5) and incorporated in the impugned Act. As regards an impartial tribunal, article 22 and (7) read together give the Parliament ample discretion. When in specified circumstances and classes of cases the preventive detention exceeds three months, the absence of an advisory board is expressly per- mitted 129 by article 22 (7). Under article 22 (4) it appears implied that a provision for such tribunal is not necessary if the detention is for less than three months. As regards an opportunity to be heard, there is no absolute natural right recognised in respect of oral representation. It has been held to depend on the nature of the tribunal. The right to make a representation is affirmed by the Constitution in article 22 (5) and finds a place in the impugned Act. The right to an orderly course of procedure to the extent it is guaranteed by article 22 (4) read with article 22 (7) (c), and by article 22 (7) (a) and (b), has also been thus provided in the Act. It seems to me therefore that the petitioner’s contentions even on these points fail.

Section 14 was strongly attacked on the ground that it violated all principles of natural justice and even in- fringed the right given by article 22 (5) of the Constitu- tion. It runs as follows:

“14. (1) No Court shall, except for the purposes of a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 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, notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.

(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1):

130 Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.” By that section the Court is prevented (except for the purpose of punishment for such disclosure) from being in- formed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the produc- tion of the proceedings or report of the.advisory board which may be declared confidential. It is clear that if this provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not. I do not mean whether the grounds are suffi- cient or not. It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases men- tioned in section 12 (1) (a) or (b). In Machindar Shivaji Mahar v. The King (1), the Federal Court. held that the Court can examine the grounds given by the Government to see if they are relevant to the object which the legislation has in view. The provisions of article 22 (5) do not exclude that right of the Court. Section 14 of the impugned Act appears to be a drastic provision. which re- quires considerable support to sustain it in a preventive detention Act. The learned Attorney-General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe. I do not agree. This argument is clearly not sustainable on the words of article 22 clauses (5) and (6).

The Government has the right under article 22 (6)not to disclose facts which it considers undesirable to disclose in the public interest. It does not permit the Government to refrain from disclosing grounds which fall under clause (5).

(1) [1949-50] F.C.R. 827.

131 Therefore, it cannot successfully be contended that the disclosure of grounds may be withheld from the Court in public interest, as a rule of evidence. Moreover, the position is made clear by the words of article 22 (5). It provides that the detaining authority shall communicate to such detained person the grounds on which the order has been made. It is there fore ,essential that the grounds must be connected with the order of preventive detention. If they are not so .connected the requirements of article 22 (5) are not ,complied with and the detention order will be invalid.

Therefore, it is open to a detained person to contend before a Court that the grounds on which the order’ has been made have no connection at all with the order, or have no connec- tion with the circumstances or class or classes of cases under which a preventive detention order could be supported under section 12. To urge this argument the aggrieved party must have a right to intimate to the Court the grounds given for the alleged detention and the representation made by him. For instance, a person is served with a paper on which there are written three stanzas of a poem or three alphabets written in three different ways. For the validity of the detention order it is necessary that the grounds should be those on which the order has been made. If the detained person is not in a position to put before the Court this paper, the Court will be prevented from considering whether the requirements of article 22 (5) are complied with and that is a right which is guaranteed to every person. It seems to me therefore that the provisions .of section 14 abridge the right given under article 22 (5) and are there- fore ultra vires.

It next remains to be considered how far the invalidity of this section affects the rest of the impugned Act. The impugned Act minus this section can remain unaffected. The omission of this section will not change the nature or the structure or the object of the legislation. Therefore the decision that section 14 is ultra vires does not affect the validity of the rest of the Act. In my opinion therefore Act IV of 1950, except .section 14, is not ultra vires. It does not infringe any 132 provisions of Part III of the Constitution and the con- tention of the applicant against the validity of that Act except to the extent of section 14, fails. The petition therefore fails and is dismissed.

FAZL ALI J.–The question to be decided in this case is whether ‘the Preventive Detention Act, 1950 (Act IV of 1950), is wholly or in part invalid and whether the peti- tioner who has been detained under that Act is entitled to a writ in the nature of habeas corpus on the ground that his detention is illegal. The question being a pure question of law can he decided without referring to a long chain of facts which are narrated in the petitioner’s application to this Court and which have a more direct bearing on the alleged mala fides of the authorities who have detained him than on the validity of the Act.

The Act which is impugned was enacted by the Parliament on the 26th February, 1950, and will cease to have effect on the 1st April, 1951, save as respects. things done or omit- ted to be done before that date. The main provisions of the Act are set out in sections 7, 8, 9, 10,11, 12 and 14.

Section a (1) provides that “the Central Government or the State Government may- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to- (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any person who is. a foreigner within the meaning of the Foreigners Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, 133 it is necessary so to do, make an order directing that such person be detained.” Sub-sections (2) and (3) of this section empower a District Magistrate, Sub-Divisional Magistrate or the Com- missioner of Police in a Presidency Town to exercise the power conferred by and make the order contemplated in sub- section (1), but with the qualification that any order made thereunder must be reported forthwith to the Government of the State to which the .officer in question is subordinate with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order. Section 7 of the Act provides that the authority making an order of detention shall as soon as may be communicate to the person detained the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order, in a case where such ,order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subor- dinate thereto, to the State Government. Section 8 provides that the Central Government and each State Government shall, whenever necessary, constitute one or more advisory boards for the purposes of the Act, and state the qualifications of persons of which the board should consist. Section 9 pro- vides that when a detention order has been made with a view to preventing a person from acting in any manner prejudicial to the maintenance of supplies and services essential to the community or if it is made in regard to a person who is a foreigner within the meaning of the Foreigners Act with a view to regulating his continued presence in India or making arrangements for his expulsion from India, the grounds on which the order has been made and the representation, if any,. of the person detained shall, within six weeks from the date of detention, be placed ‘before an advisory regard.

It will be noticed that this section does not provide that the cases of persons who are detained under section 3 (1) (a) (i) and (ii) will also be placed before the advisory board. Section 10 lays down the 134 procedure to be followed by. the advisory board and section 11 provides that in any case where the advisory board has reported that there is sufficient cause for the detention of the person concerned, the detention order may be confirmed and the detention of the person concerned may be continued for such period as the Central Government or the State Government, as the case may be, thinks fit. Section 12,.

which is a very important section, as we shall presently see, runs as follows :– “12 (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 exceed- ing 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 a State or the maintenance of public order.

(2) The case of every person detained under a detention order to which the provisions of sub-section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State, Government, by such Govern- ment, and where the order was made by any officer specified in sub-section (2) of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is or has been or is qualified to be appointed as Judge of a High Court nominated in that behalf by the Cen- tral Government or the State Government, as the case may be.” Section 14, which is also a material section for the purpose of this case, is to the following effect :– “(1) No Court shall, except for the purposes of’ a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any 135 evidence to be given, before it of the substance of any communication made under section 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, not- withstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such commu- nication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.

(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be the contents of any such communication or representation as is referred to in sub-section (1):

Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.” The point which has been pressed before us is that the Act is invalid, as it takes away or abridges certain funda- mental rights conferred by Part III of the Constitution of India, and in support of this general proposition, reliance is placed on article 13 (2) which runs as follows :- “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.” The rights guaranteed under Part III of the Constitution are classified under seven broad heads, as follows :– (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.

136 Most of the articles which are said to have been disre- garded occur under the heading “Right to freedom,” these articles being articles 19 (1) (d), 21 and 22. Another article which is also said to have been violated is article 32, under which the present application for a writ of habeas corpus purports to have been made.

Article 19 (1)is divided into seven sub-clauses and runs as follows:- “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.” Clauses (2), (3), (4), (5) and (6) of this article pro- vide that nothing in clause (1) shall affect the operation of any existing law in regard to the rights under that clause, under certain conditions which are mentioned there- in. Clause (5), with which we are directly concerned and which will serve as a specimen to show the nature of these provisions, is to the following effect :– “Nothing in sub-clauses (d), (e) and (f)of the said clause 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 either in the interests of the general public or for the protection ‘of the interests of any Scheduled Tribe.” The contentions advanced on behalf of the petitioner with reference to this article are :–(1) that the Act under which he has been detained deprives him who is a citizen of the Republic of India of the right to move freely throughout the territory of India, which is guaran- teed under article 19 (1) (d), and (2) 137 that under clause (5) of article 19, it is open to this Court to judge whether the restrictions imposed by the Act on the exercise of the right conferred by article 19 (1) (d) are reasonable or otherwise. Before dealing with this argument, it is necessary to understand the meaning of the words used in article 19 (1)(d) and to have a clear compre- hension as to the true nature of the right conferred there- under. The contention put forward on behalf of the peti- tioner is that freedom of movement is the essence of person- al liberty and any restraint on freedom of movement must be held to amount to abridgment or deprivation of personal liberty, as the case may be, according to the nature of the restraint. After very careful consideration, I have come to the conclusion that this contention is well-founded in law.

Blackstone in his “Commentaries on the Laws of England” (4th Edition, volume 1, page 134) states that “personal liberty consists in the power of locomotion, of changing .’situation or moving one’s person to whatsoever place one’s own incli- nation may direct, without imprisonment or restraint unless by due course of law.” The authority of this state- ment has never been questioned, and it has been bodily incorporated by H.J. Stephen in his “Commentaries on the Laws of England” and has been reproduced by Cooley in his well-known treatise on “Constitutional Limitations” (8th Edition, volume 1, page 710), which was extensively quoted by both parties in the course of their arguments. The view that freedom of movement is the essence of personal liberty will also be confirmed by reference to any book on the criminal law of England dealing with the offence of false imprisonment or any commentary on the Indian Penal Code dealing with the offences of wrongful restraint or confine- ment. Russell in his book on “Crimes and Misdemeanours” (8th Edition, volume 1, page 861), dealing with the offence of false imprisonment states as follows :– “False imprisonment is unlawful and total restraint of the personal liberty of another, whether by constraining him or compelling him to go to a particular place or by confin- ing him in a prison or 138 police station or private place, or by detaining him against his will in a public place ……….. the essential element in the offence is the unlawful detention of the person or the unlawful restraint on his liberty. Such interference with the liberty of another’s movements is unlawful, unless it may be justified …… ” Again, Dr. Gour in dealing with the offence of wrongful restraint in his book on “The Penal Law of British India” (5th Edition, page 1144) observes as follows :– “Following the principle that every man’s person is sacred and that it is free, law visits with its penalties those who abridge his personal liberty, though he may have no design upon his person. But the fact that he controls its movements for ever so short a time is an offence against the King’s peace, for no one has the right to molest another in his free movements.” Dealing with the offence of wrongful confinement, the same learned author observes as follows at page 1148 of his book :– “‘Wrongful confinement’ is a species of ‘ wrongful restraint’ as defined in the last section. In wrongful restraint, there is only a partial suspension of one’s liberty of locomotion, while in wrongful confinement there is a total suspension of liberty ‘beyond certain circum- scribing limits’.” Both these authors speak of restraint on personal liber- ty and interference with the liberty of one’s movements or suspension of liberty or locomotion as interchangeable terms. In Bird v. Jones (1), Coleridge J. said that “it is one part of the definition of freedom to be able to go whithersoever one pleases.” A similar opinion has been expressed by several authors including Sir Alfred Denning in his book entitled “Freedom under the Law.” There can there- fore be no doubt that freedom of movement is in the last analysis the essence of personal liberty, and just as a man’s wealth is generally measured in this country in terms of rupees, annas and pies, one’s personal liberty depends upon the extent of his freedom of movement. But it is contended on behalf of the State that freedom of move- (1) 7 Q.B. 742.

139 ment to which reference has been made in article 19 (1) (d) is not the freedom of movement to which Blackstone and other authors have referred, but is a different species of freedom which is qualified by the words “throughout the territory of India.” How the use of the expression “throughout the territory of India” can qualify the meaning of the rest of the words used in the article is a matter beyond my compre- hension. In my opinion, the words “throughout the territory of India” were used to stretch the ambit of the freedom of movement to the utmost extent to which it could be guaran- teed by our Constitution. The Constitution could not guar- antee freedom of movement outside the territorial limits of India, and so has used those words to show that a citizen was entitled to move from one corner of the country to another freely and without any obstruction. “Throughout” is an amplifying and not a limiting expression, and I am sur- prised to find that the expression “throughout the territory of India,” which was used to give the widest possible scope to the freedom of movement, is sought to be construed as an expression limiting the scope and nature of the freedom. In my opinion, the words “throughout the territory of India,” having regard to the context in which they have been used here, have the same force and meaning as the expression “to whatsoever place one’s own inclination may direct” used by Blackstone, or the expression “freedom to be ,able to go whithersoever one pleases” used by Coleridge J. in Bird v.

Jones (1). I am certain that neither of these authorities contemplated that the freedom of movement which is vouch- safed to a British citizen, is guaranteed beyond the terri- torial limits of British territories.

The question as to whether preventive detention is an encroachment on the right guaranteed by article 19 (1) (d) has been considered by the Nagpur, Patna and Calcutta High Courts. The view which has .been ultimately adopted by these High Courts is that preventive detention is not a violation of the right guaranteed by article 19 (1) (d), but, in the Calcutta (1) 7 Q.B. 742.

140 High Court, where the matter has been elaborately discussed, at least five Judges have held that it does, and in the ultimate analysis the number of Judges. who have held the contrary view appears to be the same. Having regard to the fact that the view expressed by so many learned Judges is opposed to the view I am inclined to take, I consider it necessary to deal briefly with the main objections which have been raised in support of the narrow meaning sought to be attached to the words in article 19 (1)(d). I have already dealt with one of them which is based on the ex- pression “throughout the territory of India.” A. nd I shall now proceed to deal with the, others seriatim.

I. It will be recalled that clause (5) of article 19, which I have already quoted in full, provides among other things that nothing in clause (1) (d) shall affect the operation of any law, present or future, imposing reasonable restrictions on the exercise of the right of freedom of movement either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

It has been argued that the use of the words “interests of any Scheduled Tribe” in this clause shows that the right guaranteed by article 19 (1) (d) is a limited right of movement, such as the right to visit different localities and to go from one place to another and is different from the expression “freedom of movement” which has been stated by Blackstone to be another name for personal liberty. It is pointed out that the restrictions in contemplation here are mainly restrictions preventing undesirable outsiders from visiting Scheduled Areas and exploiting Scheduled Tribes, and if the words “freedom of movement” had been used in the larger sense, such a small matter would not have found a place in clause (5) of article 19..

I must frankly confess that I am unable to appreciate this argument and to hold that a mere reference to Scheduled Tribes affects the plain meaning of the words used in clause (1) (d) of article 19. The words used in article 19 (1) (d) are very wide and mean that a person can go at his will in any direction to any locality and to any distance. Re- straint on a freedom.

141 so wide in scope and extent may assume a variety of forms and may include internment or externment of a person, his confinement to a particular locality or within the walls of a prison, his being prevented from visiting or staying in any particular area, etc. The framers of the Constitution wanted to save all restrictive legislation affecting freedom of movement made in the interests of the general public (which expression means the same thing as “public interests”) and I think that the law in regard to preventive detention is fully covered by the expression “restrictions imposed in the public interests.” But they also remembered that there were restrictive laws made in the interests of an important community and that similar laws may have to be made in future and hence they added the words “for the protection of the interests of any Scheduled Tribe.” A reference to the Fifth Schedule of the Constitution and the corresponding provisions of the Government of India Act, 1935, as well as to certain laws made for Chota Nagpur, Santhai Pargangs and .other localities will show that great importance has been attached in this country to. the protec- tion and preservation of the members of the scheduled tribes .and maintenance of order in tribal areas, and this, in my opinion, is sufficient to account for the special mention of the scheduled tribes in clause (5). It may, at first sight, appear to be a relatively small matter, but in their anxiety to cover the whole field of restrictive laws made whether in the public interest or in the interests of a particular community and not to leave the smallest loophole, the framers of the Constitution apparently decided to draft the clause in the present form. As far as I am aware, there are no restrictive laws made in the interests of any commu- nity other than the scheduled tribes, and I think clause (5)is sufficiently comprehensive to include the smallest as well as the most complete restrictions on freedom of move- ment. I am also satisfied that the mere mention of sched- uled tribes in clause (5) cannot change, the plain meaning of the words of the main provision which we find in article 19 (1) (d) and confine it to some kind of peculiar and truncated freedom of 142 movement which is unconnected with personal liberty and which is unknown to any Constitution with which. we are familiar:

It will perhaps be not out of place to refer in this.

connection to Ordinance XIV of 1943, which is one of the ordinances by which the Defence of India Act, 1939, was partly amended. This ordinance provides for– “the apprehension and detention in custody of any person whom the authority empowered by the rules to appre- hend or detain as the case may be suspects, on grounds appearing to such authority-to be reasonable, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence of British India, the maintenance of public order, His Majesty’s relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war, or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudi- cial manner, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything.” The points to be noted in connection with the ordinance are :– (1) that it is an ordinance specifically providing for apprehension and detention;

(2) that notwithstanding the fact that there is a gener- al reference in it to acts prejudicial to public safety or interests and maintenance of public order there is also a specific reference to maintenance of peaceful conditions in tribal areas;

(3) that tribal areas and scheduled tribes are, kindred subjects as would appear from the Fifth Schedule appended to the Constitution; and (4) that maintenance of peaceful conditions in tribal areas may be as much in the public interest as in the inter- ests of persons living in those areas.

143 This ordinance shows at least this much that sometimes the law of preventive detention can also be made in the interests of scheduled tribes or scheduled areas and conse- quently the mere mention of scheduled tribes in clause (5) does not necessarily exclude laws relating to preventive detention from the scope of article 19 (5) The same remarks apply to the ordinance called “The Restriction and Detention Ordinance, 1944” (Ordinance No. III of 1944) which empow- ered the Central Government or the Provincial Government to detain and make orders restricting the movements of certain persons in the interest of public safety, maintenance of public order as well as maintenance of peaceful conditions in tribal areas, etc.

II. It is also argued that since preventive detention amounts to a total deprivation of freedom of movement, it is not a violation of the right granted under article 19 (1) (d) in regard to which the word “restriction” and not “deprivation” has been used in clause (5). This argument also does not appeal to me. There are really two questions which fall to be decided in this case, viz., (a) Does pre- ventive detention take away the right guaranteed by article 19 (1) (d)?; and (b) if so, what are the consequences, if any ? It seems obvious to me that preventive detention amounts to a complete deprivation of the right guaranteed by article (19) (d). The meaning of the word “restriction” is to be considered with reference to the second question and I think that it will be highly technical to argue that deprivation of a right cannot be said to involve restriction on the exercise of the right. In my opinion, having regard to the context in which the word “restriction” has been used, there is no antithesis between that word and the word “depriva- tion.” As I have already stated, restraint on the right to move can assume a variety of forms and restriction would be the most appropriate expression to be’ used in clause (5) so as to cover all those forms ranging from total to various kinds of partial deprivation freedom of movement. I will however have to advert to this subject later and will try to show that the 19 144 construction I have suggested is supported by good authori- ty.

III. It appears that some of the Judges who had to deal with the question which we have before us were greatly influenced by the argument that if the deprivation of per- sonal liberty amounts to deprivation of the right granted under article 19 (1) (d), any conviction for an offence under the Indian Penal Code involving a sentence of impris- onment will be subject to judicial review on the ground of reasonableness of the provisions of the Code under which the conviction is recorded. Meredith C.J. of the Patna High Court has given expression to his concern for the situation which will thereby arise, in these words :– “It will be seen that the claim made is very sweeping indeed. It would mean that every law under which a person may be imprisoned, including all the provisions of the Penal Code, is open to examination by the Courts on the ground of reasonableness. It makes the Courts supreme arbiters in regard to any such legislation, and they can reject it-or accept it in accordance with their ideas of whether it appeals to their reason. But ideas of reasonableness or otherwise are apt to vary widely. Take for example, laws relating to prohibition or take such a matter as adultery which the Indian law regards as a crime punishable with imprisonment but the English law does not. It is difficult to believe the framers of the Constitution ever intended to place so enormous a power in the hands of the Courts …………….”[Rattan Roy v. The State of Biharl.

The obvious and strictly legal reply to this argument is that the consideration, which has so greatly weighed with the learned Chief Justice, is not enough to cut down the plain meaning of the general words used in article 19 (5) of the Constitution. As has been pointed out in a number of cases, “in construing enacted words, we are not concerned with the policy involved or with the results injurious or otherwise which may follow by giving effect to the language 145 -used” [King Emperor v. Benoari Lal Sharma and others (1)I Apart from this aspect of the matter, I agree with one of the learned Judges Of the Calcutta High Court in his remark that “no calamitous or untoward result will follow even if the provisions of the Penal Code become justiciable.” I am certain that no Court would interfere with a Code which has been the law of the land for nearly a century and the provisions of which are not in conflict with the basic principles of any system of law. It seems to me that this Court should not be deterred from giving effect to a fundamental right granted under the Constitution, merely because of a vague and unfounded fear that something catas- trophic may happen.

I have so far proceeded on the assumption that the basis of the objection raised by Meredith C.J. is correct in law, but, in my opinion, it is not. Crime has been defined to consist in those acts or omissions involving breach of a duty to which a sanction is attached by law by way of pun- ishment or pecuniary penalty in the public interests. (See Russell’s “Crimes and Misdemeanours “). Section 2 of the Indian Penal Code, 1860, provides that “every person shall be liable to punishment under this Code’ and not otherwise for every act or omission contrary to the provisions there- of, of which he shall be guilty within British India .” The Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement, and it is not correct to say that it is a law imposing restrictions on the right to move freely. Its primary object is to punish crime and not to restrict movement. The punishment may consist in imprisonment or a pecuniary penalty. If it consists in a pecuniary, penalty, it obviously involves no restriction on movement; but if it consists in imprisonment, there is a restriction on movement. This restraint is imposed not under a law imposing restrictions on movement but under a law defining crime and making it punishable. The punishment is correlated directly with the violation of some other person’s right and not with the right of (1) [1945] F.C.R. 161 at p. 177.

146 movement possessed by the offender himself. In my opinion, therefore, the Indian Penal Code does not come within the ambit of the words “law imposing restriction on the right to move freely “.

In the course of the arguments, the expression “punitive detention” was frequently used and the tendency was to put it on the same footing as preventive detention for the purpose of certain arguments. Punitive detention is however essentially different from preventive detention. A person is punitively detained only after a trial for committing a crime and after his guilt has been established in a compe- tent Court of justice. A person so convicted can take his case to the State High Court and sometimes bring it to this Court also; and he can in the course of the proceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction of the Court of trial and the invalidity of the law under which he has been prosecuted. The final judgment in the criminal trial will thus constitute a serious obstacle in his way if he chooses to assert even after his conviction that his right under article 19 (1) (d) has been violated. But a person who is preventively detained has not to face such an obstacle whatever other obstacle may be in his way.

IV. It was pointed out that article 19 being confined to citizens, the anomalous situation will follow that in cases of preventive detention, a citizen will be placed in a better position than a non-citizen, because if a citizen is detained his detention will be open to some kind of judicial review under article 19 (5), but if a non-citizen has been detained his case will not be open to such review. In this view, it is said that the whole Act relating to preventive detention, may be declared to be void if it is unreasonable, though it concerns citizens as well as persons other than citizens. I must frankly state that I am not at all per- turbed by this argument. It is a patent fact that the Constitution has confined all the rights mentioned in arti- cle 19 (1) to citizens. It is equally clear that restric- tions on those rights are to a limited extent at least open to judicial review- The very same question which is 147 raised in regard to article 19 (1)(d) will arise with regard to most of the other sub-clauses. A citizen has the right to assemble peaceably and without arms, to form associations or unions and so on. If there is any law imposing unreason- able restrictions on any of these rights, that law will not be good law so far as citizens are concerned, but it may be good law so far as non-citizens are concerned. I do not see why a similar situation arising with regard to the right granted under sub-clause (d) should be stated to be anoma- lous. So far as the right of free movement is concerned, a non-citizen has been granted certain protections in articles 21 and 22. If a ,citizen has been granted certain other additional protections under article 19 (1) (d), there is no anomaly involved in the discrimination. I think that it is conceivable that a certain law may be declared to be void as against a citizen but not against a non-citizen. Such a result however should not affect our mind if it is found to have been clearly within the contemplation of the framers of the Constitution.

V. It was contended that the rights declared by article 19 are the rights of a free citizen and if he has already been deprived of his liberty in the circumstances referred to in articles 20, 21 and 22, then it would be idle to say that he still enjoys the right referred to in article 19.

After giving my fullest consideration to this argument, I have not been able to appreciate how it arises in this case.

There is nothing in article 19 go suggest that it applies only to those cases which do not fall under articles 20, 21 and 22. Confining ourselves to preventive detention, it is enough to point out that a person who is preventively de- tained must have been, before he lost his liberty, a free man. Why can’t he say to those who detained him: “As a citizen I have the right to move freely and you cannot curtail or take away my right beyond the limits imposed by clause (5)of article 19.” This is the only question which arises in the case and it should not be obscured by any abstruse or metaphysical considerations. It is true that if you put a man under detention, he cannot move and therefore he is not in a position to 148 exercise the right guaranteed under article 19 (1) (d). but this is only the physical aspect of the matter and a person who is bed-ridden on account of disease suffers from a similar disability. In law, however,. physical duress does not deprive a person of the right to freedom of movement.

If he has been detained under some provision of law imposing restrictions on the freedom of movement, then the question will arise whether the restrictions are reasonable. If he has been detained under no provision of law or under some law which is invalid, he must be set at liberty.

To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others. In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent over- lap each other. The case of a person who is convicted of an offence will come under articles 20 and 21 and also under article 221 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in article 22, also amounts to deprivation of personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in article 19 (1) (d). That there are other instances of overlapping of articles in the Constitution may be illus- trated by reference to article 19 (1) (f) and article 31 both of which deal with the right to property and to some extent overlap each other. It appears that some learned High Court Judges, who had to deal with the very question before us, were greatly impressed by the statement in the report of the Drafting Committee of the Constituent Assembly on article 15 (corresponding to the present article 21), that the word “liberty” should be qualified by the insertion of the word “personal” before it for otherwise it may be construed very widely so as to include the freedoms dealt with in article 13 (corresponding to the present article 19). I am not however prepared to hold that this statement is decisive on the question of the construction of the words used in article 19 (1) (d) which are quite plain and can be construed without any 149 extraneous help. Whether the report of the Drafting Commit- tee and the debates on the floor of the House should be used at all in construing the words of a statute, which are words of ordinary and common use and are not used in any technical or peculiar sense, is a debatable question; and whether they can be used in aid of a construction which is a strain upon the language used in the clause to be interpreted is a still more doubtful matter. But, apart from these legal consider- ations, it is, I think, open to us to analyse the statement and see whether it goes beyond adding a somewhat plausible reason–a superficially plausible reason–for a slight verbal change in article 21. It seems clear that the addi- tion of the word “personal” before “liberty” in article 21 cannot change the meaning of the words used in article 19, nor can it put a matter which is inseparably bound up with personal liberty beyond its place. Personal liberty and personal freedom, in spite of the use of the word “personal ,” are, as we find in several books, sometimes used in a wide sense and embrace freedom of speech, freedom of .asso- ciation, etc. These rights are some of the most valuable phases or elements of liberty and they do not cease to be so by the addition of the word “personal.” A general statement by the Drafting Committee referring to freedom in plural cannot take the place of an authoritative exposition of the meaning of the words used in article 19 (1)(d), which has not been specifically referred to and cannot be such an overriding consideration as to compel us to put a meaning opposed to reason and authority. The words used in article 19 (1) (d) must be construed as they stand, and we have to decide upon the words themselves whether in the .case of preventive detention the right under article 19 (1) (d) is or is not infringed. But, as I shall point out later, however literally we may construe the words used in article 19 (1) (d) and however restricted may be the meaning we may attribute to those words, there can be no escape from the conclusion that preventive detention is a direct infringe- ment of the right guaranteed in article 19 (1) (d).

150 Having dealt with the principal objections, I wish to revert once again to the main topic. The expressions “per- sonal liberty” and” personal freedom” have, as we find in several books, a wider meaning and also a narrower meaning.

In the wider sense, they include not only immunity from arrest and detention but also freedom of speech, freedom of association, etc. In the narrower sense, they mean immunity from arrest and detention. I have shown that the juristic conception of “personal liberty ,” when these words are used in the sense of immunity from arrest, is. that it consists in freedom of movement and locomotion. I have also pointed out that this conception is at the root of the criminal law of England and of this country, so far as the offences of false imprisonment and wrongful confinement are concerned.

The gravamen of these offences is restraint on freedom of movement. With these facts in view, I have tried to find out whether there is any freedom of movement known in England apart from personal liberty used in the sense of immunity from arrest and detention, but I find no trace of any such freedom. In Halsbury’s Laws of England (2nd Edition, volume 6, page 391), the freedoms mentioned are the right to per- sonal freedom (or immunity from detention or confinement), the right to property, the right to freedom of speech, the right of public meeting, the right of association, etc.

Similar classifications will be found in Dicey’s “Introduc- tion to the Study of the Law of the Constitution” and Keith’s “Constitutional Law” and other books on constitu- tional subjects, but there is no reference anywhere to any freedom or right of movement in the sense in which we are asked to. construe the words used in article 19 (1) (d)..

In the Constitutions of America, Ireland and many other countries where freedom is prized, there is no reference to freedom or right of movement as something distinct from personal liberty used in the sense of immunity from arrest and confinement. The obvious explanation is that in legal conception no freedom or right of movement exists apart from what personal liberty connotes and therefore a separate treatment of this freedom was not necessary. It is only in the Constitution of the Free 151 City of Danzig, which covers an area of 701 square miles, that we find these words in article 75 :– “All nationals shall enjoy freedom of movement within the City.” There is however no authoritative opinion available to support the view that this freedom is anything different from what is otherwise called personal liberty. The problem of construc- tion in regard to this particular right in the Constitution of Danzig is the same as in our Constitution. Such being the general position, I am confirmed in my view that the juristic conception that personal liberty and freedom of movement connote the same thing is the correct and true conception, and the words used in article 10 (1) (d) must be construed according to this universally accepted legal conception.

This conclusion is further supported by reference to the war legislation in England and in India, upon which the law of preventive detention, which has been in force in this country since the war, is based. In the first world war, the British Parliament passed the Defence of the Realm Consoli- dation Act, in 1914, and a number of regulations were made under it including regulation 14-B, which permitted the Secretary of State to subject any person “to such obliga- tions and restrictions as hereinafter mentioned in view of his hostile origin or associations.” Lord Atkin in refer- ring to this regulation said in Liversidge v. Sir John Anderson (1), “that the regulation undisputedly gave to a Secretary of State unrestricted power to detain a suspected person.” Apparently, Lord Atkin meant that the restriction referred to in the Act included preventive detention. Under this regulation, one Arthur Zadig was interned, and he applied to the King’s Bench for a writ of habeas corpus which was refused. The matter ultimately came up before the House of Lords in Rex v. Halliday (2), and the noble Lords in dealing with the case proceeded on the assumption that there was no difference between internment and incarceration or imprisonment. Lord Shaw in narrating the facts of the case stated :– (1) [1942] A.C. 238. (2) [1917] UKHL 1; [1917] A.C. 260.

20 152 His person was seized, he has been interned ……

The appellant lost his liberty and was interned ……” He then proceeded to state that there was no difference between internment and imprisonment and quoted the following passage from Blackstone :– “The confinement of the person, in any wise, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.” Proceeding on this footing (which I find to be the common basis in all other speeches delivered in the case, though Lord Shaw had given a dissenting judgment), Lord Finlay while dealing with the provisions of the regulations observed :– “One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy “(1).

Again, Lord Atkinson while dealing with the merits of the case made the following observations :– “If the legislature chooses to enact that he can be deprived of his liberty and incarcerated or interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and the orders made under it if intra vires do not infringe upon the Habeas Corpus Acts or take away any right conferred by Magna Charta …… ,, (2).

This passage read with the previous passage quoted by me will show that both internment and incarceration were re- garded as “restrictions on the freedom of movement “and that deprivation of liberty and restriction on freedom of move- ment were used as alternative expressions bearing the same meaning.

The same conclusion is to be drawn by reference to the regulations made in the last world war under the Emergency Powers (Defence)Act, 1939. The regulation which directly dealt-with detention orders was 18-B. This regulation and a number of other regulations have been placed in Part I under the heading” Restrictions (1) [1917] A.C. 269. (2) [1917] A.C. 272.

153 On movements and activities of persons .” The classifica- tion is important, because it meets two principal arguments advanced in this case. It shows firstly that detention is a form of restriction and secondly that it is a restriction on movement. I have noticed that” movement” is used in plural, and the heading also refers to restrictions on activities, but, having regard to the subjects classified under this head, movement undoubtedly refers to physical movement and includes such movements as entering a particu- lar locality, going from one place to another, etc., i.e., the very things to which article 19 (1) (d) is said to have reference. In Liversidge’s case, in construing the provi- sions of the Act of 1939, Viscount Maugham observed as follows :– “The language of the Act of 1939 (above cited) shows beyond doubt that Defence Regulations may be made which must deprive the subject “whose detention appears to the Secre- tary of State to be expedient in the interests of public safety” of all his liberty of movement while the regulations remain in force”(1).

Thus Viscount Maugham also considered detention to be synonymous with deprivation of liberty of movement.

The classification that we find in the Defence of the Realm Regulations was with a little verbal modification adopted in the Defence of India Rules, and we find that here also rule 26, which dealt with preventive detention, has been placed under the heading “Restriction of movements and activities of persons.” A somewhat similar classification has also been adopted in a series of Provincial Acts and Ordinances relating to maintenance of order [see section 2 of the Bihar Maintenance of Public Order. Act, 1949, section 16 of the West Bengal Security Act, 1948, section 4 of the East Punjab Public Safety Act, 1949, section 2 of the Madras Maintenance of Public Order Act, 1947, section 3 of the U.P.

Maintenance of Public Order Temporary Act, 1947, and section 2 of the Bombay Public Security Measures Act, 1947. In these Acts and Ordinances, preventive detention and certain (1) [1942] A.C. 219.

154 other forms of restriction on movement such as internment, externment, etc. have been classed together and dealt with more or less on the same footing, and sometimes they have been dealt with in different clauses of the same section. In one of the Acts, the same advisory board is to deal with the case of a detenue as well as that of an externed person, and there are also similar provisions giving them the right to represent their case to the Government.

I will now assume for the sake of argument that the freedom of movement to which reference is made in article 19 (1) (d) has nothing to do with personal liberty and that the words which occur in the article bear the restricted meaning attributed to them by the learned Attorney-General and some of my colleagues. It seems to me that even on this assump- tion, it is difficult to arrive at any conclusion other than what I have already arrived at. There can be no doubt that preventive detention does take away even this limited free- dom of movement directly and substantially, and, if so, I do not see how it can be argued that the right under article 19 (1) (d) is not infringed if the alternative interpretation is accepted. We have only to ask ourselves: Does a person who is detained retain even a fraction of his freedom of movement in howsoever restricted sense the term may be used and does he not lose his right to move freely from one place to another or visit any locality he likes as a necessary result of his detention ? I think I should refer here once more to the fact that in the Defence of the Realm Regula- tions and Defence of India Rules, preventive detention is classed under the heading “Restriction of movements and activities.” “Movement” is here used in plural and refers to that very type of movement which is said to be protected by article 19 (1) (d), moving from one State or place to another, visiting different localities, etc. One of the objects of ‘preventive detention is to restrain the person detained from moving from place to. place so that he may not spread disaffection or indulge in dangerous activities in the’ places he visits. The same consideration applies to the cases of persons who are interned or externed. Hence, externment, 155 internment and certain other forms of restriction on move- ment have always been treated as kindred matters belonging to the same group or family and the rule which applies to one must necessarily apply to the other. It is difficult to hold that the case of externment can possibly be dealt with on a different footing from the case of preventive deten- tion. I am however interested to find that the Patna and Bombay High Courts have held that a person who is externed can successfully assert that the right granted to him under article 19 (1) (d) has been violated. This view has not been seriously challenged before us, and, if it is correct, I really do not see how it can be held that preventive deten- tion is also not a direct invasion of the right guaranteed in article 19 (1) (d). Perhaps, one may pause here to ask what kind of laws were in contemplation of the framers of the Constitution when they referred to laws imposing re- strictions in the public interest in article 19 (5). I think the war laws and the Provincial Acts and Ordinances to which I have already referred must have been among them, these being laws which expressly purport to impose restrictions on movements. If so, we should not overlook the fact that preventive detention was an inseparable part of these laws and was treated as a form of restriction on movement and classified as such. It seems to me that when the matter is seriously considered, it would be found that the interpreta- tion of the learned Attorney-General attracts the operation of article 13 (2) no less strongly and directly than the interpretation I have suggested, and I prefer the latter only because I consider that it is legally unsound to treat what is inseparably bound up with and is the essential element in the legal concept 1of personal liberty as a wholly separate and unconnected entity. But, as I have already indicated, it will be enough for the purpose of this case if we forget all about personal liberty and remember only that detention is, as is self-evident and as has been pointed out by Viscount Maugham and other eminent judges, another name for depriving a person of all his “liberty of movement.” It was pointed out in the course of the arguments 156 that preventive detention not only takes away the right in article 19 (1) (d) but also takes away all the other rights guaranteed by article 19 (1), except the right to hold, acquire and dispose of property. Where exactly this argu- ment is intended to lead us to, I cannot fully understand, but it seems to me that it involves an obvious fallacy, because it overlooks the difference in the modes in which preventive detention operates on the right referred to in sub-clause (d) and other sub-clauses of article 19 (1). The difference is that while preventive detention operates on freedom of movement directly and inevitably, its operation on the other rights is indirect and consequential and is, often only notional. One who is preventively detained is straightaway deprived of his right of movement as a direct result of his detention, but he loses the other rights only in consequence of his losing freedom of movement. Beside% while freedom of movement is lost by him in all reality and substance, some of the other rights may not be lost until he wishes to exercise them or is interested in exercising them.

A person who is detained may not be interested in freedom of association or may not pursue any profession, occupation, trade or business. In such a case, the rights referred to are lost only in theory and not as a matter of substance. I wish only to add that when I said that I was not able to understand the full force of the argument which I have tried to deal with, what I had, in mind was that if preventive detention sweeps away or affects almost all the rights guaranteed in article. 19 (1), the matter deserves very serious consideration and we cannot lightly lay down that article 13 (2) does not come into operation.

Being fully alive to the fact that it is a serious matter to be asked to declare a law enacted by Parliament to be unconstitutional, I have again and again asked myself the question: What are we to put in the scales against the construction which I am inclined to adopt and in favour of the view that preventive detention does not take away the freedom of movement guaranteed in article 19 (1) (d)? The inevitable answer has always been that while in one of the scales 157 we have plain and unambiguous language, the opinion eminent jurists, judicial dicta of high authority, constitu- tional practice in the sense that no Constitution refers to any freedom of movement apart from personal liberty, and the manner in which preventive detention has been treated in the very laws on which our law on this subject is based, all that we can put in the opposite scale is a vague and ill- rounded apprehension that some fearful object such as the revision of the Penal .Code is looming obscurely in the distant horizon, the peculiar objection that the mere men- tion of the scheduled tribes will alter the meaning of certain plain words, the highly technical and unreal dis- tinction between restriction and deprivation and the assump- tion not warranted by any express provision that a person who is preventively detained cannot claim the right of freedom of movement because he is not a free man and certain other things which, whether taken singly or ,collectively, are too unsubstantial to carry any weight. In these circum- stances, I am strongly of the view that article 19 (1)(d) guarantees the right of freedom of movement in its widest sense, that freedom of movement being the essence of person- al liberty, the right guaranteed under the article is really a right to personal liberty and that preventive detention is a deprivation of that right. I am also of the view that even on the interpretation suggested by the learned Attor- ney-General, preventive detention cannot but be held to be a violation of the right conferred by article 19 ,(1) (d). In either view, therefore, the law of preventive detention is subject to such limited judicial review as is permitted under article 19 (5). The scope of the review is simply to see whether any particular law imposes any unreasonable restrictions. Considering that the restrictions are imposed on a most valuable right, there is nothing revolutionary in ‘the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason.

I will now pass on to the consideration of article 21, which runs as follows :- “No person shall be deprived of his life or personal 158 liberty except according to procedure established by law.” Here again, our first step must be to arrive at a clear meaning of the provision. The only words which cause some difficulty in the proper construction of the article are “procedure established by law.” The learned Attorney-General contended before us that the word “law” which is used in article 21 means State-made law or law enacted by the State. On the other hand, the learned counsel for the petitioner strongly contended that the expression “procedure established by law” is used in a much wider sense and approximates in meaning to the expres- sion “due process of law” as interpreted by the Supreme COurt of America in the earliest times and, if that is so, it means exactly what some of the American writers mean to convey by the expression “procedural due process.” In the course of the arguments, the learned Attorney- General referred us to the proceedings in the Constituent Assembly for the purpose of showing that the article as originally drafted contained the words “without due process of law” but these words were subsequently replaced by the words “except according to procedure established by law.” In my opinion, though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in article 21, especially when they are plain and unambiguous, they are relevant to show that the Assembly intended to avoid the use of the expression “without due process of law.” That expression had its roots in the expression “per legem terrae” (law of the land) used in Magna Charta in 1215. In the reign of Edward III, ‘however, the words “due process of law” were used in a statute guaranteeing that no person will be de- prived of his property or imprisoned or indicted or put to death without being brought in to answer by due process of law (28, Edward III, Ch. III). The expression was after- wards adopted in the American Constitution and also in the Constitutions of some of the constituent States, though some of the States preferred to use the 159 words “in due course of law” or “according to the law of the land.” [See Cooley on “Constitutional Limitations,” 8th Edn. Vol. II, pages 734-51. In the earliest times, the American Supreme Court construed “due process of law” to cover matters of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis on the word “due.” The expression was used in such a wide sense that the judges found it difficult to define it and in one of the cases it was ob- served as follows :– “It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case. This difficulty and perhaps impossi- bility was referred to by Mr. Justice Miller in Davidson v.

New Orleans, where the opinion was expressed that it is wiser to ascertain their intent and application by the ‘gradual process of judicial inclusion and exclusion,’ as the cases presented for decision shall require, with the reasoning on which such decisions may be rounded:” Missouri Pacific Railway Co. v. Humes (1).

It seems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning given to it, but preferred to use the words “according to procedure established by law” which occur in the Japanese Constitution framed in 1946.

It will not be out of place to state here in a few words how the Japanese Constitution came into existence. It appears that on the 11th October, 1945. General McArthur directed the Japanese Cabinet to initiate measures for the preparation of the Japanese Constitution, but, as no progress was made, it was. decided in February, 1946, that the problem of constitutional reform should be taken over by the Government Section of the Supreme Commander’s Headquar- ters. Subsequently the Chief of this Section ,and the staff drafted the Constitution with the help of American constitu- tional lawyers who were called to assist the Government Section in the task. This Constitution, as a learned writer has remarked, bore (1) [1885] USSC 224; 115 U.S. 512 at page 513.

21 160 on almost every page evidences of its essentially Western origin, and this characteristic was especially evident in the preamble “particularly reminiscent of the American Declaration of Independence, a preamble which, it has been observed, no Japanese could possibly have conceived or written and which few could even understand” [See Ogg and Zink’s “Modern Foreign Governments”]. One of the character- istics of the Constitution which undoubtedly bespeaks of direct American influence is to be found in a lengthy chap- ter, consisting of 31 articles, entitled “Rights and Duties of the People,” which provided for the first time an effec- tive “Bill of Rights” for the Japanese people. The usual safeguards have been provided there against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause (articles 33 and 34).

Now there are two matters which deserve to be noticed :–(1) that the Japanese Constitution was framed wholly under American influence; and (2) that at the time it was framed the trend of judicial opinion in America was in favour of confining the meaning of the expression “due process of law” to what is expressed by certain American writers by the somewhat quaint but useful expression “proce- dural due process.” That there was such a trend would be clear from the following passage which I quote from Carl Brent Swisher’s “The Growth of Constitutional Power in the United States” (page 107.):– “The American history of its interpretation falls into three periods. During the first period, covering roughly the first century of government under the Constitution, due process was interpreted principally as a restriction upon procedure–and largely the judicial procedure–by which the government exercised its powers. During the second period, which, again roughly speaking, extended through 1936, due process was expanded to serve as a restriction not merely upon procedure but upon the substance of the activities in which the government might engage. During the third period, extending from 1936 to date, the use of due 161 process as a substantive restriction has been largely sus- pended or abandoned, leaving it principally in its original status as a restriction upon procedure.” In the circumstances mentioned, it seems permissible to surmise that the expression “procedure established by law” as used in the Japanese Constitution represented the current trend of American judicial opinion with regard to “due process of law,” and, if that is so, the expression as used in our Constitution means all that the American writers have read into the words “procedural due process.” But I do not wish to base any conclusions upon mere surmise and will try to examine the whole question on its merits.

The word “law” may be used in an abstract or concrete sense. Sometimes it is preceded by an article such as “a” or “the” or by such words as “any,” “all,” etc., and sometimes it is used without any such prefix.

But, generally, the word “law” has a wider meaning when used in the abstract sense without being preceded by an article.

The question to be decided is whether the word “law” means nothing more than statute law.

Now whatever may be the meaning of the expression “due process of law,” the word “law” is common to that expression as well as “procedure established by law” and though we are not bound to adopt the construction put on “law” or “due process of law” in America, yet since a number of eminent American Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them. I will therefore in the first instance set out certain quotations from a few of the .decisions of the American Supreme Court construing the word “law” as used in the expression “due process of law,” in so far as it bears on the question of legal procedure.

(1) “Although the legislature may at its pleasure provide new remedies or change old ones, the power is never- theless subject to the condition that it cannot remove certain ancient land-marks, or take away certain fundamen- tal rights which have been always 162 recognized and observed in judicial procedures:” Bardwell v.

Collins (1).

(2)’ ‘By the law of the land is most clearly intended the general law: a law which hears before it condemns, which proceeds upon inquiry and renders judgments only- after trial. The meaning is that every citizen shall hold his life, liberty and property, and immunities under the protection of the general rules which govern society:” Dartmouth College Case (2).

(3) “Can it be doubted that due process of law signifies a right to be heard in one’s defence ? If the legislative department of the government were to enact a statute confer- ring the right to condemn the citizen without any opportuni- ty whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution ? If this be true, as it undoubtedly is, how can it be said that the judicial department. the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be viola of the Constitution ? If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it. If such authority exists then in conse- quence of their establishment, to compel obedience to law and enforce justice, Courts possess the right to inflict the very wrongs which they were created to prevent:” Hovey v.

Elliott(3).

(4) “It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his say in Court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determi- nation; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered:” Gatpin v. Page(4).

Thus, in America, the word “law” does not mean merely State-made law or law enacted by the State and does not exclude certain fundamental principles of (1) 44 Minn. 97; 9 L.R.A. 152. (3) [1897] USSC 146; 167 U.S. 409 at page 417.

(2) 17 U.S. 4. (4) 85 U.S. 18.

163 justice which inhere in every civilized system of law and which are at the root of it. The result of the numerous decisions in America has been summed up by Professor Willis in his book on “Constitutional Law” at page 662, in the statement that the essentials of due process are: (1) no- tice, (2) opportunity to be heard, (3) an impartial tribu- nal, and (4) orderly course of procedure. It is pointed out by the learned author that these essentials may assume different forms in different circumstances, and so long as they are conceded in principle, the requirement of law will be fulfilled. For example, a person cannot require any particular form or method of hearing, but all that he can require is a reasonable opportunity to be heard. Similarly, an impartial tribunal does not necessarily mean a judicial tribunal in every case. So far as ‘orderly course of proce- dure is concerned, he explains that it does not require a ‘Court to strictly weigh the ,evidence but it does require it to examine the entire record to ascertain the issues, to discover whether there are facts not reported and to see whether or not the law has been correctly applied to facts.

The view expressed by other writers is practically the same as that expressed by Professor Willis, though some of them do not expressly refer to the fourth element, viz., orderly course of procedure. The real point however is that these four elements are really different aspects of the same right, viz., the right to be heard before one is condemned.

So far as this right is concerned, -judicial opinion in England appears to be the same as that in America. In Eng- land, it would shock one to be told that a man can be de- prived of his personal liberty without a fair trial or hearing. Such a case can happen if the Parliament expressly takes away the right in question in an emergency as the British Parliament did during// the last two world wars in a limited number of cases. I will refer here to a few cases which show that the fundamental principle that a person whose right is affected must be heard has been observed not only in cases involving personal liberty but also ‘in proceedings affecting other rights, even though they may have 164 come before administrative or quasi-judicial tribunals.

Cooper v. The Wadsworth Board of Works (1)was a case under an Act which empowered the District Board to alter or demol- ish a house where the builder had neglected to give notice of his intention. seven days before proceeding to lay or dig the foundation. Acting upon this power, the Board directed the demolition of a building without notice to the builder, but this was held to be illegal. Byles 5. in dealing with the matter observed as follows :– “I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punish- ment as well as the remedy. That being so, a long course of decisions, beginning with Dr. Bentley’s case, and ending with some very recent cases, establish that although there are no positive words in a statute requiring that the party-shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Mr.

Justice Fortescue, in Dr. Bentley’s case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, “The. objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any.” In the same case Erie C.J. observed :– “It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding…… I do not quite agree with that; ……the law, I think, has been applied to many exercises of power which in common under- standing would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down.” The observations made by Erie C.J. were quoted and applied by Sir Robert Collier in Smith v. The’ Queen (2), and the observations of Lord Campbell in Regina v. The Archbishop of Canterbury (3) were to the. same effect.

(1) [1863] EngR 424; 14 C.B. (N.S.) 180. (2) 3 A.C. 614.

(3) 1E.& E. 559.

165 A similar opinion was expressed by Sir GeorgeJessel in Fisher v. Keane (1), Labouchere v. Earl of Wharncliffe (2), and Russell v. Russell (3). In the last mentioned case, he observed as follows :– “It [Wood v. Woad (4)] contains a very valuable state- ment by the Lord Chief Baron as to his view of the mode of administering justice by persons other than Judges who have judicial functions to perform which I should have been very glad to have had before me on both those club cases that I recently heard, namely, the case of Fisher v. Keane and the case of Labouchere v. Earl of Wharncliffe. The passage I mean is this, referring to a committee: ‘They are bound in the exercise of their functions by the rule expressed in the maxim “audi alteram partem,” that no man should be condemned to consequences without having the opportunity of making his defence. This rule is not confined to the con- duct of strictly legal’ tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals ‘.” This opinion was quoted with approval by Lord Macnaghten in Lapointe v. L’Association etc. de Montreal (5). In that case, on an application for pension by the appellant, who had been obliged to resign, the Board of Directors, without any judicial inquiry into the circumstances, resolved to refuse the claim on the ground that he was obliged to tender his resignation. This procedure was condemned by Lord Macnaghten as being “contrary to rules of society and above all contrary to the elementary principles of justice.” These observations of Lord Macnaghten were referred to and relied on in The King v. Tribunal of Appeal under the Hous- ing Act, 1919 (6). In that case, a company proposed to build a picture house and the local authority having prohibited ‘the building, the company appealed under the Housing (1) H. Ch. D. 353. (4) [1874] L.R. 9 Ex.

190.

(2) 13 Oh. D. 346. (5) [1906] A.C. 535.

(3) 14 Ch. D. 471. (6) [1920] I.B. 334.

166 (Additional Powers) Act, 1919, which contained a provision that an appeal could in certain cases be properly determined without a hearing and that the appellate Court could dis- pense with the hearing and determine the appeal summarily.

It was held that the meaning of rule 7 was that the tribunal on appeal might dispense with an oral hearing, not that they might dispense with a hearing of any kind, and that they were bound to give the appellants a hearing in the sense of an opportunity to make out a case. The Earl of Reading in delivering the judgment observed:

“The principle of law applicable to such a case is well stated by Kelly C.B. in Wood v. Woad in a passage which is cited with approval by Lord Macnaghten in Lapointe v. L’ Association etc. de Montreal …… ” In Local Government Board v. Arlidge(1), the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing, Town Planning, &c. Act, without an oral hearing and without being allowed to see the report made by the Board’s Inspector upon ‘public local inquiry. The House of Lords did not interfere with the order on the ground that the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the individual in the interests of the commu- nity and whose character was that of an organization with executive functions. The principle however was conceded and lucidly set forth that when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially, and they must deal with the question referred to them without bias and must give to each of the parties an opportunity of presenting its case, and that the decision must be come to in the spirit and with the sense of respon- sibility of a tribunal whose duty it is to mete out justice.

Commenting upon this case, which is generally regarded as an extreme case, Mr. Gavin Simonds, who afterwards became a member of the House of Lords observes :– (1) [1915] A.C.120.

167 “I think you would agree that if the subjectmatter of such proceedings as arc here indicated was the liberty of the subject, or indeed his life, you would regard such a judicial procedure as outrageous.” (See C.K. Allen’s “Law and Orders,” page 167).

I have particularly referred to cases which were before administrative tribunals, because I have to deal in this case with preventive detention which is said to be an execu- tive act and because I wish to point out that even before executive authorities and administrative tribunals an order cannot generally be passed affecting one’s rights without giving one such hearing as may be appropriate to the circum- stances of the case. I have only to add that Halsbury after enumerating the most important liberties which are recog- nized in England, such as right of personal freedom, right to freedom of speech, right of public meeting, etc., adds :– “It seems to me that there should be added to this list the following rights which appear to have become well-estab- lished–the right of the subject to have any case affecting him tried in accordance with the principles of natural justice, particularly the principles that a man may not be a judge in his own cause, and that no party ought to be con- demned unheard, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case …… “(Halsbury’s Laws of England, 2nd Edition, volume 6, page 392).

The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well-recognized in all modern civilized systems of law and which Halsbury puts on a par with well-recognized fundamental rights cannot be regarded as part of the law of this country. I must confess that I find it difficult to give a negative answer to this question. The principle being part of the British system of law and procedure which we have inherited, has been observed in this country for a very long the and is also deeply rooted in our ancient history, being the basis of the 168 panchayat system from the earliest times. The whole of the Criminal Procedure Code, whether it deals with trial of offences or with preventive or quasiadministrative measures such as are contemplated in sections 107, 108, 109, 110 and 145, is based upon the foundation of this principle, and it is difficult to see that it has not become part of the “law of the land” and does not inhere in our system of law. If that is so, then “procedure established by law” must include this principle, whatever else it may or may not include.

That the word “law” used in article 21 does not mean only State-made law is clear from the fact that though there is no statute laying down the complete procedure to be adopted in contempt of Court cases, when the contempt is not within the view of the Court, yet such procedure as now prevails in these cases is part of our law. The statute-law which regulates the procedure of trials and enquiries in criminal cases does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing arguments. In a number of cases, it has been held that though there may be no specific provision for notice in the statute, the provision must be read into the law. I am aware that some Judges have ex- pressed a strong dislike for the expression “natural jus- tice” on the ground that it is too vague and elastic, but where there are well-known principles with no vagueness about them, which all systems of law have respected and recognized, they cannot be discarded merely because they are in the ultimate analysis found to be based on natural jus- tice. That the expression “natural justice” is not unknown to our law is apparent from the fact that the Privy Council has in many criminal appeals from this country laid down that it shall exercise its power of interference with the course of criminal justice in this country when there has been a breach of principles of natural justice or departure from the requirements of justice. [See In re Abraham Mallory Dillet (1), Taba Singh v. King Emperor C), George Gfeller v.

The (1) 12 A.C. 459. (2) I.L.R. 48 Born. 515.

169 King(1), and Bugga and others v. Emperor(2). In the present case, there is no vagueness about the right claimed which is the right to have one’s guilt or innocence considered by an impartial body and that right must be read into the words of article 21. Article 21 purports to protect life and person- al liberty, and it would be a precarious protection and a protection not worth having, if the elementary principle of law under discussion which, according to Halsbury is on a par with fundamental rights, is to be ignored and excluded.

In the course of his arguments, the learned counsel for the petitioner repeatedly asked whether the Constitution would permit a law being enacted, abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England. The question envisages something which is not likely to happen, but it does raise a legal problem which can perhaps be met only in tiffs way that if the expression “procedure established by law” simply means any procedure established or enacted by statute it will be difficult to give a negative answer to the question, but ii the word “law” includes what I have endeavoured to show it does, such an answer may be justified. It seems to me that there is nothing revolutionary in the doctrine that the words “procedure established by law” must include the four principles set out in Professor Willis’ book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them. These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits. I have only to add that it has not been seriously controverted that “law” in this article means valid law and “procedure” means certain definite rules of proceeding and not something which is a mere pretence for procedure.

I will now proceed to examine article 22 of the Consti- tution which specifically deals with the subject (1) A.I.R. 1943P.C. 211. (2) A.I.R. 1919P. C. 108.

170 of preventive detention. The first point to be noted in regard to this article is that it does not exclude the operation of articles 19 and 21, and it must be read subject to those two articles, in the same way as articles 19 and 21 must be read subject to article 22. The correct position is that article 22 must prevail in so far as there are specific provisions therein regarding preventive detention, but, where there are no such provisions in that article, the operation of articles 19 and 21 cannot be excluded. The mere fact that different aspects of the same right have been dealt with in three different articles will not make them mutually exclusive except to the extent I have indicated.

I will now proceed to analyse the article and deal with its main provisions. In my opinion, the main provisions of this article are :–(1) that no person can be detained beyond three months without the report of an advisory board [clause 4 (a) ]; (2) that the Parliament may prescribe the circumstances and the class or classes of cases in which a person may be detained for more than three months without obtaining the opinion of an advisory board [clause 7 (a)];

(3) that when a person is preventively detained, the author- ity making the order of detention shall communicate to such person the grounds on which the order is made and shall afford him the earliest opportunity of making a representa- tion against the order [clause (5) ]; and (4) that the Parliament may 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 [clause 7 (b) ]. The last point does not require any consideration in this case, but the first three points do require considera- tion.

In connection with the first point, the question arises as to the exact meaning of the words “such detention” occur- ring in the end of clause 4 (a). Two alternative interpre- tations were put forward: (1) “such detention” means preven- tive detention; (2) “such detention” means detention for a period longer than three months. If the first interpreta- tion is correct, then the function of the advisory board would be to go into the merits of the case of each person and simply 171 report whether there was sufficient cause for his detention.

According to the other interpretation, the function of the advisory board will be to report to the government whether there is sufficient cause for the person being detained for more than three months. On the whole, I am inclined to agree with the second interpretation. Prima facie, it is a seri- ous matter to detain a person for a long period (more than three months) without any enquiry or trial. But article 22 (4) (a) provides that such detention may be ordered on the report of the advisory board. Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its mind to the vital ques- tion before the government, namely, whether prolonged deten- tion (detention for more than three’ months) is justified or not. Under article 22 (4) (a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty-ninth day. It would be some- what farcical to provide, that after a man has been detained for eighty-nine days, an advisory board is to say whether ‘ his initial detention was justified. On the other hand, the determination of the question whether prolonged detention (detention for more than three months)is justified must necessarily involve the determination of the question wheth- er the detention was justified at all, and such an interpre- tation only can give real meaning and effectiveness to the provision. The provision being in the nature of a protection or safeguard, I must naturally lean towards the interpreta- tion which is favourable to the subject and which is also in accord with the object in view.

The next question which we have to discuss relates to the meaning and scope of article 22 (7)(a) which runs as follows:- “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 preven- tive detention without obtaining 172 the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4).” The question is what is meant by “circumstances”‘ and “class or classes of cases” used in this provision. This question has arisen because of the way in which these ex- pressions appear to have been interpreted and applied in the Act of Parliament with which we are concerned. As the matter is important and somewhat complicated, I shall try to express my meaning as clearly as possible even at the risk of some repetition, and, in doing so, I must necessarily refer to the impugned Act as well as Lists I and III of the Seventh Schedule of the Constitution, under which Parliament had jurisdiction to enact it. Item 9 of List I–Union List–shows that the Parliament has power to legislate on preventive detention for reasons connected with (1) defence, (2) foreign affairs, and (3) security of India.. Under List III–Concurrent List–the appropriate item is item 3 which shows that law as to preventive detention can be made for reasons connected with (1) the security of the State, (2) the maintenance of public order, and (3) the maintenance of supplies and services essential to the community. The impugned Act refers to all the subjects mentioned in Lists I and III in regard to which law of preventive detention can be made. Section 3 (1)of the Act, the substance of which has already been mentioned, is important, and I shall reproduce it verbatim.

“The Central Government or the State Government may- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to- (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essen- tial to the community, or 173 (b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.” It will be noticed that all the subjects of legislation concerning preventive detention occurring in item of List I are grouped in sub-clause (1) of clause (a). The subjects in this group are three in number and, for convenience of reference, I shall hereafter refer to them as A, B and C.

In sub-.clause (ii), we find grouped two of the matters referred to in item 3 of List III, these being security of the State and the maintenance of public order. These two subjects, I shall refer to as D and E. In sub-clause (iii), reference has been made to the third matter in item 3 of List III, and I shall refer to this subject as F. With this classification, let us now turn to the Constitution itself.

On reading articles 22 (4) and 22 (7) together, it would be clear that so long as article 22 (4) (a) holds the field and Parliament does not act under clause (7) (a) of article 22, there must be an advisory board in every case, i.e., if the legislation relates to groups A to F, as it does here, there must be an advisory board for all these groups.

Article 22 (7) however practically engrafts an excep- tion. It states in substance that the Parliament may by an Act provide for preventive detention for more than three months without reference to an advisory board, but in such cases it shall be incumbent on the Parliament to prescribe (1) the circumstances and (2) the class or classes of cases in which such course is found to be necessary. If the case contemplated in clause (4)(a)is the rule and that contem- plated ‘in clause (7) (a) is the exception, then the circum- stances and the class or classes of cases must be of a special or extraordinary nature, so as to take the case out of the rule and bring it within the exception. It is always 174 possible to draw the line between the normal or ordinary and the abnormal or extraordinary cases. and this is what, in my opinion, the Parliament was expected to do under clause (7) (a). I do not think that it was ever intended that Parliament could at its will treat the normal as the abnor- mal or ‘the rule as the exception. But this is precisely what has been done in this case- All the items on which preventive legislation is possible excepting one, i.e., A to E, have been put within the exception, and only one, F, which relates to maintenance of supplies and services essen- tial to the community, has been allowed to remain under the rule. In other words, it is provided that there shall be an advisory board only for the last category, F, but no provi- sion having been made for the other categories, A to E, it may be assumed that the advisory board has been dispensed with in those cases. The learned Attorney-General maintained that it would have been open to the Parliament to dispense with the advisory board even for the category F, and if such a course had been adopted it would not have affected the validity of the Act. This is undoubtedly a logical position in the sense that it was necessary for him to go as far as this to justify his stand; but, in my opinion, the course adopted by the Parliament in enacting section 12 of the impugned Act is not what is contemplated under article 22 (7) (a) or is permitted by it. The circumstances to be prescribed must be special and extraordinary circumstances and the class or classes of cases must be of the same na- ture. In my opinion, the Constitution never contemplated that the Parliament should mechanically reproduce all or most of the categories A to F almost verbatim and not apply its mind to decide in what circumstances and in what class or classes of cases the safeguard of an advisory board is to be dispensed with.

I may state here that two views are put forward before us as to how clauses (4) (a) and 7 (a) of article 22 are to be read:–(1) that clause (4) (a) lays down the rule that in all cases where detention for more than three months is ordered, it should be done in consultation with and on the report of the advisory 175 board, and clause (7) (a) lays down an exception to this rule by providing that Parliament may pass an Act permitting detention for more than three months without reference to an advisory board; (2) that clauses (4)(a) and (7) (a) are independent clauses making two separate and alternative provisions regarding detention for more than three months, in one case on the report of an advisory board and in other case without reference to an advisory board. Looking at the substance and not merely at the words, I am inclined to hold that clause (7) (a) practically engrafts an exception on the rule that preventive detention for more than three months can be ordered only on the report of an advisory board, and so far I have proceeded on that footing. But it seems to me that it will make no difference to the ulti- mate conclusion, whichever of the two views we may adopt.

Even on the latter view, it must be recognized that the law which the Constitution enables the Parliament to make under article 22 (7) (a) would be an exceptionally drastic law, and, on the principle that an exceptionally drastic law must be intended for an exceptional situation, every word of what I have said so far must stand. Clause (7) (a) is only an enabling provision, and it takes care to provide that the Parliament cannot go to the extreme limit to which it is permitted to go without prescribing the class or classes cases and the circumstances to which the extreme law would be applicable. It follows that the class or classes of cases and the circumstances must be of a special nature to require such legislation.

It was urged that the word “and” which occurs between “circumstances” and “class or classes of cases” is used in a disjunctive sense and should be read as “or,” and by way of illustration it was mentioned that when it is said that a person may do this and that, it means that he is at liberty to do either this or that. I do not think that this argu- ment is sound. I think that clause (7)(a) can be accurately paraphrased somewhat as follows :–” Parliament may dispense with an advisory board, but in that case it shall prescribe the circumstances and the class or 23 176 classes of cases …….. “If this is the meaning, then ‘ ‘and” must be read as “and” and not as “or”; and “may” must be read as “shall.” Supposing it was said that Parliament may prescribe the time and place for the doing of a thing, then can it be suggested that both time and place should not be prescribed ? It seems obvious to me that the class or classes of cases must have some reference to the persons to be detained or to their activities and movements or to both.

“Circumstances” on the other hand refer to something extra- neous, such as surroundings, background, prevailing condi- tions, etc., which might prove a fertile field for the dangerous activities of dangerous persons. Therefore the provision clearly means that both the circumstances and the class or classes of cases (which are two different expres- sions with different meanings and connotations and cannot be regarded as synonymous) should be prescribed, and prescrip- tion of one without prescribing the other will not be enough. As I have already stated, such law as can be enact- ed under article 22 (7) (a) must involve, by reason of the extreme limit to which it can go, serious consequences to the persons detained. It will mean (1) prolonged detention, i.e., detention for a period longer than three months, and (2) deprivation of the safeguard of an advisory board. Hence article 22 (7) (a) which purports to be a protective provi- sion will cease to serve its object unless it is given a reasonable interpretation. To my mind, what it contemplates is that the law in question must not be too general but its scope should be limited by prescribing both the class or classes of cases and the circumstances.

It was contended that the expression “class or classes of cases” is wide enough to enable the Parliament to treat any of the categories mentioned in Lists I and III, items 9 and 3 respectively, (i.e., any of the categories A to F) as constituting a class. At first sight, it seemed to me to be a plausible argument,, but the more I think about it the more unsound it appears to me. The chief thing to be remem- bered is what I have already emphasized more than once, viz., that a special or extreme type of law must be limited to special classes of cases and circumstances. Under the 177 Constitution, the Parliament has to prescribe “the class or classes,” acting within the limits of the power granted to it under Lists I and III. The class or classes must be its own prescription and must be so conceived as to justify by their contents the removal of an important safeguard provid- ed by the Constitution. Prescribing is more than a mere mechanical process. It involves a mental effort to select and adapt the thing prescribed to the object for which it has to be prescribed. We find here that what is to be prescribed is “class or classes” (and also “circumstances “). We also find that what the law intends to provide is prolonged detention (by which words I shall hereafter mean detention for more than three months) and elimination of the advisory board. The class or classes to be prescribed must therefore have a direct bearing on these matters and must be so selected and stated that any one by looking at them may say :–” That is the reason why the law has prescribed prolonged detention without reference to an advisory board.” In other words, there must be something to make the class or classes prescribed fit in with an extreme type of legisla- tion–some element of exceptional gravity or menace, which cannot be easily and immediately overcome and therefore necessitates prolonged detention; and there must be some- thing to show that reference to an advisory board would be an undesirable and cumbersome process and wholly unsuitable for the exceptional situation to which the law applies.

Perhaps a simple illustration may make the position still clearer. Under the Lists, one of the subjects on which Parliament may make a law of preventive detention is “matter connected with the maintenance of public order.” The Act simply repeats this phraseology and states in sec- tion 3: “with a view to preventing him (the person to be detained) from acting in a manner prejudicial to the main- tenance of public order.” This may be all right for section 3, but section 12 must go further. An act prejudicial to.

the maintenance of public order may be an ordinary act or it may be an act of special gravity. I think that article 22 (7)(a) contemplates that the graver and 178 more heinous types of acts falling within the category of acts prejudicial to the maintenance of public order (or other heads) should be prescribed so as to define and cir- cumscribe the area of an exceptional piece of legislation.

That some kind of sub-classification (if I may be per- mitted to use this word) of the categories A to F was possi- ble can be illustrated by reference to regulation 18-]3 of the British Defence of the Realm Regulations. This regula- tion was made under an Act of 1039 which authorized “the making of regulations for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm.” The two matters “public safety” and “defence of the realm” are analogous to some of the heads stated in Lists I and III. It will be instructive to note that under these two heads, regulation 18-B has set forth several subheads or class or classes of cases in which preventive detention could be ordered. These classes are much more specific than what we find in section a of the impugned Act and therefore there is less chance of misuse by the executive of the power to order preventive detention. The classes set out are these :–(1) If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associa- tions, (2) if the Secretary of State has reasonable cause to believe any person to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts, (3) if the Secretary of State has reasonable cause to believe any person to have been or to be a member of, or to have been or to be active in the furtherance of the objects of, any such organization as is hereinafter mentioned …… (a) the organization is subject to foreign influence or control, (b) the persons in control of the organization have or have had associations with, persons concerned in the government of, or sympathies with the system of government of, any Power with which His Majesty is at war, and in either case there is danger of the utilization of the organization for pur- poses prejudicial to the public safety, etc., (4) if the Secretary of State has reasonable cause to believe that the recent conduct of any person for the time being in an area or any words recently written or spoken by such a person expressing sympathy with the enemy, indicates or indicate that person is likely to assist the enemy. I have only to point out that the scope within which preventive detention can be legislat- ed upon in this country is much larger than the scope indi- cated in the British Act under which Regulation 18-B was framed, and therefore there is more scope for specification of the circumstances as well as the class or classes of cases under the impugned Act. But all that has been done is that words which occur in the legislative Lists have been taken and transferred into the Act.

What I have stated with regard to class or classes of cases also applies to the circumstances which are also to be prescribed under article 22 (7) (a). These circumstances are intended to supply the background or setting in which the dangerous activities of dangerous persons might prove specially harmful. They must be special circumstances which demand a specially drastic measure and under which reference to an advisory board might defeat the very object of preven- tive action. The evident meaning of article 22 (7) (a) seems to be that the picture will not be complete without mentioning both the classes and the circumstances. There was some discussion at the Bar as to what kind of circumstances might have been specified. It is not for me to answer this question, but I apprehend that an impending rebellion or war, serious disorder in a particular area such as has induced the Punjab Government to declare certain areas as “disturbed areas,” tense communal situation, prevalence of sabotage or widespread political dacoities and a variety of other matters might answer the purpose the Constitution had in view.

I will now try to sum up the result of a somewhat pro- tracted discussion into which I had to enter merely to clarify the meaning of a very important provision of the Constitution which has, in my opinion, been completely misunderstood by the framers of the 180 impugned Act. It appears to me that article 22 deals with three classes of preventive detention :– (1) preventive detention for three months;

(2) preventive detention for more than three months on the report of the advisory board; and (3) preventive detention for more than three months without reference to the advisory board.

If one has to find some kind of a label for these class- es for a clear understanding of the subject, one may label them as “dangerous,” “more dangerous” and “most danger- ous.” Now so far as the first two classes are concerned, there is nothing to be prescribed under the Constitution Apparently, the authors of the Constitution were not much concerned about class No. (1), and they thought that in so far as class No. (2) was concerned the provision that a reference to the advisory board was necessary coupled with the provision that detention was not to exceed the maximum period which may be fixed by the Parliament was enough. But they did take care to make a special provision for class No.

(3), and it is extermly important for the liberty of the subject as well as for the smooth working of the Constitu- tion that this provision should not be lightly treated but should receive a well considered and reasonable construc- tion. It is elementary that the rigour of a law should correspond to or fit the gravity of the evil or danger it aims at combating, and it is also evident that the law which the Parliament has been permitted to enact under article 22 (7) (a) can, so far as rigour is concerned, go to the I farthest limit. It follows that the law must have been intended for exceptionally grave situations and exigencies.

Hence the authors of the Constitution have made it necessary that the Parliament should put certain specifications into the Act which it is empowered to pass under article 22 (7) (a), so that by means of these specifications the necessity for enacting so drastic a law should be apparent on the face of it, and its application should be confined to the classes and circumstances specified. The Act must prescribe (1) “c]ass or classes of cases” which are to have reference to the persons.

181 against whom the law is to operate and their activities and movements and (2) “circumstances” which would bring into prominence the conditions and the backgrounds against which dangerous activities should call for special measures. By means of such two-fold prescription, the sphere for the application of the law will be confined only to a special type of cases–it will be less vague, less open to abuse and enable those who have to administer it to determine objec- tively when a condition has arisen to justify the use of the power vested in them by the law. This, in my opinion, is the true meaning and significance of article 22 (7) (a) and any attempt to whittle it down will lead to deplorable results.

Having stated my views as to the construction of article 22 (7) (a), I propose to consider at once whether section 12 of the impugned Act conforms to the requirements of that provision. In my opinion, it does not, because it fails to prescribe either the circumstances or the class or classes of cases in the manner required by the Constitution. It does not prescribe circumstances at all, and, though it purports to prescribe the class or classes, it does so in a manner showing that the true meaning of the provision from which the Parliament derived its power has not been grasped.

I have sufficiently dwelt on this part of the case and shall not repeat what I have already said. But I must point out that even if it be assumed that the view advanced by the learned Attorney-General is correct and it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists I and III as constitut- ing a class and to include it without any qualification or change, the impugned section cannot be saved on account of a two-fold error :–. (1) the word “and” which links “class or classes” with “circumstances” in article 22 (7) (a) has been wrongly construed to mean “or ;” and (2) the distinction between “circumstances” and “class or classes” has been completely ignored and they are used as interchangeable terms. The first error appears to me to be quite a serious one, because though the Constitution lays down two require- ments and insists 182 on the prescription of circumstances as well as class or classes, it has been assumed in enacting section 12 that prescription of one of them only will be enough. The other error is still more serious and goes to the root of the matter. There can be no doubt that circumstances and class or classes are two different expressions and have different meanings, but the Act proceeds on the assumption that cir- cumstances are identical with class or classes, as will appear from the words “any person detained in any of the following classes of cases or under any of the following circumstances” used in the section. I have already shown how important the specification of circumstances is in legislation of such an extreme and drastic character. There- fore, to confuse “classes” with “circumstances” and to omit to mention “circumstances” at all are in my opinion grave errors. There can, in my opinion, be no escape from the conclusion that section 12 of the Act by which a most impor- tant protection or safeguard conferred on the subject by the Constitution has been taken away, is not a valid provision, since it contravenes the very provision in the Constitution under which the Parliament derived its competence to enact it.

I will now briefly deal with article 22 (5) which makes it incumbent on the authority ordering preventive deten- tion to communicate to the person detained the grounds on which the order has been made and to give him the earliest opportunity of making a representation against the order. It must be remembered that this provision is intended to afford protection to and be a safeguard in favour of a detained person, and it cannot be read as limiting any rights which he has under the law or any other provisions of the Consti- tution. If article 21 guarantees that before a person is deprived of his liberty he must be allowed an opportunity of establishing his innocence before an impartial tribunal, that right still remains. In point of fact, there is no express exclusion of that right in the Constitution and no prohibition against constituting an impartial tribunal. On the other hand, the right to make a representation which has 183 been granted under the Constitution, must carry with it the right to the representation being properly considered by an impartial person or persons. There must therefore be some machinery for properly examining the cases of the detenus and coming to the conclusion that they have not been de- tained without reason. If this right had been expressly taken away by the Constitution, there would have been an end of the matter, but it has not been expressly taken away, and I am not prepared to read any implicit deprivation of such a valuable right. The mere reference to an advisory board in article 22 (4) (a) does not, if my interpretation of the provision is correct, exclude the constitution of a proper machinery for the purpose of examining the cases of detenus on merits. The constitution of an advisory board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day. In the view I take, all that Parliament could do under clause (7) (a) of article 22 was to dispense with an advisory board for the purpose contemplated in clause (4) (a) of that article and not to dispense with the proper machinery, by whichever name it may be called, for the purpose of examining the merits of the case of a detained person.

It was argued that article 22 is a code by itself and the whole law of preventive detention is to be found within its four corners. I cannot however easily subscribe to this sweeping statement. The article does provide for some mat- ters of procedure, but it does not exhaustively provide for them. It is said that it provides for notice, an opportuni- ty to the detenu to represent his case, an advisory board which may deal with his case, and for the maximum period beyond which a person cannot be detained. These points have undoubtedly been touched, but it cannot be said that they have been exhaustively treated. The right to represent is given, but it is left to the legislature to provide the machinery for dealing with the representation. The advisory board has been mentioned, but 24 184 it is only to safeguard detention for a period longer than three months. There is ample latitude still left to the Parliament, and if the Parliament makes use of that latitude unreasonably, article 19 (5) may enable the Court to see whether it has transgressed the limits of reasonableness.

I will now proceed to deal with the Act in the light of the conclusions I have arrived at. So far as section 3 of the Act is concerned, it was contended that it is most unreasonable, because it throws a citizen at the mercy of certain authorities, who may at their own will order his detention and into whose minds we cannot probe to see wheth- er there is any foundation for the subjective satisfaction upon which their action is to rest. I am however unable to accept this argument. The administrative authorities who have to discharge their responsibilities have to come to quick decisions and must necessarily be left to act on their own judgment. This principle is by no means unreasonable and it underlies all the preventive or quasi administrative measures which are to be found in the Criminal Procedure Code. Under section 107 of that code, it is left to the discretion of the magistrate concerned to determine whether in his opinion there is sufficient ground for proceeding against any person who is likely to occasion a breach of the peace. Under section 145 also, his initial action depends upon his personal satisfaction. Therefore I do not find anything wrong or unconstitutional in section 3 of the Act.

But I must point out that it is a reasonable provision only for the first step, i.e., for arrest and initial detention, and must be followed by some procedure for testing the so- called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.

I do not also find anything radically wrong in section 7 of the Act, which makes it incumbent on the authority con- cerned to communicate to a detenu the grounds on which the order has been made and to 185 afford him the earliest opportunity of making a representa- tion against the order. Section 10 which provides that the advisory board shall make its report within ten weeks from the date of the detention order is in conformity with arti- cle 22 (4) (a) of the Constitution, and the only comment which one can make is that Parliament was not obliged to fix such a long period for the submission of a report and could have made it shorter in ordinary cases. The real sections which appear to me to offend the Constitution are sections 12 and 14. I have already dealt with the principal objec- tion to section 12, while discussing the provisions of article 22 (7) (a) and I am of the opinion that section 12 does not conform to the provisions of the Constitution and is therefore ultra vires. I also think that even if it be held that it technically complies with the requirements of article 22 (7) (a), Parliament has acted unreasonably in exercising its discretionary power without applying its mind to essential matters and thus depriving the detenus of the safeguard of an advisory board which the Constitution has provided in normal cases. So far as section 14 is con- cerned, all my colleagues have held it to be ultra vires, and, as I agree with the views expressed by them, I do not wish to encumber my judgment by repeating in my own words what has been said so clearly and so well by them. Section 14 may be severable from the other provi- sions of the Act and it may not be possible to grant any relief to the petitioner on the ground that section 14 is invalid. But I think that section 12 goes to the very root of the legislation inasmuch as it deprives a detenu of an essential safeguard, and in my opinion the petitioner is entitled to a writ of habeas corpus on the ground that an essential provision of the Constitution has not been com- plied with. This writ will of course be without prejudice to any action which the authorities may have taken or may hereafter take against the petitioner under the penal law I have to add this qualification because there were allega- tions of his being involved in some criminal cases but the actual facts were not clearly brought out before us.

186 I have only to add a few concluding remarks to my judg- ment. In studying the provisions of the impugned Act, I could not help instituting a comparison in my own mind between it and similar legislation in England during the last two world wars. I could not also help noticing that the impugned Act purports to be a peacetime Act, whereas the legislation to which I have referred was enacted during the war. During the first war as well as the second, a number of persons were detained and a number of cases were brought to Court in connection with their detention, but the two lead- ing cases which will be quoted again and again are Rex v.

Halliday (1) and Liversidge v. Sir John Anderson(2). We are aware that in America certain standards which do not conform to ordinary and normal law have been applied by the Judges during the period of the war and sometimes they are compen- dionsly referred to as being included in “war power.” The two English cases to which I have referred also illustrate the same principle, as will appear from two short extracts which I wish to reproduce. In Rex v. Halliday (3), Lord Atkinson observed as follows :–” However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the’ war, or escape from national plunder or enslavement.” In Liversidge v. Sir John Anderson (4), Lord Macmillan struck the same note in these words :– “The liberty which we so ‘justly extol is itself the gift of the law and as Magna Charta recognizes may by the law be forfeited or abridged. At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country’s cause it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention.” (1) [1917] A.C.260. (3) [1917] UKHL 1; [1917] A.C. 260atp. 271.

[1941] UKHL 1; [1942] A.C. 206. (4) [1941] UKHL 1; [1942] A.C. 206 at p.

257.

187 These passages represent the majority view in the two cases, but the very elaborate judgments of Lord Shaw in Rex v. Halliday and that of Lord Atkin in Liversidge v. Sir John Anderson show that there. was room for difference of opinion as well as for a more dispassionate treatment of the case and the points involved in it. It is difficult to say that there is not a good substratum of sound law in the celebrat- ed dictum of Lord Atkin that even amidst the clash of arms the laws are not silent and that they speak the same lan- guage in war as in peace. However that may be, what I find is that in the regulations made in England during the first war as well as the second war there was an elaborate provi- sion for an advisory board in all cases without any excep- tion, which provided a wartime safeguard for persons de- prived of their liberty. There was also a provision in the Act of 1939 that the Secretary of State should report at least once in every month as to the action taken under the regulation including the number of persons detained under orders made thereunder. I find that these reports were printed and made available to the public. I also find that the Secretary of State stated in the House of Commons on the 28th January, 1943, that the general order would be to allow British subjects detained under the Regulation to have consultations with their legal advisers out of the hearing of an officer. This order applied to consultations with barristers and solicitors but not to cases where solicitors sent to interview a detained person a clerk who was not an officer of the High Court. The impugned Act suffers in com- parison, on account of want of such provisions, though, so far as I can see, no great harm was likely to have been caused by setting up a machinery composed of either adminis- trative or judicial authorities for examining the cases of detained persons so as to satisfy the essentials of fairness and justice. The Act also suffers in comparison with some of the later Provincial Acts in which the safeguard of an advisory board is , expressly provided for. I find that there is a provision in section 12 (2) of the Act for the review of the cases of detenus after six months, but this is quite different 188 from examining the merits of the case. The object of such a review is obviously to find out whether by reason of any change in the circumstances, a review of the original order is required.

I hope that in pointing out the shortcomings of the Act I will not be misunderstood. I am aware that both in Eng- land and in America and also in many other countries, there has been a reorientation of the old notions of individual freedom which is gradually yielding to social control in many matters. I also realize that those who run the State have very onerous responsibilities, and it is not correct to say that emergent conditions have altogether disappeared from this country. Granting then that private rights must often be subordinated to the public good, is it not essen- tial in a free community to strike a just balance in the matter ? That a person should be deprived of his personal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have to yield to those needs. Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his innocence, and I do not see how the establishment of an appropriate machinery giving him such a chance can be an impediment to good and just government.

PATANJALI SASTRI J.–This is an application under arti- cle 32 of the Constitution of India for releasing the petitioner from detention in jail without trial under directions purporting to be issued by the Government of Madras under the Preventive Detention Act, 1950, and it has the distinction of being the first application invoking the guaranteed protection of this Court as the guardian of Fundamental Rights against alleged infringement of the petitioner’s right to freedom of movement. As the case involved issues of great public importance and breaking of new ground it was argued with thoroughness and ability on both sides, reference being made to more or less analogous provisions of the Constitutions of 189 other countries and in particular the Constitution of the United States of America.

The petitioner had been under detention previously under orders passed by the said Government under the Madras Main- tenance of Public Order Act, 1947, but as the validity of that Act and all other similar local public safety enact- ments had been questioned in some of the High Courts in India after the new Constitution came into force, the Par- liament enacted a comprehensive measure called the Preven- tive Detention Act, 1950, (hereinafter referred to as the impugned Act) extending to the whole of India with a certain exception not material here.

The Act came into force on 25th February 1950, and, on the 27th February, the Government of Madras, in purported exercise of the powers conferred by the impugned Act and in supersession of earlier orders, directed the detention of the petitioner, and the order was served on him on 1st March. The petitioner contends that the impugned Act and in particular sections 3, 7, 10, 11, 19,, 13 and 14 thereof take away or abridge the fundamental right to freedom of movement in contravention of article 13 (2) of the Constitu- tion and is, therefore, void as declared therein.

Article 13 is one of a fasciculus of articles which are comprised in part III of the Indian Constitution headed “Fundamental Rights.” This Part forms a new feature of the Constitution and is the Indian “Bill of Rights.” It is modelled on the first ten Amendments of the American Con- stitution which declare the fundamental rights of the American citizen. Article 12, which is the first article in this Part, defines “the State” as including the Governments and Legislatures of the Union and the States as well as all local and other authorities against which the fundamental rights are enforceable, and article 13 (1) declares that all existing laws inconsistent with the provisions of Part III shall, to the extent of the inconsistency, be void.

Clause (2) of the article, on which the petitioner’s con- tention is primarily founded reads as follows:

190 “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.” As the constitutional inhibition against deprivation or abridgement relates only to “the rights conferred by this Part,” it is necessary first to ascertain the nature and extent of the right which, according to the petitioner, Part III has conferred on him, and, secondly, to determine wheth- er the right so ascertained has been taken away or abridged by the impugned Act or by any of its provisions. The first question turns on the proper interpretation of the relevant articles of the Constitution, and the second involves the consideration of the provisions of the impugned Act.

Mr. Nambiar appearing for the petitioner advanced three main lines of argument. In the first place, the right to move freely throughout the territory of India referred to in article 19 (1)(d) is of the very essence of personal liber- ty, and inasmuch as the detention authorised by the impugned Act was not a “reasonable restriction” which Parliament could validly impose on such right under clause (5) of the article, the impugned Act is void. Alternatively, the petitioner had a fundamental right under article 21 not to be deprived of his personal liberty except according to procedure established by law, and the impugned Act by autho- rising detention otherwise than in accordance with proper procedure took away that right and was therefore void. And, lastly, the provisions of the impugned Act already re- ferred to were ultra vires and inoperative as Parliament in enacting them has overstepped the ]imitations placed on its legislative power by article 22 clauses (4) to (7).

Accordingly, the first question for consideration is whether article 19 (1) (d) and (5) is applicable to the present case. “Liberty,” says John Stuart Mill, “consists in doing what one desires. But the liberty’ of the individual must be thus far limited–he must not make him- self a nuisance to others.” Man, as a rational being, desires to do many things, but in a civil society his de- sires have to be controlled, regulated 191 and reconciled with the exercise of similar desires. by other individuals. Liberty has, therefore, to be limited in order to be effectively possessed. Accordingly, article 19, while guaranteeing some of the most valued phases or elements of liberty to every citizen as civil1 rights, pro- vides for their regulation for the common good by the State imposing certain “restrictions” on their exercise.

The power of locomotion is no doubt an essential element of personal liberty which means freedom from bodily restraint, and detention in jail is a drastic invasion of that liberty.

But the question is: Does article 19, in its setting in Part III of the Constitution, deal with the deprivation of per- sonal liberty in the sense of incarceration ? Sub-clause (d) of clause (1) does not refer to freedom of movement simplic- iter but guarantees the right to move freely “throughout the territory of India.” Sub-clause (e) similarly guaran- tees the right to reside and settle in any part of the territory of India. And clause (5) authorises the imposi- tion of “reasonable restrictions” on these rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Reading these provisions together, it is reasonably clear that they were designed primarily to emphasise the factual unity of the territory of India and to secure the right of a free citizen to move from one place in India to another and to reside and settle in any part of India unhampered by any barriers which nar- row-minded provincialism may seek to interpose. The use of the word “restrictions” in the various sub-clauses seems to imply, in the context, that the rights guaranteed by the article are still capable of being exercised, and to exclude the idea of incarceration though the words “restriction” and “deprivation” are sometimes used as interchangeable terms, as restriction may reach a point where it may well amount to deprivation. Read as a whole and viewed in its setting among the group of provisions (articles 19-22) relating to “Right to -Freedom,” article 19 seems to my mind to pre–suppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum 192 of personal freedom on which alone the enjoyment of these rights necessarily rests. It was said that subclause (f) would militate against this view, as the enjoyment of the right “to acquire, hold and dispose of property” does not depend upon the owner retaining his personal freedom. This assumption is obviously wrong as regards moveable proper- ties, and even as regards immoveables he could not acquire or dispose of them from behind the prison bars; nor could he “hold” them in the sense of exercising rights of possession and control over them which is what the word seems to mean in the context. But where, as a penalty for committing a crime or otherwise, the citizen is lawfully deprived of his freedom, there could no longer be any ques- tion of his exercising or enforcing the rights referred to in clause (1). Deprivation of personal liberty in such a situation is not, in my opinion, within the purview of article 19 at all but is dealt with by the succeeding arti- cles 20 and 21. In other words, article 19 guarantees to the citizens the enjoyment of certain civil liberties while they are free, while articles 20-22 secure to all persons–citizens and non-citizens–certain constitutional guarantees in regard to punishment and prevention of crime.

Different criteria are provided by which to measure legisla- tive judgments in the two fields, and a construction which would bring within article 19 imprisonment in punishment of a crime committed or in prevention of a crime threatened would, as it seems to me, make a reductio ad absurdum of that provision. If imprisonment were to be regarded as a “restriction” of the right mentioned in article 19 (1)(d), it would equally be a restriction on the rights mentioned by the other subclauses of clause (1), with the result that all penal laws providing for imprisonment as a mode of punish- ment would have to run the gauntlet of clauses (2) to (6) before their validity could be accepted. For instance,the law which imprisons for theft would, on that view, fall to be justified under clause (2) as a law sanctioning restric- tion of freedom of speech and expression. Indeed, a Divi- sion Bench of the Allahabad High Court,in a recent unreport- ed decision brought to our notice 193 applied the test of undermining the security of the State or tending to overthrow it in determining the validity or otherwise of the impugned Act. The learned Judges construed article 19 as covering cases of deprivation of personal liberty and held, logically enough, that inasmuch as the impugned Act, by authorising preventive detention, infringed the right to freedom of speech and expression, its validity should be judged by the reservations in clause (2), and, as it failed to stand that test, it was unconstitutional and void.

Mr. Nambiar did not seek to go so far. He drew a dis- tinction between the right conferred by sub-clause (d) and those conferred by the other sub-clauses. He urged, refer- ring to Blackstone’s Commentaries, that personal liberty consisted “in moving one’s person to whatever place one’s inclination might direct,” and that any law which de- prived a person of such power of locomotion was a direct invasion of the right mentioned in sub-clause (d), whereas it inter-fered only indirectly and consequentially with the rights mentioned in the other sub Clauses. There is no substance in the distinction suggested. It would be illogi- cal, in construing article 19, to attribute to one of the sub-clauses a scope and effect totally different from the scope and effect of the others or to draw a distinc-. tion between one right and another in the group. All the rights mentioned in clause (1) are equally essential elements in the liberty of the individual in any civilised and democrat- ic community, and imprison, ment operates as an extinction of all of them alike. It cannot, therefore, be said that deprivation of personal liberty is an infringement of the right conferred by sub-clause (d) alone but not of the others. The learned Judges of the Allahabad High Court realised this and were perfectly logical in holding that the constitutional validity of a law providing for deprivation of personal liberty or imprisonment must be judged by the tests laid down not only in clause (5) of article 19 but also in the other clauses including clause (2), though their major premise that deprivation of personal liberty was a “restriction” within the meaning of article 19 is, in my judgment, erroneous.

194 It was said that preventive detention being a drasic re- striction of the right to move freely was, in its pith and substance,” within article 19 (1) (d) read with clause (5) and not within article 21 which deals with crime and its punishment and prevention. There is no room here, in my opinion, for the application of the rule of “pith and sub- stance.” As pointed out by the Privy Council in Prafulla Kumar Mukherjee v. The Bank of Commerce Ltd., Khulna (1), approving the observations of the Federal Court in Subrah- manyam Chettiar v. Muttuswamy Goundan (2), the rule was evolved by the Board for determining whether an impugned statute was, in its true character, legislation with respect to matters within the jurisdiction of one legislature or another in a scheme of divided legislative power. No such question arises here. What the Court has to ascertain is the true scope and meaning of article 19 in the context of Part III of the Constitution, in order to decide whether depriva- tion of personal liberty falls within that article, and the pith and substance rule will be more misleading than helpful in the decision of that issue. Article 19, as I have already indicated, guarantees protection for the more important civil liberties of citizens who are in the enjoyment of their freedom, while at the same time laying down the re- strictions which the legislature may properly impose on the exercise of such rights, and it has nothing to do with deprivation of personal liberty or imprisonment which is dealt with by the succeeding three articles.

There is also another consideration which points to the same conclusion. The ]Drafting Committee of the Constituent Assembly, to whose Report reference was freely made by both sides during the argument, recommended “that the word liber- ty should be qualified by the insertion of the word ‘person- al ‘ before it, for otherwise it might be construed very widely so as to include even the freedoms already dealt with in article 13” (now article 19). The acceptance of this suggestion shows that whatever may be the generally accepted (1) 74 I.A. 23. (2) [1940] F.C.E. 188.

195 connotation of the expression “personal liberty,” it was used in article 21 in a sense which excludes the freedoms dealt with in article 19, that is to say, personal liberty in the context of Part III of the Constitution is something distinct from the freedom to move freely throughout the territory of India.

It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation.

This view of the correlation between the two articles has found favour with some of the Judges in the High Courts which have had occasion to consider the constitutional validity of the impugned Act. It is, however, to be ob- served that article 19 confers the rights therein specified only on the citizens of India, while article 21 extends the protection of life and personal liberty to all persons–citizens and noncitizens alike. Thus, the two articles do not operate in a conterminous field, and this is one reason for rejecting the correlation suggested. Again, if article 21 is to be understood as providing only proce- dural safeguards, where is the substantive right to personal liberty of non-citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the proce- dural safeguard in article 21 exended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution ? The truth is that arti- cle 21, like its American prototype in the Fifth and Four- teenth Amendments of the Constitution of the United States, presents an example of the fusion of procedural and substan- tive rights in the same provision. The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law. “Process” or “procedure” in this context connotes both the act and the manner of proceeding to take away a man’s life or per- sonal liberty. And the first and essential step in a proce- dure established by law for such deprivation must be a law made by a competent legislature 196 Authorising such deprivation. This brings me to the consid- eration of articles 21 and 22 to which was deroted the greater part of the debate at the Bar.

These articles run as follows:

“21. No person shall be deprived of his life or person- al liberty except according to procedure established by law.

22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) 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.

(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 suffi- cient cause for such detention:

Provided that nothing in this sub-clause shall’ autho- rise the detention of any person beyond the maximum period prescribed by any law made by parliament under sub-clause (b) 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 (b) of clause (7).

197 (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, commu- nicate 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 clause (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 preven- tive 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 provid- ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).” Mr. Nambiar urged that the word “law” in article 21 should be understood, not in the sense of an enactment but as signifying the immutable and universal principles of natural justice–the jus naturale of the civil law–and that the expression “procedure established by law” meant the same thing as that famous phrase “due process of law” in the American Constitution in its procedural aspect.

Numerous American decisions were cited to show that the phrase implied the basic requirements of (1) an objective and ascertainable standard of conduct to which it is possi- ble to conform, (2) notice to the party of the accusation against him, (3) a reasonable opportunity for him to estab- lish his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment Mr. Nambiar conceded that these requirements might have to be modified or adapted to suit the nature of the particular proceeding and the object it had in 198 view, as for instance, in a case of preventive detention, previous notice, which might result in the person concerned going underground might be dispensed with Learned counsel insisted that these requirements, being the very core of the principles of natural justice which transcended all State- made laws, must be substantially complied with by any law governing the process of deprivation of life or personal liberty, subject, of course, to any express provision in the Constitution sanctioning their relaxation or dispensation in any case or class of cases. He also appealed to the Pream- ble of the Constitution as the guiding star in its interpre- tation to support his thesis that, in view of the democratic Constitution which the people of India have purported to give themselves guaranteeing to the citizens certain funda- mental rights which are justiciabke, the provisions of Part III must be construed as being paramount to the legislative will, as otherwise the socalled fundamental right to life and personal liberty would have no protection against legis- lative action, and article 13 12) would be rendered nugato- ry.

There can be no doubt that the people of India have, in exercise of their sovereign will as expressed in the Pream- ble, adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, socalled, I apprehend, because they have been re- tained by the people and made paramount to the delegated powers, as in the American model. Madison (who played a prominent part in framing the First Amendment of the Ameri- can Constitution) pointing out the distinction, due to historical reasons, between the American and the British ways of securing “the great and essential rights of the people,” observed “Here they are secured not by laws para- mount to prerogative but by Constitutions paramount to laws:” Report on the Virginia Resolutions, quoted in Near v. Minnesota (1).

(1) [1931] USSC 154; 283 U.S. 697.

109 This has been translated into positive law in Part III of the Indian Constitution, and I agree that in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind. This, howev- er, is not to say that the language of the provisions should be stretched to square with this or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment, constitutional or other, that its spirit, no less than its intendment should be collected primarily from the natural meaning of the words used.

Giving full effect to these principles, however, I am unable to agree that the term “law” in article 21 means the immutable and universal principles of natural justice.

“Procedure established by law” must be taken to refer to a procedure which has a statutory origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as “the immutable and universal principles of natural justice.” In my opinion, “law” in article 21 means “positive or State-made law.” No doubt, the American Judges have adopted the other connotation in their interpretation of the due process clause in the Fifth and Fourteenth Amendments of the Ameri- can Constitution (” Nor shall any person be deprived of life, liberty or property without due process of law “).

But that clause has an evolutionary history behind it. The phrase has been traced back to 28 Edw. III Ch. 3, and Coke in his Institutes identified the term with the expression “the law of the land” in the Great Charter of John. Even in England where the legislative omnipotence of Parliament is now firmly established, Coke understood these terms as implying an inherent limitation on all legislation,and ruled in Dr. Bonham’s Case (1) that “the common law will control Acts of Parliament and sometimes adjudge them to be utterly void when they are against common right and reason.” Though this doctrine was later discarded in England as being “a warning (1) 8 Rep. 118 (a).

26 200 rather than an authority to be followed” [per Willes J. in Lee v. Dude and Torrington Ry. (1)] it gained ground m America, at first as a weapon in the hands of the Revolu- tionists with which to resist the laws of Parliament, and later as an instrument in the hands of the Judges for estab- lishing the supremacy of the judiciary [see Calder v. Bull (“‘)]. In the latter half of the 19th century, this doc- trine of a transcendental common law or natural justice was absorbed in the connotation of the phrase “due process of law” occurring in the Fifth and Fourteenth Amendments. By laying emphasis on the word” due,” interpreting “law” as the fundamental principles of natural justice and giving the words “liberty” and “property” their widest meaning, the Judges have made the due process clause into a general restriction on all legislative power. And when that power was threatened with prostration by the excesses of due process, the equally vague and expansive doctrine of “police power,” i.e., the power of Government to regulate private rights in public interest, was evolved to counteract such excesses. All this has been criticised as introducing great uncertainty in the state of the law in that country, for no one could be sure how due process of law would affect a particular enactment. A century after the phrase had been the subject of judicial interpretation one learned Judge observed in 1877 that it was incapable of precise definition and that its intent and application could only be ascer- tained by “the gradual process of inclusion and exclusion” [Davidson v. New Orleans (3)]and, as recently as 1948, another Judge referred to the difficulty of “giving defi- niteness to the vague contours of due process” and “of spinning judgment upon State action out of that gossamer concept:” Haley v. State of Ohio (4).

It is not a matter for surprise, therefore, that the Drafting Committee appointed by the Constituent Assembly of India recommended the substitution of the expression “except according to procedure (1) (1871) L.R. 6 C.P. 576, 582. (3) 96 U.S.

97.

[1798] USSC 3; (1798) 3 Dallas 386. (4) 332 U.S.

596.

201 established by law” taken from the Japanese Constitution, 1946, for the words “without due process of law” which occurred in the original draft, “as the former is more specific.” In their Report the Committee added that they have “attempted to make these rights (fundamental rights) and the. limitations to which they must necessarily be subject as definite as possible, since the Courts may have to pronounce upon them” (para. 5). In the face of all these considerations, it is difficult to accept the suggestion that “law” in. article 21 stands for the jus naturale of the civil law, and that the phrase “according to procedure established by law” is equivalent to due process of law in its procedural aspect, for that would have the effect of introducing into our Constitution those “subtle and elusive criteria” implied in that phrase which it was the deliberate purpose of the framers of our Constitution to avoid.

On the other hand, the interpretation suggested by the Attorney-General on behalf of the intervener that the ex- pression means nothing more than procedure prescribed by any law made by a competent legislature is hardly more accept- able. “Established” according to him, means prescribed, and if Parliament or the Legislature of a State enacted a proce- dure, however novel and ineffective for affording the ac- cused person a fair opportunity of defending himself, it would be sufficient for depriving a person of his life or personal liberty. He submitted that the Constituent Assem- bly definitely rejected the doctrine of judicial supremacy When it rejected the phrase “due process of law” and made the legislative will unchallengeable, provided only “some procedure” was laid down. The Indian Constitution having thus preferred the English doctrine of Parliamentary supremacy, the phrase “procedure established by law” must be construed in accordance with the English view of due process of law, that is to say, any procedure which Parliament may choose to prescribe. Learned counsel drew attention to the speeches made by several members of the Assembly on the floor of the House for explaining, as he put it, the “his- torical background.” A speech 202 made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord. The Court could only search for the objec- tive intent of the legislature primarily in the words used in the enactment, aided by such historical material as reports of statutory committees, preambles etc. I attach no importance, therefore, to the speeches made by some of the members of the Constituent Assembly in the course of the debate on article 15 (now article 21).

The main difficulty I feel in accepting the construction suggested by the Attorney-General is that it completely stultifies article 13 (2) and, indeed, the very conception of a fundamental right. It is of the essence of that con- ception that it is protected by the fundamental law of the Constitution against infringement by ordinary legislation.

It is not correct to say that the Constitution has adopted the doctrine of Parliamentary supremacy. So far, at any rate, as Part III is concerned, the Constitution, as I have already observed, has accepted the American view of funda- mental rights. The provisions of articles 13 and 32 make this reasonably clear. Could it then have been the inten- tion of the framers of the Constitution that the most impor- tant fundamental rights to life and personal liberty should be at the mercy of legislative majorities as, in effect, they would be if “established” were to mean merely “pre- scribed ?” In other words, as an American Judge said in a similar context, does the constitutional prohibition in article 13 (2) amount to no more than “You shall not take away life or personal freedom unless you choose to take it away,” which is mere verbiage. It is no sound answer to say that, if article 21 conferred no right immune from legisla- tive invasion, there would be no question of contravening article 13 (2). The argument seems, to my mind, to beg the question, for it assumes that the article affords no such immunity. It is said that article 21 affords no protection against competent legislative action in 203 the field of substantive criminal law, for there is no provision for judicial review, on the ground of reasonable- ness or otherwise, of such laws, as in the case of the rights enumerated in article 19. Even assuming it to be so the construction of the learned Attorney. General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the article was un- doubtedly designed to afford. It was argued that “law” in article 31 which provides that no person shall be deprived of his property “save by authority of law” must mean enacted law and that if a person’s property could be taken away by legislative action, his right to life and personal liberty need not enjoy any greater immunity. The analogy is mis- leading. Clause (2) of article 31 provides for payment of compensation and that right is justiciable except in the two cases mentioned in clauses (4) and (6) which are of a tran- sitory character. The constitutional safeguard of the right to property in the said article is, therefore, not so illu- sory or ineffective as clause (1) by itself might make it appear, even assuming that” law” there means ordinary legis- lation.

Much reliance was placed on the Irish case The King v.

The Military Governor of Hare Park Camp (1) where the Court held that the term “law” in article 6 of the Irish Constitu- tion of 1922 which provides that “the liberty of the person is inviolable and no person shall be deprived of his liberty except in accordance with law” meant a law enacted by the Parliament, and that therefore the Public Safety Act of 1924 did not contravene the Constitution. The Court followed The King v. Halliday(2) where the House of Lords by a majority held that the Defence of the Realm (Consolidation) Act, 1914, and the Regulations framed thereunder did not infringe upon the Habeas Corpus Acts and the Magna Carta “for the simple reason that the Act and the Orders become part of the law of the land.” But that was because, as Lord Dunedin pointed out “the British Constitution has entrusted to the two Houses of parliament subject to the assent (1) [19241 2 I.R. 104. (2) [1917] A.C.

260.

204 of the King, an absolute power untrammelled by any written instrument obedience to which may be compelled by some judicial body,” whereas the Irish Constitution restricted the legislative powers of the Irish Parliament by a formal declaration of funda mental rights and by providing for a judicial review of legislation in contravention of the Constitution (article 65). This radical distinction was overlooked.

The Attorney-General further submitted that, even on his interpretation, article 21 would be a protection against violation of the rights by the executive and by individuals, an d that would be sufficient justification for the article ranking as a fundamental safeguard. There is no substance in the suggestion. As pointed out in Eshugbayi Eleko v. Gov- ernment of Nigeria (Officer Administering) (1), the execu- tive could only act in pursuance of the powers given by law and no constitutional protection against such action is really needed. Even in monarchical Britain the struggle between prerogative and law has long since ended in favour of the latter. “In accordance with British jurisprudence” said Lord Atkin in the case cited above, “no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice.” As for protection against individuals, it is a misconception to think that constitutional safeguards are directed against individuals. They are as a rule directed against the State and its organs. Protection against violation of the rights by individuals must be sought in the ordinary law. It is therefore difficult to accept the suggestion that article 21 was designed to afford protection only against infringements by the executive or individuals. On the other hand,the insertion of a declaration of Fundamental Rights in the forefront of the Constitution, coupled with an express prohibition against legislative interference with these rights (article 13) and the provision of a constitutional sanction for the enforcement of such prohibition by means of a judicial review (article 32) is, in my (1) [1931] UKPC 37; [1931] A.C. 662.

205 opinion, a clear and emphatic indication that these rights are to be paramount to ordinary State-made laws.

After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem. In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word “established” which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. “Procedure estab- lished by law” may well be taken to mean what the Privy Council referred to in King Emperor v. Benoari Lal Sharma (1) as “the ordinary and well-established criminal proce- dure,” that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the coun- try. Their Lordships were referring to the distinction between trial by special Courts provided by an Ordinance of the Governor-General and trial by ordinary Courts under the Criminal Procedure Code. It can be no objection to this view that the Code prescribes no single and uniform proce- dure for all types of cases but provides varying procedures for different classes of cases. Certain basic principles emerge as the constant factors common to all those proce- dures, and they form the core of the procedure established by law. I realise that even on this view, the life and liberty of the individual will not be immune from legisla- tive interference, for a competent legislature may change the procedure so as to whittle down the protection if so minded. But, in the view I have indicated, it must not be a change ad hoc for any special purpose or occasion, but a change in the general law of procedure embodied in the Code.

So long as such a change is not effected, the protection under article 21 would be available. The different measures of constitutional protection which the fundamental right to life and personal liberty will enjoy under article 21 as interpreted in the three ways (1) [1945] F.C.R. 161,175.

206 referred to above will perhaps be best illustrated by a concrete example. Suppose that article 22 (1) was not there and Parliament passed an Act, as a temporary measure, taking away in certain cases the right of an accused person to be defended by a legal practitioner. According to the petition- er’s learned counsel the Act would be void as being contrary to the immutable principles of natural justice embodied in article 21, whereas on the construction contended for by the Attorney-General, the Act would be perfectly valid, while, on the view I have indicated above, the Act would be bad, but if the denial of such right of defence is made a normal feature of the ordinary law of criminal procedure by abro- gating section 340 (1)of the Code, article 21 would be powerless to protect against such legislative action.

But in a free democratic republic such a drastic change in the normal law of procedure, though theoretically possi- ble, would be difficult to bring about, and that practical difficulty will be the measure of the protection afforded by article 21.

It was said that the safeguards provided in clauses (1) and (2) of article 22 are more or less covered by the provisions of the Criminal Procedure’ Code, and this overlapping would have been avoided if article 21 were intended to bear the construction as indicated above. The argument overlooks that, while the provisions of the Code would be liable to alteration by competent legislative action, the safeguards in clauses (1)and (2) of article 22, being constitutional, could not be similarly dealt with: and this sufficiently explains why those safeguards find a place in the Constitution.

The only alternative to the construction I have indi- cated above, if a constitutional transgression is to be avoided, would be to interpret the reference to “law” as implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided for such amend- ment (article 368) that could modify or override a fundamen- tal right without contravening article 13 (2).

207 The question next arises as to how far the protection under article 21, such as it has been found to be, is avail- able to persons under preventive detention. The learned Attorney-General contended that article 21 did not apply to preventive detention at all, as article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention,and, provided only these provisions are conformed to, the validity of any law relat- ing to preventive detention could not be challenged. I am unable to agree with this view. The language of article 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons. If it was really the intention of the framers of the Constitution to exclude the application of article 21 to cases of preventive detention, nothing would have been easier than to add a reference to article 21 in clause (3) of article 22 which provides that clauses (1) and (2) of the latter shall not apply to any person who is arrested or detained under any law providing for preventive detention Nor is there anything in the language of clauses (4) to (7) of article 22 leading necessarily to the inference that article 21 is inapplicable to preventive detention. These clauses deal only with certain aspects of preventive deten- tion such as the duration of such detention, the constitu- tion of an advisory board for reviewing the order of deten- tion in certain cases, the communication of the grounds of detention to the person detained and the provision of an opportunity to him of making a representation against the order. It cannot be said that these provisions form an exhaustive code dealing with all matters relating to preven- tive detention and cover the entire area of protection which article 21, interpretedin the sense I have indicated above, would afford to the person detained. I am, therefore, of opinion that article 21 is applicable to preventive deten- tion as well.

I will now proceed to examine whether the impugned Act or any of its provisions under which the petitioner has been ordered to be detained, takes away any of the rights con- ferred by articles 21 and 22 or infringes the protection afforded thereby. The 208 outstanding fact to be borne in mind in this connection is that preventive detention has been given a constitutional status. This sinister-looking feature, so strangely out of place in a democratic constitution which invests personal liberty with the sacrosanctity of a fundamental right and so incompatible with the promises of its preamble is doubtless designed to prevent an abuse of freedom by anti-sOcial and subversive elements which might imperil the national welfare of the infant Republic. It is in this spirit that clauses (3) to (7) of article 22 should, in my opinion, be con- strued and harmonised as far as possible with article 21 so as not to diminish unnecessarily the protection afforded for the legitimate exercise of personal liberty. In the first place, as already stated, clause (3) of article 22 excludes a, person detained under any law providing for preventive detention from the benefit of the safeguards provided in clauses (1) and (2) No doubt clause (5) of the same article makes some amends for the deprivation of these safeguards in that it provides for the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded to him of making a representation against the order, but the important right to consult and to be defended by a legal practitioner of his choice is gone. Similarly, the prohibition against detention in custody beyond a period of 24 hours without the authority of a magistrate has also been taken away m cases of preventive detention. It was not disputed that, to the extent to which the express provisions of clauses (4) to (7) authorised the abrogation or abridgement of the safeguards provided under other articles or substitution of other safeguards in a modified form, those express provisions must rule. Of the four essentials of the due process on which Mr. Nambiar insisted, (which also form part of the ordinary and established procedure under the Criminal Procedure Code, though I cannot agree that they are immutable and beyond legislative change) the requirements of notice and an opportunity to establish his innocence must, as already stated, be taken to have 209 been provided for by clause (5)of article 22. As for an ascertainable standard of conduct to which it is possible to conform, article 22 makes no specific provision in cases of preventive detention, and if such a safeguard can be said to be implicit in the procedure established by law in the sense explained above in preventive detention cases, it could no doubt be invoked. This point will be considered presently in dealing with provisions of the impugned Act.

The only other essential requirement, and the most essen- tial of all, is an impartial tribunal capable of giving an unbiassed verdict. This, Mr. Nambiar submitted, was left unprovided for by article 22, the advisory board referred to in clause (4) (a) being, according to him, intended to deal solely with the question of duration of the detention, that is to say, whether or not there was sufficient cause for detaining the person concerned for more than three months, and not with judging whether the person detained was innocent. A tribunal which could give an unbiassed judg- ment on that issue was an essential part of the protection afforded by article21 in whichever way it may be interpret- ed, and reference was made in this connection to the preven- tive provisions of the Criminal Procedure Code (Ch. VIII).

The impugned Act, not having provided for such a tribunal contravened article 21 and was therefore void. It will be seen that the whole of this argument is based on the major premise that the advisory board mentioned in clause (4) (a) of article 22 is not a tribunal intended to deal with the issue of justification of detention. Is that view correct? It was argued that the words “sufficient cause for such detention” in sub-clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that this view was supported by the language of sub- clause (a) of clause (7) whereby Parliament is authorised 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 without the opinion of an advisory board. In other words, learned counsel submitted, 210 the combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law autho- rising detention for such period even without the opinion of an advisory board. Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose. I am unable to accept this view. I am inclined to think that the words “such detention” in sub-clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months. An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons connected with defence, should be detained. That must be a matter for the executive authorities, the Depart- ment of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point. All that an advisory board can reasonably be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and not arbitrary or mala fide. The -fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period. Before any such tribunal could send in its report a reasonable time must elapse, as the grounds have to be communicated to the person detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel. Each of these steps may, in the course Of official routine, take some time, and ‘three months’ period might well have been thought a reasonable period to allow before the board could be-required to submit its report.

211 Assuming, however, that the words “such detention” had reference to the period of detention, there is no apparent reason for confining the enquiry by the advisory board to the sole issue of duration beyond three months without reference to the question as to whether the detention was justified or not. Indeed, if is difficult to conceive how a tribunal could fairly judge whether a person should be detained for more than three months without at the same time considering whether there was sufficient cause for the detention at all. I am of opinion that the advisory board referred to in clause (4) is the machinery devised by the Constitution for reviewing orders for preventive detention in certain cases on a consideration of the representations made by the persons detained. This is the view on which Parliament has proceeded in enacting the impugned Act as will be seen from sections 9 and 10 thereof, and I think it is the correct view. It follows that the petitioner cannot claim to have his case judged by any other impartial tribu- nal by virtue of article 21 or otherwise.

Mr. Nambiar, however, objected that, on this view, a law could authorise preventive detention for three months with- out providing for review by any tribunal, and for even longer periods if Parliament passed an Act such as is con- templated in sub-clause (a) of clause (7). That may be so, but, however deplorable such a result may be from the point of view of the person detained, there could be no remedy if, on a proper construction of clauses (4) and (7), the Consti- tution is found to afford no higher protection for the personal liberty of the individual.

Turning next to the provisions of the impugned Act, whose constitutional validity was challenged, it will be necessary to consider only those provisions which affect the petitioner before us. In the first place, it was contended that section 3, which empowers the Central Government or the State Government to detain any person if it is “satisfied” that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to (among other 212 things) the security of the State or the maintenance of public order, cannot be said to comply with the procedure established by law, as the section prescribes no objective and ascertainable standard of conduct to which it will be possible to conform, but leaves it to the will and pleasure of the Government concerned to make an order of detention.

TIm argument proceeds on the assumption that the procedure established by law is equivalent to the due process of law.

I have already endeavoured to show that it is not Apart from this, the argument overlooks that for the purposes of preventive detention it would be difficult, if not impossi- ble to lay down objective rules of conduct failure to conform to which should lead to such detention. As tim very term implies, the detention in such cases is effected with a view to prevent the person concerned from acting prejudi- cially to certain objects which the legislation providing for such detention has in view. Nor would it be practicable to indicate or enumerate in advance what acts or classes of acts would be regarded as prejudicial. The responsibility for the security of the State and the maintenance of public order etc. having been laid on the executive Government it must naturally be left to that Government to exercise the power of preventive detention whenever they think the occa- sion demands it.

Section 12 came in for a good deal of criticism. That section, which governs the duration of thepetitioner’s detention reads as follows :– “Duration of detention in certain cases.–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 for- eign powers or the security of India; or (b) the security of a State of the maintenance of public order.

213 (2) The case of every person detained under a detention order to which the provisions of sub-section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Government, by such Govern- ment, and where the order was made by any officer specified in sub-section (2)of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as a Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be.” It was urged that this did not comply with the require- ments of clause (7) of article 22 as it merely repeated the “matters” or legislative topics mentioned in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule to the Constitution. What Parliament has to do under clause(7) of article 22 is 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 without obtaining the opinion of an advisory board. It was said that clause (4) (a) provided for ordinary cases of preventive detention Where such detention could not continue beyond three months without obtaining the opinion of an advisory board, whereas clause (7) (a) made provision for special cases of detention for more than three months with- out the safeguard of the advisory board’s opinion, for aggravated forms of prejudicial conduct. In other words, clause (4) (a) laid down the rule and clause (7) (a) enacted an exception. It was therefore necessary for Parliarnent to indicate to the detaining authority for its guidance the more aggravated forms of prejudicial activity, and mere mention of the subjects in respect of which Parliament is authorised under the legislative lists to make laws in respect of preventive detention could hardly afford any guidance to such authority and should not be regarded as sufficient compliance with the requirements of clause (7).

There is a two-fold fallacy in 214 this argument. In the first place, the suggested correla- tion between clause (4) (a) and clause (7) (a) as enacting a rule and an exception is, as a matter of construction, without foundation. Reading clauses (4) and (7) together it is reasonably clear that preventive detention could last longer in two cases: (1) where the opinion of an advisory board is obtained, subject however to a prescribed period [sub-clause (a)of clause (4)] and (2) where a person is detained under a law made by Parliament under sub-clauses (a) and (b) of clause (7) [sub-clause (b) of clause (4)].

These are two distinct and independent provisions. It is significant that sub-clause (b) of clause (4) is not worded as a proviso or an exception to sub-clause (a) of the same clause as it would have been if it was intended to operate as such. The attempt to correlate clause (4)(a)and clause (7) (a) as a rule and an exception respectively is opposed both to the language and the structure of those clauses.

‘Secondly, the argument loses sight of the fact that clause (7) deals with preventive detention which is a purely precautionary measure which “must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof” [ per Lord Atkinson in Rex v. Halliday (1) ]. The remarks I have’ already made with reference to the absence of any objective rules of conduct in section 3 of the impugned Act apply also to this criticism of section

12. It would be difficult, if not impracticable, to mention the variouscircumstances, or to enumerate the various class- es of cases exhaustively in which a person should be de- tained for more than three months for preventive purposes, except in broad outline. Suppose a person belongs to. an organization pledged to violent and subversive activity as its policy. Beyond his membership of theparty the person might have done nothing until he1 was arrested and detained.

But if released he might indulge in anything from the mild- est form of prejudicial activity, like sticking an objec- tionable handbill on a hoarding, to the most outrageous acts of sabotage.

(1) [1917] UKHL 1; L.R. 1917 A.C. 260, 275.

215 How could the insertion in section 12 of a long series of categories of aggravated forms of prejudicial activities, or the enumeration of the various circumstances in which such activities are likely to be indulged in, be of any assist- ance to the detaining authority in determining whether the person concerned should be detained for three months or for a longer period ? All that would be necessary and suffi- cient for him to know for coming to a decision on the point is that the person is a member of such an organisation and will probably engage in subversive activities prejudicial to the security of the State or the maintenance of public order or, in other words, he belongs to class (b) in section 12.

While enumeration and classification in detail would un- doubtedly help in grading punishment for offences committed, they would not be of much use in fixing the duration of preventive detention. Sufficient guidance in such cases could be given by broadly indicating the general nature of the prejudicial activity which a person is likely to indulge in, and that in effect is what Parliament has done in sec- tion 12. Reference was made in this connection to Rule 34 of the Defence of India Rules framed under the Defence of India Act, 1939, where “prejudicial act” is defined by enumeration. But it was also for the purpose of prohibiting such acts [ Rule 38 sub-rule (1) ] and making them offences (sub-rule 5). And even there, the definition had to end in a residuary clause sweeping in acts likely “to prejudice the efficient prosecution of the war, the defence of British India or, the public safety or interest.” In Lists I and III of the Seventh Schedule to the Constitution six topics are mentioned in respect of which Parliament could make laws providing for preventive detention, and section 12 of the impugned Act mentions five of them as being the classes of cases or the circumstances in which longer detention is authorised. I fail to see why this could not be regarded as a broad classification of cases or a broad description of circumstances where Parliament considers longer detention to be justifiable. A class can well be designated with refer- ence to the end which one desires to secure, and the matters referred to as classes (a) 216 and (b) of sub-section (1) of section 12 being clearly the objects which Parliament desired to secure by enacting the section, it seems to me that the classification with refer- ence to such general aims does not contravene article 22 (7).

It was argued that Parliament did not, in enacting section 12, perform its duty of prescribing both the circumstances and the class or classes of cases where detention without obtaining the advisory board’s opinion could be for a period longer than three months. The use of the disjunctive “or” between the word “circumstances” and the words “class or classes of cases” showed, it was said, that Parliament proceeded on the view that it need not prescribe both. This was in contravention of article 22 (7) which used the con- junctive “and” between those words. There is no substance- in this objection. As I read article 22 (7) it means that Parliament may prescribe either the circumstances or the classes of cases or both, and in enacting section 12 Parliament evidently regarded the matters mentioned in clause (a) and (b) of sub-section (1) as sufficiently indic- ative both of the Circumstances under which and the classes in which a person could be detained for the longer period.

To say, for instance, that persons who are likely to act prejudicially to the defence of India may be detained beyond three months is at once to “prescribe a class of persons in which and the circumstances under which” a person may be detained for the longer period. In other words, the classi- fication itself may be such as to amount to a sufficient description of the circumstances for purposes of clause (7).

The circumstances which would justify precautionary deten- tion beyond three months without recourse to an advisory board must be far too numerous for anything approaching an exhaustive enumeration, and it can, in my judgment, be no objection to the validity of section 12 that no circum- stances are mentioned apart from the matters referred to in clauses (a) and (b) of sub-section (1). It would indeed be singular for the Court to strike down a parliamentary enact- ment because in its opinion a 217 certain classification therein made is imperfect or the mention of certain circumstances is unspecific or inade- quate.

Lastly, Mr. Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained and of the representa- tion made by him against the order of detention, and debars the Court from allowing such disclosure to be made except for purposes of a prosecution punishable under sub-section (2) which makes it an offence for any person to disclose or publish such grounds or representation without the previous authorisation of the Central Government or the State Government as the case may be. The petitioner com- plains that this provision nullifies in effect the rights conferred upon him under clause (5) of article 22 which entitles him to have the grounds of his detention communi- cated to him and to make a representation against the order.

If the grounds are too vague to enable him to make any such representation, or if they are altogether irrelevant to the object of his detention, or are such as to show that his detention is not bona fide, he has the further right of moving this Court and this remedy is also guaranteed to him under article 32. These rights and remedies, the petitioner submits, cannot be effectively excercised, if he is prevent- ed on pain of prosecution, from disclosing the grounds to the Court. There is great force in this contention. All that the Attorney-General could say in answer was that if the other provisions of the Act were held to be valid, it would not be open to the Court to examine the sufficiency of the grounds on which the executive authority was “satisfied” that detention was necessary, as laid down in Machindar Shivaji Mahar v. The King (1), and so the petitioner could not complain of any infringement of his rights by reason of section 14 which enacted only a rule of evidence. The argument overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had (1) [1949] F.C.R. 827.

218 in view, such as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide. An examina- tion of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22 (5) and article 32 is thereby rendered nugatory. It follows that section 14 contravenes the provisions of article 22 (5) and article 32 in so far as it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or the repre- sentation made by him against the order of detention, and prevents the Court from examining them for the purposes aforesaid, and to that extent it must be held under article 13 (2) to be void. This however, does not affect the rest of the Act which is severable. As the petitioner did not disclose the grounds of his detention pending our decision on this point he will now be free to seek his remedy, if so advised, on the basis of those grounds.

In the result, the application fails and is dismissed.

MAHAJAN J.–The people of India having solemnly resolved to constitute India into a Sovereign Democratic Republic on the 26th day of November 1949 gave to themselves a Constitution which came into force on the 26th January 1950. This is the first case in which this Court has been called upon to determine how far the Constitution has secured personal liberty to the citizens of this country.

A.K. Gopalan, the petitioner, who was already under the custody of the Superintendent, Central Jail, Cuddalore, was served with an order of detention under section 3 (1) of the Preventive Detention Act, 1950 (Act IV of 1950) on the 27th February 1950. It was said in the order that the Governor of Madras was satisfied that it was necessary to make the order with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order. On 20th March 1950 a petition was presented to this Court under article 32 219 of the Constitution praying for the issue of a writ of habeas corpus directing the State of Madras to produce him before the Court and to set him at liberty. A writ was accordingly issued. The return to the writ is that the detention is legal under Act IV of 1950, enacted by Parlia- ment. The petitioner contends that the Act abridges and infringes certain provisions of Part III of the Constitution and is thus outside the constitutional limits of the legis- lature and therefore void and unenforceable.

The matter is one of great importance both be-cause the legislative power expressly conferred by the 7th Schedule has been impugned and because the liberty of the citizen is seriously affected. The decision of the question whether Act IV of 1950 takes away or abridges the rights conferred by Part III of the Constitution depends on a consideration of two points:

(1) In what measure has the Constitution secured person- al liberty to a citizen of India, and.

(2) has the impugned legislation in any way taken away or abridged the rights so secured and if so, to what extent ? Act IV of 1950 provides for preventive detention in certain cases and it has been enacted as a temporary meas- ure. It will cease to have effect on 1st April 1951. It empowers the Central Government and the State Governments to make an order directing a person to be detained with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India. It also gives power to detain a person who acts in any manner prejudicial to the security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community. It came into force on 26th February 1950 and was enacted by virtue of the powers conferred on Parliament by article 22 clause (7) of Part III of the Constitution read with the entries in the 7th Schedule. There can be no doubt that the legislative will expressed herein 220 would be enforceable unless the legislature has failed to keep within its constitutional limits. It is quite obvious that the Court cannot declare a statute unconstitutional and void simply on the ground of unjust and oppressive provi- sions or because it is supposed to violate natural, social or political rights of citizens unless it it can be shown that such injustice is prohibited or such rights are guaranteed or protected by the Constitution. It may also be observed that an Act cannot be declared void because in the opinion of the Court it is opposed to the spirit supposed to pervade the Constitution but not so expressed in words. It is difficult on any general principles to limit the omnipo- tence of the sovereign legislative power by judicial inter- position except in so far as the express words of a written Constitution give that authority. Article 13 (2) of our Constitution gives such an authority and to the extent stated therein. It says 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.

Preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world. It was stated at the Bar that no such law was in force in the United States of America. In England for the first time during the first world war certain regulations framed under the Defence of the Realm Act provided for preventive detention at the satisfaction of the Home Secretary as a war measure and they ceased to have effect at the conclusion of hostilities. The same thing happened during thesecond world war. Similar regulations were introduced during the period of the war in India under the Defence of India Act. The Government of India Act, 1935, conferred authority on the Central and Provincial Legislatures to enact laws on this subject for the first time and since then laws on this subject have taken firm root here and have become a permanent part of the statute book of this country. Curiously enough, this subject has found place in the Constitution in the.

221 chapter on Fundamental Rights. Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule mention the scope of legislative power of Parliament in respect of this topic. The jurisdiction, however, to enact these laws is subject to the provisions of Part III of the Constitu- tion. Article 22 in this Part provides :– “(1 ) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) 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.

(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 suffi- cient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period pre- scribed by any law made by Parliament under sub-clause (b) 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 (b) 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, commu- nicate 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 clause (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 preven- tive 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 provid- ing 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 question of the constitutional validity of the impugned statute has to be approached with great caution in view of these provisions of the Constitution and has to be considered with patient attention. The benefit of reasona- ble doubt has to be resolved in favour of legislative ac- tion, though such a presumption is not conclusive- It seems that the subject of preventive detention became the particu- lar concern of the Constitution because of its intimate connection with deprivation of personal liberty to protect which certain provisions were introduced in the Chapter on Fundamental Rights and because of the conditions prevailing in the newly born Republic. Preventive detention means a complete negation of freedom of movement and of personal liberty and is incompatible with both those subjects and yet it is placed in the same compartment with them in Part III of the Constitution.

223 Though the Constitution has recognized the necessity of laws as to preventive detention it has also provided certain safeguards to mitigate their harshness by placing fetters on legislative power conferred on this subject.

These are- (1) That no law can provide for detention for a period of more than three months unless the sufficiency for the cause of the detention is investigated by an advisory board within the said period of three months. This provision limits legislative power in the matter of duration of the period of detention. A law of preventive detention would be void if it permits detention for a longer period than three months without the intervention of an advisory board.

(2) That a State law cannot authorize detention beyond the maximum period prescribed by Parliament under the powers given to it in clause (7). This is a limitation on the legislative power of the State legislature. They cannot make a law authorizing preventive detention for a longer period than that fixed by Parliament.

(3) That Parliament also cannot make a law authorizing detention for a period beyond three months without the intervention of an advisory board unless the law conforms to the conditions laid down in clause (7) of article 22.

Provision also has been made to enable Parliament to make laws for procedure to be followed by advisory boards. This is a safeguard against any arbitrary form of procedure that may otherwise find place in State laws.

Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of article 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of his detention and has also the right to make a representation protesting against an order of preventive detention. This right has been guaranteed independently of the duration of the period of detention and irrespective of the existence or non-existence of an advisory board. No machinery, however, has been provided or expressly 29 224 mentioned for dealing with this representation. It seems to me that when a constitutional right has been conferred as a necessary consequence, a constitutional remedy for obtaining redress in case of infringement of the right must be pre- sumed to have been contemplated and it could not have been intended that the right was merely illusory and that a representation made may well find place in cold storage.

Consideration of the representation made by virtue of clause (5) by an unbiassed authority is, m my opinion, a necessary consequence of the guaranteed right contained herein. The right has been conferred to enable a detained person to establish his innocence and to secure justice, and no jus- tice can be said to be secured unless the representation is considered by some impartial person. The interpretation that I am inclined to place on clause (5) of article 22 is justi- fied by the solemn words of the declaration contained in the Preamble to the Constitution. It is this declaration that makes our Constitution sublime and it is the guarantees mentioned in the chapter on Fundamental Rights that make it one of the greatest charters of liberty and of which the people, of this country ‘may well be proud. This charter has not been forced out of unwilling hands of a sovereign like the Magna Carta but it has been given to themselves by the people of the country through their Constituent Assem- bly. Any interpretation of the provisions of Part III of the Constitution without reference to this solemn declara- tion is apt to lead one into error. If the right of repre- sentation given to a detained person by clause (5) of arti- cle 22 is a guaranteed right and has been given for the purpose of securing justice, then it follows that no justice can be held secured to him unless an unbiassed person considers the merits of the representation and gives his opinion on the guilt or the innocence of the persons detained. In my view, the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation with an unbiassed mind and will render justice. That would in a way make the prosecu- tor a judge in the case and such a procedure is repugnant.

to all notions 225 of justice. The Constitution has further curtailed the rights given in clause (5) by providing in clause (6) a privilege on the detaining authority of witholding facts which the said authority considers not in public interests to disclose. This privilege has been conferred for the security of the State and possibly for the security of the Constitution itself, but in view of these stringent provi- sions no additional clogs can be put on the proper consider- ation of the representation of the detained person by pre- suming that the detaining authority itself will properly consider the representation. It has also to be remembered in this context that a person-subjected to the law of pre- ventive detention has been deprived of the rights conferred on persons who become subject to the law of punitive deten- tion [vide clauses (1) and (2) of article 22]. He has been denied the right to consult a lawyer or be defended by him and he can be kept in detention without being produced before a magistrate.

Having examined the provisions of article 22, I now proceed to consider the first question that was canvassed before us by the learned Attorney-General, i.e., that arti- cle 22 of the Constitution read with the entries in the 7th Schedule was a complete Code on the subject of preventive detention, and that being so, the other articles of Part III could not be invoked in the consideration of the validity of the impugne’d statute. It was conceded by the learned coun- sel for the petitioner that to the extent that express provisions exist in article 22 on the topic of preventive detention those provisions would prevail and could not be controlled by the other provisions of Part III. It was, however, urged that on matters on which this article had made no special provision on this topic the other provisions of Part III of the Constitution had application, namely, articles 10 and 21 and to that extent laws made on this subject were justiciable. In order to draw the inference that the framers of the Constitution intended the provisions as regards preventive detention in article 22 to be self- contained a clear indication of such an intention has to be gathered. If the provisions embodied in this article have dealt 226 with all the principal questions that are likely to arise in matters of procedure or on questions of the reasonableness of the period of detention, the inference of such an indica- tion would be irresistible. Ordinarily when a subject is expressly dealt with in a constitution in some detail, it has to be assumed that the intention was to exclude the application of the general provisions contained therein elsewhere. Express mention of one thing is an exclusion of the other. Expressio unius est exclusio alterius. I am satisfied on a review of the whole scheme of the Constitu- tion that the intention was to make article 22 self-con- tained in respect of the laws on the subject of preventive detention. It was contended that all the articles in the Constitution should be read in an harmonious manner and one article should not be read as standing by itself and as having no connection with the other articles in the same part. It was said that they were all supplementary to one another. In this connection it was argued that a law made under article 22 would not be valid unless it was in accord with the provisions of article 21 of the Constitution. This article provides that no person shall be deprived of life or liberty’ except according to procedure established by law.

It was contended that in substance the article laid down that no person will be deprived of life or liberty without having been given a fair trial or a fair hearing and that unless a law of preventive detention provided such a hearing that law would be in contravention of this article and thus void. Conceding for the sake of argument (but without expressing any opinion on it ) that this contention of the learned counsel is correct, the question arises whether there is anything in article 22 which negatives the application of article 21 as above construed to a law on preventive detention. In my opinion, sub-clause (5) of article 22 read with clauses (1) and (2) leads to the inference that the contention raised by the learned counsel is unsound. Clause (5), as already stated, provides that notice has to be given to a detenu of the grounds of his detention. It also provides a limited hearing inasmuch as it gives him an opportunity to 227 establish his innocence. As, in my opinion, the considera- tion of a representation made by a detained person by an unbiassed authority is implicit in clause (5) it gives to the detained person all that he is entitled to under the principles of natural justice. The right to consult and to be represented by a counsel of his own choice has been denied in express terms to such a person by the Constitu- tion. He is also denied an opportunity of appearing before a magistrate. When the Constitution has taken away certain rights that ordinarily will be possessed by a detained person and in substitution thereof certain other rights have been conferred on him even in the matter of procedure, the inference is clear that the intention was to deprive such a person of the right of an elaborate procedure usually pro- vided for in judicial proceedings. Clause (6) of article 22 very strongly supports this conclusion. There would have been no point in laying down such detailed rules of proce- dure in respect of a law of preventive detention if the intention was that such a law would be subject to the provi- sions of article 21 of the Constitution. In its ultimate analysis the argument of the learned counsel for the peti- tioner resolves itself to this: that the impugned statute does not provide for an impartial tribunal for a considera- tion of the representation of the detained person and to this extent it contravenes article 21 of the Constitution.

As discussed above, in ray opinion, such a provision is implicit within article 22 itself and that being so, the application of article 21 to a law made under article 22 is excluded.

It was next contended that a law of preventive detention encroaches on the right of freedom of movement within the territory of India guaranteed to a citizen under article 19 (1) (d) and that being so, by reason of the provisions of sub-clause (5) of article 19 it was justiciable on the ground of reasonableness. It is true, as already pointed out, that a law of preventive detention is wholly incompati- ble with the right of freedom of movement of a citizen.

Preventive detention in substance is a negation of the freedom of locomotion guaranteed under article 19 (1) (d) but it cannot be said that it merely restricts it. Be that as it may, the 228 question for consideration is whether it was intended that article 19 would govern a law made under the provisions of article 22. Article 19 (5) is a saving and an enabling provision. It empowers Parliament to make a law imposing reasonable restriction on the right of freedom of movement while article 22 (7) is auother enabling provision empower- ing Parliament to make a law on the subject of preventive detention in certain circumstances. If a law conforms to the conditions laid down in ‘article 22 (7), it would be a good law and it could not have been intended that that law validly made should also conform itself to the provisions of article 19 (5). One enabling provision cannot be considered as a safeguard against another enabling provision. Article 13 (2) has absolutely no application in such a situation.

If the intention of the constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have trou- bled itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law could be made and by mentioning the procedure that the law dealing with that subject had to provide. Some of the provisions of article 22 would then have been redun- dant, for instance, the provision that no detention can last longer than three months without the necessity of such detention being examined by an advisory board. This provi- sion negatives the idea that the deprivation of liberty for a period of three months without the consultation of the advisory board would be justiciable on the ground of reason- ableness. Again article 22 has provided a safeguard that if an advisory board has to be dispensed with, it can only be so dispensed with under a law made by Parliament and that Parliament also in enacting such a law has to conform to certain conditions. This provision would have’ been unnec- essary in article 22 if a law on this subject was justicia- ble. In sub-clause (b) of clause (7) of article 22 provision has been made enabling Parliament to fix the maximum period for which a person can be detained under a law on the sub- ject of preventive detention. Under 229 this express provision it is open to Parliament to fix any period, say, even a period of five to ten years as the maximum period of detention of a person. Can it be said that in view of this express provision of the Constitution such a law was intended to be justiciable by reason of article 19 (5) ? Duration of detention is the principal matter in preventive detention laws which possibly could be examined on the touchstone of reasonableness under article 19 (5), but this has been expressly excluded by express provisions in article 22. In my judgment, therefore, an examination of the provisions of article 22 clearly suggests that the intention was to make it self-contained as regards the law of preventive detention and that the validity of a law on the subject of preventive detention cannot be exam- ined or controlled either by the provisions of article 21 or by the provisions of article 19 (5) because article 13 (2) has no application to such a situation and article 22 is not subject to the provisions of these two articles. The Consti- tution in article 22 has gone to the extent of even provid- ing that Parliament may by law lay down the procedure to be followed by an advisory board. On all important points that could arise in connection with the subject of preventive detention provision has been made in article 22 and that being so, the only correct approach in examining the validi- ty of a law on the subject of preventive detention is by considering whether the law made satisfied the requirements of article 22 or in any way abridges or contravenes them and if the answer is in the affirmative, then the law will be valid, but if the answer is in the negative, the law would be void.

In expressing the view that article 22 is in a sense self-contained on the law of preventive detention I should not however be understood as laying down that the framers of the article in any way overlooked the safeguards laid down in article 21. Article 21, in my opinion. lays down sub- stantive law as giving protection to life and liberty inas- much as it says that they cannot be deprived except accord- ing to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty 230 as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such depriva- tion. This article gives complete’ immunity against the exercise of despotic power by the executive. It further gives immunity against invalid laws which contravene the Constitution. It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty. It negatives the idea of fantastic, arbitrary and oppressive forms of proceedings. The principles there- fore underlying article 21 have been kept in view in draft- ing article 22. A law properly made under article 22 and which is valid in all respects under that article and lays down substantive as well as adjective law on this subject would fully satisfy the requirements of article 21, and that being so, there is no conflict between these two articles.

The next question that arises for decision is whether there is anything in Act IV of 1950 which offends against the provisions of article 22 of Part III of the Constitu- tion. The learned counsel for the petitioner contended that section 3 of the Act was bad inasmuch as it made “satisfaction of the Government” as the criterion for de- taining a person. It was said that as section 3 laid down no objective rule of conduct for a person and as people were not told as to what behaviour was expected of them, the result was that it could not be known what acts a person was expected to avoid and what conduct on his part was prejudi- cial to the security of the State or the maintenance of’ public order; in other words, it was argued that section 3 left the determination of the prejudicial act of a person to the arbitrary judgment of the Government and that even the officer who was to administer this law had been furnished no guide and no standard of conduct in arriving at his own satisfaction whether the conduct was prejudicial to the security of the State etc. This criticism of the learned counsel, in my opinion, is not valid, It is no doubt true that a detention order depends on the satisfac- tion of the’ 231 Government but this provision is in accordance with article 22 of the Constitution which to my mind contemplates detention on the satisfaction of the executive authority.

By its very nature the subject is such that it implies detention on the judgment of the authority entrusted with the making of the order. The whole intent and purpose of the law of preventive detention would be defeated if satis- faction of the authority concerned was subject to such an objective standard and was also subject to conditions as to legal proof and procedure. In the 7th Schedule jurisdiction to make the law on this subject has been given for reasons connected with defence etc. and the maintenance of public order. These are subjects which concern the life and the very existence of the State. Every citizen is presumed to know what behaviour is prejudicial to the life of the State or to its existence as an ordered State. Considering that the State is presumed to have a government that conducts itself in a reasonable way and also presuming that its officers usually will be reasonable men, it cannot be said that in making “satisfaction of the government” as the standard for judging prejudicial acts of persons who are subject to the law of preventive detention section 3 in any way contravenes article 22 of the constitution.

Section 7 of the impugned Act gives full effect to the provisions of article 22 sub clause (5) and enacts that representation has to be made to the Central or State Gov- ernment as the case may be. It was impeached on the ground that no machinery has been provided herein to consider and adjudicate on the merits of the representation. To this extent, as already indicated, the law is defective. In the absence of a machinery for the investigation of the conten- tions raised in the representation it may be open to the detenu to move this Court under article 32 for a proper relief. It is, however, unnecessary to express any opin- ion as to the precise remedy open to a detained person in this respect. The absence of a provision of this nature in the statute however would not make the law wholly void.

Section 9 of the Act makes reference 30 232 to the advisory board obligatory in cases falling under sub-clause (iii) of clause (a) or clause (b) of sub-section (1) of section a within six weeks of the order. The proce- dure to be followed by the advisory board is laid down in section 10. Parliament has been authorized to lay down such a procedure to be followed by an advisory board in sub- clause (c) of clause (7). It was contended that the law had not provided a personal hearing to the detenu before an advisory board, nor had it given him a right to lead evi- dence to establish his innocence. In my opinion, this criticism is not sound and does not in any way invalidate the law. The advisory board has been given the power to call for such information as it requires even from the person detained. It has also been empowered to examine the materi- al placed before it in the light of the facts and arguments contained in the representation. The opportunity afforded is not as full as a person gets under normal judicial proce- dure but when the Constitution itself contemplates a special procedure being prescribed for preventive detention cases, then the validity of the law on that subject cannot be impugned on the grounds contended for.

Section 11 of the Act was also impugned on the ground that it offended against the Constitution inasmuch as it provided for preventive detention for an indefinite period.

This section in my opinion has to be read in the background of the provision in sub-clause (3) of section 1 of the Act which says that the Act will cease to have effect on 1st April, 1951. Besides, the words “for such period as it thinks fit” do not in any way offend against the provisions of article 22 wherein Parliament has been given the power to make a law fixing the maximum period for preventive deten- tion. It has to be noted that Parliament has fixed a period of one year as the maximum period for the duration of detention where detention has to be without reference to an advisory board. In my opinion, there is nothing in section 11 which is outside the constitutional limits of the powers of the supreme legislature.

233 It is section 12 of the Act which was assailed by the learned counsel for the petitioner rather vehemently. This section is of a very controversial character. It has been enacted on the authority of clause (7) of article 22 and runs thus :– “(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 exceed- ing 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 for- eign powers or the security of India; or (b) the security of a State or the maintenance of public order.

(2) The case of every person detained under a detention order to which the provisions of sub-section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Government, by such Govern- ment, and where the order was made by any officer specified in sub-section (2) of section a, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as, a Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be.” The section purports to comply with the conditions laid down in clause (7) of article 22. It was, however, argued that in substance and reality it has failed to comply with any of the conditions laid down therein; that it neither mentions the circumstances under which nor the classes of cases in which preventive detention without recourse to the machinery of an advisory board could be permitted. The crucial question for consideration is whether section 12 mentions any circumstances under which or defined the class- es of cases in which authority was conferred by clause (7) 234 to dispense with an advisory board. So far as I have been able to gather from opinions of text-book writers on the subject of classification, the rule seems clear that in making classification of cases there has to be some rela- tionship to the classification to the objects sought to be accomplished. The question for consideration therefore is what object was sought to be accomplished when the Constitu- tion included clause (7) in article 22. It seems clear that the real purpose of clause (7) was to provide for a contin- gency where compulsory requirement of an advisory board may defeat the object of the law of preventive detention. In my opinion, it was incorporated in the Constitution to meet abnormal and exceptional cases, the cases being of a kind where an advisory board could not be taken into confidence.

The authority to make such drastic legislation was entrusted to ‘the supreme legislature but with the further safeguard that it can only enact a law of such a drastic nature provided it prescribed the circumstances under which such power had to be used or in the alternative it prescribed the classes of cases or stated a determinable group of cases in which this could be done. The intention was to lay down some objective standard for the guidance of the detaining authority on the basis of which without consultation of an advisory board detention could be ordered beyond the period of three months. In this connection it has to be remembered that the Constitution must have thought of really some abnormal situation and of some dangerous groups of persons when it found it necessary to dispense with a tribu- nal like an advisory board which functions in camera and which is not bound even to give a personal hearing to the detenu and whose proceedings are privileged. The law on the subject of preventive detention in order to avoid even such an innocuous institution could only be justified on the basis of peculiar circumstances and peculiar situations which had to be objectively laid down and that was what in my opinion was intended by clause (7). If the peculiarity lies in a situation outside ‘the control or view of a de- tained person, then it may be said that the description of such a situation would 235 amount to a prescription of the circumstances justifying the detention for a longer period than three months by a law without the intervention of an advisory board’. If, however, the abnormality relates to the conduct and character of the activities of a certain determinable group of persons, then that would amount to a class of cases which was contemplated to be dealt with under clause (7). In such cases alone arbitrary detention could be held justifiable by law beyond a period of three months.

It was argued by the learned counsel for the petitioner that the phrase “circumstances under which, and the classes of cases in which” used in clause (7) had to be construed in a cumulative sense; on the other hand, the learned Attorney-General contended that the word “and” had been used in this clause in the same sense as “or.” He further argued that even if the word “and” is not given that meaning the true construction of the phrase was that Parliament could prescribe either the circumstances or the classes of cases for making a law on the subject of preventive detention authorizing detention for a longer period than three months without the machinery of an advisory board. In Full Bench Reference No. 1 of 1950, Das Gupta J. of the Calcutta High Court held that the intention of the legislature in enacting the clause was that the law of preventive detention author- izing detention for a longer period than three months with- out the intervention of an advisory board had to fulfil both the requirements laid down in clause (7) and not only one of the requirements in the alternative. The same view has been expressed by my brother Sir Fazl Ali. I share this view with him. I would, however, like to consider this matter from a different aspect on the assumption that the contention raised by the learned Attorney-General is right.

Dealing first with the question whether section 12 mentions any circumstances, so far as I have been able to see, it does not prescribe any circumstances unless it can be said that the prejudicial acts for reasons connected with the security of State, maintenance of public order, etc. are both the circumstances as well as 236 the classes of cases. In my opinion, this line of approach cannot be held to be correct in the construction of clause (7) of article 22. I am inclined to agree with the learned Attorney-General that the phrase “circumstances under which” means some situation extraneous to the detenu’s own acts, in other words, it means some happening in the country with which the detenu is not concerned, such as a situation of tense communal feelings, an apprehended internal rebellion or disorder, the crisis of an impending war or apprehended war, etc. In such a situation the machinery of an advisory board could be dispensed with because it may become cumber- some or it may hamper the exercise of necessary powers. In this view of the matter I have no hesitation in holding that no circumstances have been stated in section 12, though the section ostensibly says so. If it was permissible to con- jecture, it seems that the draftsman of section 12′ repeated the words of clause’ (7) of article 22 without an applica- tion of his mind to the meaning of those words and as the legislation was passed in haste to meet an emergent situa- tion, it suffers from the defects which all hasty legisla- tion suffer from.

I now proceed to consider whether section 12 has classi- fied the cases in which detention for a longer period beyond three months could be suffered by a citizen without the benefit of the machinery of an advisory board. The section has placed five subjects out of the legislative list within its ambit and these are described as the classes of cases.

The question is whether it can be said that a mere selection of all or any of the categories of the subjects for reasons connected with which a law of preventive detention could be’ made under the 7th Schedule amounts to a classification of cases as contemplated in clause (7) of article 22. Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule lay down the ambit of legislative power of Parliament on the subject of preventive detention on the following six subjects :– (1) Defence of India, (2) Foreign Affairs, (a) Security of India, (4) Security of the State, (5) Mainten- 237 ance of public order, (6) Maintenance of supplies and serv- ices essential to the community.

Clause (4) of article 22 enjoins in respect of all the six subjects that no law can provide for preventive deten- tion for a longer period than three months without reference to an advisory board. Clause (7) gives permission to make a law for dispensing with an advisory board by a prescription of the circumstances and by a prescription of the classes of cases in which such a dispensation can be made. The legis- lative authority under clauses (4) and (7)in my opinion, extends to all these six subjects. The normal procedure to be followed when detention is intended to be beyond a period of three months in respect of the six subjects is provided in sub-clause (4) The extraordinary and unusual procedure was intended, to be adopted in certain abnormal cases for which provision could be made by a parliamentary statute under clause (7). It seems to me, however, that section- 12 of Act IV of 1950 has reversed this process quite contrary to the intention of the Constitution. By this section Act IV of 1950 has dispensed with the advisory board in five out of the six subjects above mentioned and the compulsory procedure of an advisory board laid down in clause (4) of article 22 has been relegated to one out of these six sub- jects. This has been achieved by giving a construction to the phrase “circumstances under which and the classes of cases in which” so as to make it co-extensive and cotermi- nous with the “subjects of legislation.” In my opinion, this construction of clause (7) is in contravention of the clear provisions of article 22, and makes clause (4) of article -9,2 to all intents and purposes nugatory. Such a construction of the clause would amount to the Constitution saying in one breath that a law of preventive detention cannot provide for detention for a longer period than three months without reference to an advisory board and at the same breath and moment saying that Parliament, if it so chooses, can do so in respect of all or any of the subjects mentioned in the legislative field. If that was so, it would have been wholly unnecessary to provide such a safe- guard in the Constitution on a matter 238 which very seriously affects personal liberty. On the other hand, it would be a reasonable construction of the clause to hold that the Constitution authorized Parliament that in serious classes of cases or in cases of those groups of persons who are incorrigible or whose activities are secret the procedure of an advisory board may well be dispensed with, that being necessary in the interests of the State. On the other construction as adopted by the framers of section 12, the Constitution need not have troubled itself by con- ferring an authority on Parliament for making such a law.

Moreover, if that was the intention, it would have in very clear words indicated this by drafting article 22 clause (4) thus:

“Unless otherwise provided by Parliament no law provid- ing for preventive detention shall authorize detention for a longer period than three months unless an Advisory Board has investigated the sufficiency of the cause of such detention.” The words “Unless otherwise provided for by Parliament” would have been in accord with the construction which the framers of section 12 have placed on article 22 clause (7).

I am further of the opinion that the construction placed by the learned Attorney-General on clause (7) of article 22 and adopted by the framers of Act IV of 1950 creates a very anomalous situation. The matter may be examined from the point of view of the law of preventive detention for reasons connected with supplies and services essential to the life of the community. This subject has been put under section 9 in Act IV of 1950. Suppose a tense situation arises and there is a danger of the railway system being sabotaged and it becomes necessary to pass detention orders against cer- tain persons. According to Act IV of 1950 in such a serious state of affairs the procedure of an advisory board is compulsory, while on the other hand, if there is an appre- hension of disturbance of public order by reason of a wrong decision of an umpire at a cricket match or on account of conduct of persons celebrating the festival of Holi, then detention beyond three 239 months can be ordered without reference to an advisory board. Could such an anomalous result be in the contempla- tion of the framers of the Constitution ? The construction that I am inclined to place on the section is in accord with the scheme of the law of punitive detention. Hurt is an offence under the Indian Penal Code and this is one of the subjects of punitive detention. The cases on the subject have been classified in different groups, namely, simple hurt, grievous hurt, grievous hurt with dangerous weapons, grievous hurt to extort a confession, grievous hurt to restrain a public officer from doing his duty, grievous hurt by a rash act, and grievous hurt on provocation. Even simple hurt has been classified in different categories. The sub- ject of assault has also been similarly dealt with. Sections 352 to 356 deal with cases classified according to the gravity of the offence, i.e., cases of simple assault, assault on a public servant, assault on women, assault in attempt to’commit theft, assault for wrongfully confining a person and assault on grave provocation have been separately grouped. Another illustration is furnished by the Criminal Procedure Code in the preventive sections 107 to 110. These deal with different groups of persons; vagrants are in one class, habitual offenders in another, bad characters in the third and disturbers of peace in the fourth. It seems that it is on lines similar to these that it must have been contemplated by the Constitution that classes of cases would be prescribed by Parliament, but this has not been done.

The Constitution has recognised varying scales of duration of detention with the idea that this will vary with the nature of the apprehended act, detention for a period of three months in ordinary cases, detention for a longer period than three months with the intervention of an adviso- ry board in more serious cases, while detention for a longer period than three months without the intercession of an advisory board for a still more dangerous class and for acts committed in grave situations. It can hardly be said that all cases of preventive detention for reasons connected with the maintenance of public order stand on the same footing in the degree of gravity and deserve the same 240 duration of detention and all cases connected with the maintenance of supplies and services essential to the life of the community stand in the matter of their gravity on such a footing as to require a lenient treatment. It is true that in a sense all persons who act prejudicially to the defence of India may be comprehensively said to form one group and similarly persons who act prejudicially to the maintenance of supplies and services essential to the life of the community may form another class but the question is, whether it was in this comprehensive sense that classifica- tion was intended by the Constitution in clause (7) or was it intended in a narrower and restricted sense ? It has to be remembered that the law under clause (7) was intended to provide detention for a longer period and such a law very seriously abridges personal liberty and in this situation giving a narrower and restricted meaning to this expression will be in accordance with well established canons of con- struction of statutes.

The wide construction of clause (7) of article 22 brings within the ambit of the clause all the subjects in the legislative list and very seriously abridges the personal liberty of a citizen. This could never have been the inten- tion of the framers of the Constitution. The narrow and restricted interpretation is in accord with the scheme of the article and it also operates on the whole field of the legislative list and within that field it operates by demar- cating certain portions out of each subject which requires severe treatment. If I may say so m conclusion, section 12 treats the lamb and the leopard in the same class because they happen to be quadrupeds. Such a classification could not have been in the thoughts of the Constitution-makers when clause (7) was introduced in article 22. For the reasons given above, I am of the opinion that section 12 of Act IV of 1950 does not fulfil the requirements of clause (7) of article 22 of the Constitution and is not a law which falls within the ambit of that clause. That being so, this section of Act IV of 1950 is void and by reason of it the detention of the petitioner cannot be justified. There is no other provision in 241 this law under which he can be detained for any period whatsoever.

It was argued that it was neither practicable nor possi- ble to make a classification on any definite basis in the case of apprehended acts of persons whose activities are of a prejudicial character to the maintenance of public order or to the security of the State or to the defence of India.

This contention to my mind is not sound. Such a classifica- tion was made in the rules under the Defence of India Act by defining “a prejudicial act” in regulation 34. Mere difficulty in precisely ascertaining the groups or in defin- ing objectively the conduct of such groups is no ground for not complying with the clear provisions of the statute or for disobeying it. I see no difficulty whatsoever if a serious effort was made to comply with the provisions of clause (7). I cannot see that the compulsory requirement of an advisory board is likely to lead to such disastrous or calamitous results that in all cases or at least in five out of the six subjects of legislation it becomes necessary to dispense with this requirement. The requirement of an advi- sory board is in accordance with the preamble of the Consti- tution and is the barest minimum that can make a law of preventive detention to some little degree tolerable to a democratic Constitution. Such a law also may have some justification even without the requirement of an advisory board to meet certain defined dangerous situations or to deal with a class of people who are a danger to the State but without such limitation the law would be destructive of all notions of personal liberty. The Constitution must be taken to have furnished an adequate safeguard to its citi- zens when it laid down certain conditions in clause (7) and it could not be considered that it provided no safeguard to them at all and that the words used in clause (7) were merely illusory and had no real meaning.

Section 14 of Act IV of 1950 has been impugned on the ground that it contravenes and abridges the provisions of articles 22 (5) and 32 of the Constitution. This section is in these terms:– 242 “(1) No Court shall except for the purposes of a prose- cution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 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 notwithstanding anything con- tained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or repre- sentation made, or the proceedings of an advisory board or that part of the report of an advisory board which is confi- dential.

(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1):

Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.” This section is in the nature of an iron curtain around the acts of the authority making the order of preventive detention. The Constitution has guaranteed to the detained person the right to be told the grounds of detention. He has been given a right to make a representation [vide arti- cle 22 (5)], yet section 14 prohibits the disclosure of the grounds furnished to him or the contents of the representa- tion made by him in a Court of law and makes a breach of this injunction punishable with imprisonment.

Article 32 (1) of the Constitution is in these terms :– “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” 243 Sub-section (4) says :– “The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitu- tion.” Now it is quite clear that if an authority passes an order of preventive detention for reasons not connected with any of the six subjects mentioned in the 7th Schedule, this Court can always declare the detention illegal and release the detenu, but it is not possible for this Court to func- tion if there is a prohibition against disclosing the grounds which have been served upon him. It is only by an examination of the grounds that it is possible to say wheth- er the grounds fall within the ambit of the legislative power contained in the Constitution or are outside its scope. Again something may be served on the detenu as being grounds which are not grounds at all. In this contingency it is the right of the detained person under article 32 to move this Court for enforcing the right under article 22 (5) that he be given the real grounds on which the detention order is based. This Court would be disabled from exercis- ing its functions under article 32 and adjudicating on the point that the grounds given satisfy the requirements of the sub-clause if it is not open to it to see the grounds that have been furnished. It is a guaranteed right of the person detained to have the very grounds which are the basis of the order of detention. This Court would be entitled to examine the matter and to see whether the grounds furnished are the grounds on the basis of which he has been detained or they contain some other vague or irrelevant material. The whole purpose of furnishing a detained person with the grounds is to enable him to make a representation refuting these grounds and of proving his innocence. In order that this Court may be able to safeguard this fundamental right and to grant him relief it is absolutely essential that the detenu is not prohibited under penalty of punishment to disclose the grounds to the Court and no injunction by law can be issued to this Court disabling it from having a look at the grounds. Section 14 creates a substantive offence if the grounds are disclosed and it also lays a duty on the Court not 244 to permit the disclosure of such grounds. It virtually amounts to a suspension of a guaranteed right provided by the Constitution inasmuch as it indirectly by a stringent provision makes administration of the law by this Court impossible and at the same time it deprives a detained person from obtaining justice from this Court. In my opin- ion, therefore, this section when it prohibits the disclo- sure of the grounds contravenes or abridges the rights given by Part III to a citizen and is ultra vires the powers of Parliament to that extent.

The result of the above discussion is that, in my opin- ion, sections 12 and 14 of Act IV of 1950 as above indicated are void and the decision of the detenu’s case has to be made by keeping out of sight these two provisions in the Act. If sections 12 and 14 are deleted from the impugned legislation, then the result is that the detention of the petitioner is not legal. The statute has not provided for detention for a period of three months or less in such cases as it could have done under article22 (4) of the Constitu- tion and that being so, the petitioner cannot be justifia- bly detained even for a period of three months. I would accordingly order his release.

In view of the decision above arrived at I do not con- sider it necessary to express any opinion on the other points that were argued at great length before us, namely, (1)what is ‘the scope and true meaning of the expression “procedure established by law” in article 21 of the Consti- tution, and (2) what is the precise scope of articles 19 (1) (d) and 19 (5)of the Constitution.

MUKHERJEA J.–This is an application under article 32 of the Constitution praying for a writ of habeas corpus upon the respondents with a view to release the petitioner who, it is alleged, is being unlawfully detained in the Central Jail, Cuddalore, within the State of Madras.

The petitioner, it is said, was initially arrested in Malabar on 17th of December, 1947, and prosecution was started against him on various charges for having 245 delivered certain violent speeches. While these criminal cases were going on, he was served with an order of deten- tion under the Madras Maintenance of Public Order Act on 22nd April, 1948. This order of detention was held to be illegal by the Madras High Court, but on the same day that the judgment was pronounced, a second order of detention was served upon him. On his moving the High Court again for a writ of habeas corpus in respect to the subsequent order, his application was dismissed on the ground that as he was not granted bail in one of the three criminal cases that were pending against him, the detention could not be said to be unlawful. Liberty, however, was given to him to renew his application if and when his detention under the criminal proceedings ceased. In two out of the three criminal cases the trial before the magistrate ended on February 23, 1949, and the petitioner was sentenced to rigorous imprisonment for 6 months in each of the cases. These sentences, however, were set aside in appeal on 26th September, 1949. As re- gards the third case, he was tried by the Sessions Judge of North Malabar and sentenced to rigorous imprisonment for 5 years but this sentence was reduced to 6 months’ imprison- ment by the Madras High Court on appeal. The petitioner made a fresh application to the High Court praying for a writ of habeas corpus in respect of his detention under the Madras Maintenance of Public Order Act and this application, which was heard after he had served out his sentences of imprisonment referred to above, was dismissed in January, 1950. On 25th February, 1950, the Preventive Detention Act was passed by the Parliament and on the 1st of March follow- ing, the the detention of the applicant under the Madras Maintainance of Public Order Act was cancelled and he was served with a fresh order of detention under section 3 (1) of the Preventive Detention Act, 1950. On behalf of the respondents the detention of the petitioner is sought to be justified on the strength of the Preventive Detention Act of 1950. The position taken up on behalf of the petitioner on the other hand is that the said Act is invalid and ultra vires the conStitution by reason of its being in conflict with certain 246 fundamental rights which are guaranteed by the Constitution.

It is argued, therefore, that the detention of the peti- tioner is invalid and that he should be set at liberty.

The contentions that have been but forward-by Mr. Nambi- ar who appeared in support of the petition, may be classi- fied under four heads. His first contention is that as preventive detention is, in substance, a restriction on the free movements of a person throughout the Indian territory, it comes within the purview of article 19 (1) (d) of Part III of the Constitution which lays down the fundamental rights. Under clause (5) of the article, any restriction imposed upon this right of free movement must be reasonable and should be prescribed in the interests of the general public. The question as to whether it is reasonable or not is a justiciable matter which is to be determined by the Court. This being the legal position, the learned Counsel invites us to hold that the main provisions of the impugned Act, particularly those which are contained in sections 3, 7, 10, 11, 12, 13 and 14 are wholly unreasonable and should be invalidated on that ground.

The second contention advanced by the learned Counsel is that the impugned legislation is in conflict with the provi- sion of article 21 of the Constitution inasmuch as it pro- vides for deprivation of the personal liberty of a man not in accordance with a procedure established by law. It is argued that the word ‘law’ here does not mean or refer to any particular legislative enactment but it means the gener- al law of the land, embodying those principles of natural justice’ with regard to procedure which are regarded as fundamental, in all systems of civilised jurisprudence.

It is conceded by the learned counsel that the proce- dure, if any, with regard to preventive detention as has been prescribed by article 22 of the Constitution which itself finds a place in the chapter on Fundamental Rights must override those general rules of procedure which are contemplated by article 21 but with regard to matters for which no provision is made in article 22, the general provi- sion made in article 21 247 must apply. He has indicated in course of his arguments what the essentials of such procedure are and the other point specifically raised in this connection is that the provision of section 12 of the Preventive Detention Act is in conflict with article 22 (7) of the Constitution.

The last argument in support of this application is that the provisions of sections 3 and 14 of the Preventive Deten- tion Act are invalid as they take away and render completely nugatory the fundamental right to constitutional remedies as is provided for in article 32 of the Constitution.

In discussing these points it should be well to keep in mind the general scheme of the Indian Constitution relating to the protection of the fundamental rights of the citizens and the limitations imposed in this respect upon the legis- lative powers of the Government. The Constitution of India is a written Constitution and though it has adopted many of the principles of the English Parliamentary system, it has not accepted the English doctrine of the absolute supremacy of Parliament in matters of legislation. In this respect it has followed the American Constitution and other systems modelled on it. Notwithstanding the representative charac- ter of their political institutions, the Americans regard the limitations imposed by their Constitution upon the action of the Government, both legislative and executive, as essential to the preservation of public and private rights.

They serve as a check upon what has been described as the despotism of the majority; and as was observed in the case of Hurtado v. The People of California (1) “a government which holds the lives, the liberty and the property of its citizens, subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism.” In India it is the Constitution that is supreme and Parliament as well as the State Legislatures must not only act within the limits of their respective legislative spheres as demarcated in the three (1) [1884] USSC 84; 110 U.S. 516.

32 248 lists occuring in the Seventh Schedule to the Constitution, but Part III of the Constitution guarantees to the citizens certain fundamental rights which the legislative authority can on no account transgress. A statute law to be valid must, in all cases, be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is unconstitutional or not. Article 13 (2) is imperative on this point and provides expressly that the State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contra- vention of this clause shall, to the extent of the contra- vention, be void. Clause (1) of the article similarly invalidates all existing laws which are inconsistent with the provisions of this Part of the Constitution.

The fundamental rights guaranteed by the Constitution have been classified under seven heads or categories. 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 remedy.

The arrangement differs in many respects from that adopted in the American Constitution and bears a likeness on certain points to similar declarations in the Constitutions of other countries.

Of the different classes of fundamental rights spoken of above, we are concerned here primarily with right to freedom which is dealt with in four articles beginning from article 19 and also with the right to constitutional remedy which is embodied in article 32.

Article 10 enumerates certain forms of liberty or free- dom, the protection of which is guaranteed by the Constitu- tion. In article 20, certain protections are given in cases of persons accused of criminal offences. Article 21 lays down in general terms that no person shall be deprived of his life or personal liberty, except 249 according to procedure established by law. Article 22 pro- vides for certain additional safeguards in respect to arrest and detention and by way of exception to the rules so made, makes certain special provisions for the particular form of detention known as Preventive Detention.

The first contention advanced by Mr. Nambiar involves a consideration of the question as to whether Preventive Detention, which is the subject matter of the impugned legislative enactment, comes within the purview of article 19 (1) (d) of the Constitution, according to which a right to move freely throughout the territory of India is one of the fundamental rights guaranteed to all citizens. If it comes within that sub-clause, it is not disputed that clause (5) of article 19 would be attracted to it and it would be for the courts to decide whether the restrictions imposed upon this right by the Parliament are reasonable restric- tions and are within the permissible limits prescribed by clause (5) of the article.

There is no authoritative definition of the term ‘Pre- ventive Detention’ in Indian law, though as description of a topic of legislation it occurred in the Legislative Lists of the Government of India Act, 1935, and has been used in Item 9 of List I and Item 3 of List III in the Seventh Schedule to the Constitution. The expression has its origin in the language used by Judges or the law Lords in England while explaining the nature of detention under Regulation 14 (B) of the Defence of Realm Consolidation Act, 1914, passed on the outbreak of the First World War; and the same lan- guage was repeated in connection with the emergency regula- tions made during the last World War. The word ‘ preventive ‘ is used in contradistinction to the word ‘ punitive.’ To quote the words of Lord Finlay in Rex v. Halliday(1), “it is not a punitive but a precautionary measure.” The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge formulated;

and the justification of such detention is suspicion (1) [1917] UKHL 1; [1917] A.C. 260 at p. 269.

250 or reasonable probability and not criminal conviction which can only be warranted by legal evidence (1). Detention in such form is unknown in America. It was resorted to in England only during war time but no country in the world that I am aware of has made this an integral part of their Constitution as has been done in India. This is undoubtedly unfortunate, but it is not our business to speculate on questions of policy or to attempt to explore the reasons which led the representatives of our people to make such a drastic provision in the Constitution itself, which cannot but be regarded as a most unwholesome encroachment upon the liberties of the people.

The detention of a man even as a precautionary measure certainly deprives him of his personal liberty, and as article 21 guarantees to every man, be he a citizen or a foreigner, that he shall not be deprived of his life and personal liberty, except in accordance with the procedure established by law, the requirements of article 21 would certainly have to be complied with, to make preventive detention valid in law. What these requirements are I will discuss later on. Article 22 comes immediately after arti- cle 21. It secures to all persons certain fundamental rights in relation to arrest and detention, and as already said, by way of exception to the rights thus declared, makes certain specific provisions relating to preventive deten- tion. The subject of preventive detention is specified in and constitutes Item No. 9 in the Union legislative List and it also forms Item No. 3 in the Concurrent List. Under article 246 of the Constitution, the Parliament and the State Legislatures are empowered to legislate on this sub- ject within the ambit of their respective authorities.

Clause(3) of article 22 expressly enjoins that the protec- tive provisions of clauses (1) and (2) of the article would not be available to persons detained under any law providing for preventive detention. The only fundamental rights which are guaranteed by the Constitution in the matter of preven- tive detention and which to that extent impose restraints upon the exercise of legislative powers in that respect are (1) Vide Lord Macmillan in Liversidge v. Anderson [1941] UKHL 1; [1942] A.C. 206 at p. 254.

251 contained in clauses (4) to (7) of article 22. Clause (4) lays down that no law of preventive detention shall autho- rise the detention of a person for a period longer than three months, unless an advisory board constituted in the manner laid down in sub-clause (a) of the clause has report- ed before the expiration of the period that there is suffi- cient cause for such detention. The period of detention cannot, in any event, exceed the maximum which the Parlia- ment is entitled to prescribe under clause (7) (b). The Parliament is also given the authority to prescribe the circumstances and the class of cases under which a person can be detained for a period longer than three months under any law of preventive detention without obtaining the opin- ion of the advisory board. There is one safeguard provided for all cases which is contained in clause (5) and which lays down that the authority making the order of detention shall, as soon as possible 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. But even here, the authority while giving the grounds of detention need not disclose such facts which it considers against public interest to disclose.

The question that we have to consider is whether a law relating to preventive detention is justiciable in a Court of law on the ground of reasonableness under article 19 (5) of the Constitution inasmuch as it takes away or abridges the right to free movement in the territory of India guaran- teed by clause (1) (d)of the article. It will be seen from what has been said above that article 22 deals specifically with the subject of preventive detention and expressly takes away the fundamental rights relating to arrest and detention enumerated in clauses (1) and (2) of the article from per- sons who are detained under any law which may be passed by the Parliament or State Legislatures acting under article 246 of the Constitution read with the relevant items in the legislative lists. I will leave aside for the moment the question as to how far the court can examine the reasonable- ness or otherwise of the procedure that is prescribed by any law relating 252 to preventive detention, for that would involve a considera- tion of the precise scope and meaning of article. 21; but this much is beyond controversy that so far as substantive law is concerned, article 22 of the Constitution gives a clear authority to the legislature to take away the funda- mental rights relating to arrest and detention, which are secured by the’first two clauses of the article. Any legis- lation on the subject would only have to conform to the requirements of clauses (4) to (7) and provided that is done, there is nothing in the language employed nor in the context in which it appears which affords any ground for suggestion that such law must be reasonable in its character and that it would be reviewable by the Court on that ground.

Both articles 19 and 22 occur in the same Part of the Con- stitution and both of them purport to lay down the fundamen- tal rights which the Constitution guarantees. It is well settled that the Constitution must be interpreted in a broad and liberal manner giving effect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers. In interpreting the words of a Constitution, the same principles undoubtedly apply which are applicable in construing a statute, but as was observed by Lord Wright in James v. Commonwealth of Australia ( 1 ), “the ultimate result must be determined upon the actual words used not in vacuo but as occurring in a single complex instrument in which one part may throw light on the other.” “The Constitution,” his Lordship went on saying, “has been described as the federal compact and the construction must hold a balance between all its parts.” It seems to me that there is no conflict or repugnancy between the two provisions of the Constitution and an exami- nation of the scheme and language of the catena of articles which deal with the rights to freedom would be sufficient to show that what clause (1) (d) of article 19 contemplates is not freedom from detention, either punitive or preventive;

it relates to and speaks of a different aspect or phase of civil liberty.

(1) [1936] A.C. 578 at p. 613.

253 Article 19, which is the first of this series of arti- cles, enumerates seven varieties or forms of freedom begin- ning with liberty of speech and expression and ending’ with free right to practise any trade, profession or business.

The rights declared it articles 19 to 22 do not certainly exhaust the whole list of liberties which people possess under law. The object of the framers of the Constitution obviously is to enumerate and guarantee those forms of liberty which come under well-known categories recognised by constitutional writers and are considered to be fundamental and of vital importance to the community.

There cannot be any such thing as absolute or uncon- trolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. The possession and enjoyment of all rights, as was observed by the Supreme Court of America in Jacobson v. Massachusetts (1), are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community. The question, therefore arises in each case of adjusting the conflicting interests of the individual and of the society.

In some cases, restrictions have to be placed upon free exercise of individual rights to safeguard the interests of the society; on the other hand, social control which exists for public good has got to be restrained, lest it should be misused to the detriment of individual rights and liberties.

Ordinarily, every man has the liberty to order his life as he pleases, to say what he will, to go where he will, to follow any trade, occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance by any other person. On the other hand for the very protection of these liberties the society must arm itself with certain powers. No man’s liberty would be worth its name if it can be violated with impunity by any wrong- doer and if his property or possessions could be preyed upon by a thief or a marauder. The society, therefore, has got to exercise certain powers for the protection of these liber- ties and to arrest, search, imprison and (1) [1905] USSC 38; 197 U.S. 11.

254 punish those who break the law. If these powers are’ prop- erly exercised, they themselves are the safeguards of free- dom, but they can certainly be abused. The police may arrest any man and throw him into prison without assigning any reasons; they may search his belongings on the slightest pretext; he may be subjected to a sham trial and even pun- ished for crimes unknown to law. What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control.

To me it seems that article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law, so that they may not conflict with public welfare or general morality. On the other hand articles 20, 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interests of the society and they set down the limits within which the State control should be exer- cised. Article 19 uses the expression ‘ ‘freedom” and men- tions the several forms and aspects of it which are secured to individuals, together with the limitations that could be placed upon them in the general interests of the society.

Articles 20, 21 and 22 on the other hand do not make use of the expression “freedom” and they lay down the restrictions that are to be placed on State control where an individual is sought to be deprived of his life or personal liberty.

The right to the safety of one’s life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are the inher- ent birthrights of a man. The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of “freedom” to do particular things. There is also no question of imposing limits on the activities of individuals so far as the exer- cise of these rights is concerned. For these reasons, I think, these rights have not been mentioned in article 19 of the Constitution. An individual can be deprived of his life or personal liberty only by action 255 of the State, either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law. What the Constitution does there- fore is to put restrictions upon the powers of the State, for protecting the rights of the individuals. The re- straints on State authority operate as guarantees of indi- vidual freedom and secure to the people the enjoyment of life and personal liberty which are thus declared to be inviolable except in the manner indicated in these articles.

In my opinion, the group of articles 20 to 22 embody the entire protection guaranteed by the Constitution in relation to deprivation of life and personal liberty both with regard to substantive as well as to procedural law. It is not correct to say, as I shah show more fully later on, that article 21 is confined to matters of procedure only. There must be a substantive law, under which the State is empow- ered to deprive a man of his life and personal liberty and such law must be a valid law which the legislature is compe- tent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the Constitution lays down. Thus a person cannot be convicted or punished under an ex post facto law, or a law which compels the accused to incriminate himself in a crimi- nal trial or punishes him for the same offence more than once. These are the protections provided for by article 20.

Again a law providing for arrest and detention must conform to the limitations prescribed by clauses (1) and (2) of article 22. These provisions indeed have been withdrawn expressly in case of preventive detention and protections of much more feeble and attenuated character have been substi- tuted in their place;but this is a question of the policy adopted by the Constitution which does not concern us at all. The position, therefore, is that with regard to life and personal liberty, the Constitution guarantees protection to this extent that no man could be deprived of these rights except under a valid law passed by a competent legislature within the limits mentioned above and in accordance with the procedure which such law lays down. Article 19, on the other hand, 256 enunciates certain particular forms of civil liberty quite independently of the rights dealt with under article 21.

Most of them may be connected with or dependent upon person- al liberty but are not identical with it; and the purpose of article 19 is to indicate the limits within which the State could, by legislation, impose restrictions on the exercise of these rights by the individuals. The reasonableness or otherwise of such legislation can indeed be determined by the Court to the extent laid down in the several clauses of article 19, though no such review is permissible with regard to laws relating to deprivation of life and personal liber- ty. This may be due to the fact that life and personal freedom constitute the most vital and essential rights which people enjoy under any State and in such matters the pre- cise and definite expression of the intention of the legislature has been preferred by the Constitution to the variable standards which the judiciary might lay down.

We find the rights relating to personal liberty being de- clared almost in the same terms in the Irish Consti- tution article 40 (1) (4) (1) of which lays down that “no citizen shall be deprived of his personal liberty save in accordance with law.” In the Constitution of the Free City of Danzig, “the liberty of the person has been declared to be inviolable and no limitation or deprivation of personal liberty may be imposed by public authority except by virtue of a law” (vide article 74). Article 31 of the Japanese Constitution is the closest parallel to article 21 of the Indian Constitution and the language is almost identical.

This is the scheme adopted by the Constitution in dealing with the rights to freedom described in the chapter on fundamental rights and in my opinion, therefore, the proper test for determining the validity of an enactment under which a person is sought to be deprived of his life and personal liberty has to be found not in article 19, but in the three following articles of the Constitution. Article 20 of course has no application so far as the law relating to preventive detention is concerned.

Mr. Nambiar’s endeavour throughout has been to 257 establish that article 19 (1) (d) of the Constitution read with article 19 (5) enunciates the fundamental rights of the citizens regarding the substantive law of personal liberty, while article 21 embodies the protection as regards proce- dural law. This, in my opinion, would be looking at these provisions from a wrong angle altogether. Article 19 cannot be said to deal with substantive law merely, nor article 21 with mere matters of procedure. It cannot also be said that the provisions of article 19 (1) (d) read with clause (5) and article 21 are complementary to each other. The con- tents and subject matter of the two provisions are not identical and they proceed on totally different princi- ples. There is no mention of any “right to life” in article 19, although that is the primary and the most important thing for which provision is made in article 21. If the contention of the learned counsel is correct, we would have to hold that no protection is guaranteed by the Constitution as regards right to life so far substantive law is con- cerned. In the second place, even if freedom of movement may be regarded as one of the ingredients of personal liberty, surely there are other elements included in the concept and admittedly no provision for other forms of personal liberty are to be found in article 19 (5) of the Constitution.

Furthermore article 19 is applicable to citizens only, while the rights guaranteed by article 21 are for all per- sons. citizens as well as aliens. The only proper way of avoiding these anomalies is to interpret the two provisions as applying to different subjects and this would be the right conclusion if we have in mind the scheme which under- lies this group of articles.

I will now turn to the language of article 19 (1) (d) and see whether preventive detention really comes within its purview. Article 19 (1) (d) provides that all citizens shall have the right to move freely throughout the territory of India. The two sub-clauses which come immediately after sub-clause (d) and are intimately connected with it, are in these terms:

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

258 (f) to acquire, hold and dispose of property.” Clause (5)relates to all these three sub-clauses and lays down that nothing in them 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- clause either in the interests of the general public or for the protection of the interests of any scheduled tribe.

I agree with the learned Attorney-General that in con- struing article 19 (1) (d) stress is to be laid upon the expression “throughout the territory of India,” and it is a particular and special kind of right, viz., that of free movement throughout the Indian territory, that is the aim and object of the Constitution to secure. In the next sub- clause, right tO reside and settle “in any part of the territory of India” is given and here again the material thing is not the right of residence or settlement but the right to reside or settle in any part of the Indian territo- ry. For an analogous provision, we may refer to article 301 which says that subject to the other provisions of this Part, commerce and intercourse throughout the territory of India shall be free. The meaning of sub-clause (d) of arti- cle 19 (1) will be clear if we take it along with sub- clauses (e) and (f), all of which have been lumped together in clause (5) and to all of which the same restrictions including those relating to protecion of the interest of any scheduled tribe have been made applicable. It will be remembered that these rights are available only to citizens.

To an alien or foreigner, no guarantee of such rights has been given. Normally all citizens would have the free right to move from one part of the Indian territory to another.

They can shift their residence from one place to any other place of their choice and settle anywhere they like. The right of free trade, commerce and intercourse throughout the territory of India is also secured. What the Constitu- tion emphasises upon by guaranteeing these rights is that the whole of Indian Unian in spite of its being divided into a number of States is really one unit as far as the citizens of the Union are concerned. All the 259 citizens would have the same privileges and the same facilities for moving into any part of the territory and they can reside or carry on business anywhere they like; and no restrictions either inter-State or otherwise would be allowed to set up in these respects between one part of India and another.

So far as free movement throughout the territory is concerned, the right is subject to the provision of clause (5), under which reasonable limitation may be imposed upon these liberties in the interests of the general public or protection of any scheduled tribe. The interests of the public which necessitates such restrictions may be of var- ious kinds. They may be connected with the avoidance of pestilence or spreading of contagious diseases; certain places ‘again may be kept closed for military purposes and there may be prohibition of entry into areas which are actual or potential war zones or where disturbances of some kind or other prevail. Whatever the reasons might be, it is necessary that these restrictions must be reasonable, that is to say, commensurate with the purpose for which they are laid down. In addition to general interest, the Constitu- tion has specified the protection of the interests of the scheduled tribes as one of the factors which has got to be taken into consideration in the framing of these restric- tions. The scheduled tribes, as is well known, are a back- ward and unsophisticated class of people who are liable to be imposed upon by shrewd and designing persons. Hence there are various provisions disabling them from alienating even their own properties except under special conditions.

In their interest and for their benefit, laws may be made restricting the ordinary right of citizens to go or settle in particular areas or acquire property in them. The refer- ence to the interest of scheduled tribe makes it quite clear-that the free movement spoken of in the clause relates not to general rights of locomotion but to the particular right of shifting or moving from one part of the Indian territory to another, without any sort of discriminatory barriers.

This view will receive further support if we look to some analogous provisions ,in the Constitution of 260 other countries. It will be seen that sub-clauses (d) (e) and (f)of article 19 (1) are embodied in almost identical language in one single article, viz., article 75 of the Constitution of the Free City of Danzig. The article runs as follows:

“All nationals shall enjoy freedom of movement within the free city and shall have the right to stay and to settle at any place they may choose, to acquire real property and to earn their living in any way. This right shall not be curtailed without legal sanctions.” The several rights are thus mentioned together as being included in the same category, while they are differentiated from the “liberty of the person” which is “described to be inviolable except by virtue of a law” in article 74 which appears just previous to this article. An analogous provi- sion in slightly altered language occurs in article 111 of the Constitution of the German Reich which is worded in the following manner:

All Germans enjoy the right of change of domicile within the whole Reich. Every one has the right to stay in any part of the Realm that he chooses, t6 settle there, acquire landed property and pursue any means of livelihood.” Here again the right to personal liberty has been dealt with separately in article 114. A suggestion was made in course of our discussions that the expression “throughout the territory of India” occurring in article 19 (1) (d) might have been used with a view to save Passport Regulations or to emphasise that no rights of free emigration are guaran- teed by the Constitution. The suggestion does not seem to me to be proper. No State can guarantee to its citizens the. free right to do anything outside its own territory.This is true of all the fundamental rights men- tioned in article 19 and not merely of the right of free movement. Further it seems to me that the words “throughout the territory of India” have nothing to do with rights of emigration. We find that both in the Danzig as well as in the German Constitution, where similar words have been used with regard to the excercise of the right of free movement throughout the.

261 territory, there are specific provisions which guarantee to all nationals the free right of emigration to other coun- tries (vide article 76 of the Danzig Constitution and arti- cle 112 of the Constitution of the German Reich). In my opinion, therefore, preventive detention does not come either within the express language or within the spirit and intendment of clause (1) (d) of article 19 of the Constitu- tion which deals with a totally different aspect or form of civil liberty.

It is true that by reason of preventive detention, a man may be prevented from exercising the right of free movement within the territory of India as contemplated by article 19 (1) (d) of the Constitution, but that is merely incidental to or consequential upon loss of liberty resulting from the order of detention. Not merely the right under clause (1) (d), but many of the other rights which are enumerated under the other-sub-clauses of article 19 (1) may be lost or suspended so long as preventive detention continues. Thus a detenu so long as he is under detention may not be able to practise any profession, or carry on any trade or business which he might like to do; but this would not make the law providing for preventive detention a legislation taking away or abridging the rights under article 19 (1) (g) of the Constitution and it would be absurd to suggest that in such cases the validity of the legislation should be tested in accordance with the requirement of clause (6) of article 19’and that the only restrictions that could be placed upon the person’s free exercise of trade and profession are those specified in that clause. Mr. Nambiar concedes that in such cases we must look to the substance of the particular legis- lation and the mere fact that it incidentally trenches upon some other right to which it does not directly relate is not material. He argues, however, that the essence or substance of a legislation which provides for preventive detention is to take away or curtail the right of free move- ments and in fact, “personal liberty” according to him, connotes nothing else but unrestricted right of locomotion.

The learned counsel refers in this connection to certain passages in Blackstone’s Commentaries on the Laws of Eng- land, where 262 the author discusses what he calls the three absoluterights inherent in every Englishman, namely, rights of personal security, personal liberty and property. “Personal security”, according to Blackstone, consists in a person’s legal and uninterrupted enjoyment of his life, his limb, his body, his health and his reputation; whereas “personal liberty” consists in the power of locomotion, of changing of situation or moving one’s person to whatsoever place one’s own inclination may direct without imprisonment or restraint unless by due course of law (1). It will be seen that Blackstone uses the expression “personal liberty” in a somewhat narrow and restricted sense. A much wider and larger connotation is given to it by later writers on con- stitutional documents, particularly in America. In ordinary language “personal liberty” means liberty relating to or concerning the person or body of the individual; and “per- sonal liberty” in this sense is the antithesis of physical restraint or coercion. According to Dicey, who is an acknowledged authority on the subject “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(2). It is, in my opinion, this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory.

In this connection, it may not be irrelevant to. point out that it was in accordance with the recommendation of the’Drafting Committee that the word “personal” was inserted before “liberty” in article 15 of the Constitution which now stands as article 21. In the report of the Drafting Commit- tee it is stated that the word “liberty” should be quali- fied by the insertion of the word “personal” before it;

otherwise, it might be construed very widely so as to in- clude even the freedoms already dealt with in article 13.

Article. 13, it should be noted, is the present article 19.

If the views of the Drafting Committee were accepted by the (1) Vide Chase’s Blackstone, 4th Edn, pp. 68, 73.

(2) Vide Dicey on Constitutional Law, 9th Edn, pp. 207-208.

263 Constituent Assembly, the intention obviously was to exclude the contents of article 19. from the concept of “personal liberty” as used in article 21. To -what extent the meaning of words used in the Constitution could be discovered from reports of Drafting Committee or debates on the floor of the House is a matter not quite free from doubt and I may have to take up this matter later on when discussing the meaning of the material clause in article 21 of the Constitution.

It is enough to say at this stage that if the report of the Drafting Committee is an appropriate material upon which the interpretation of the words of the Constitution could be based, it certainly goes against the contention of the applicant and it shows that the words used in article 19 (1) (d) of the Constitution do not mean the same thing as the expression “personal liberty” in article 21 does. It is well known that the word “‘liberty” standing by itself has been given a very wide meaning by the Supreme Court of the United States of America. It includes not only personal freedom from physical restraint but the right to the free use of one’s own property and to enter into free contractual relations, In the Indian Constitution, on the other hand, the expression “personal liberty” has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise. Apart from the report of the Drafting Committee, that is the plain grammatical meaning of the expression as I have already explained.

It may not, I think, be quite accurate to state that the operation of article 19 of the Constitution is limited to free citizens only and that the rights have been described in that article on the presupposition that the citizens are at liberty. The deprivation of personal liberty may entail as a consequence the loss or abridgement of many of the rights described in article 19, but that is because the nature of these rights is such that free exercise of them is not possible in the absence of personal liberty. On the other hand, the right to hold and dispose of property which is in subclause (f) of article 19 (1) and which is not dependent on full possession of personal liberty by the owner may 264 not be affected if the owner is imprisoned or detained.

Anyway, the point is not of much importance for purposes of the present discussion. The result is that, in my opinion, the first contention raised by Mr. Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the Preventive Detention Act and see whether it is within the permissible bounds specified in clause (5) of article 19.

I now come to the second point raised by Mr. Nambiar in support of the application; and upon this point we had arguments of a most elaborate nature addressed to us by the learned counsel on both sides, displaying a considerable amount of learning and research. The point, however, is a short one and turns upon the interpretation to be put upon article 21 of the Constitution, which lays down that “no person shall be deprived of his …….. personal liberty, except according to procedure established by law.” On a plain reading of the article the meaning seems to be that you cannot deprive a man of his personal liberty, unless you follow and act according to the law which provides for deprivation of such liberty. The expression “procedure” means the manner and form of enforcing the law. In my opinion, it cannot be disputed that in order that there may be a legally established procedure, the law which establish- es it must be a valid and lawful law which the legislature is competent to enact in accordance with article 245 of the Constitution and the particular items in the legislative lists which it relates to. It is also not disputed that such law must not offend against the fundamental rights which are declared in Part III of the Constitution. The position taken up by the learned Attorney-General is that as in the present case there is no doubt about the competency of that Parliament to enact the law relating to preventive detention which is fully covered by Item 9 of List I, and Item 3 of List III, and as no question of the law being reasonable or otherwise arises for consideration by reason of the fact that article 19 (1) (d) is not attracted to this case, the law must be held to be a valid piece of legisla- tion and if the procedure 265 laid down by it has been adhered to, the validity of the detention cannot possibly be challenged. His further argu- ment is that article 22 specifically provides for preventive detention and lays down fully what the requirements of a legislation on the subject should be. As the impugned Act conforms to the requirements of article 22, no further ques- tion of its validity under article 21 of the Constitution at all arises. The latter aspect of his arguments, I will deal with later on. So far as the main argument is concerned,the position taken up by Mr. Nambiar is that article 21 refers to ‘procedure only and not to substan- tive law the procedure, however, must be one which is established by law. The expression “law” in this context does not mean or signify, according to the learned counsel, any particular law enacted by the legislature in conformity with the requirements of the Constitu- tion or otherwise possessing a binding authority. It refers to law in the abstract or general sense–in the sense of jus and not lex–and meaning thereby the legal principles or fundamental rules that lie at the root of every system of positive law including our own, and the authority of which is acknowledged in the jurisprudence of all civilised coun- tries. It is argued that if the word “law” is interpret- ed in the sense of any State-made law, article 21 could not rank as a fundamental right imposing a check or limitation on the legislative authority of the Government. It will be always competent to the legislature to pass a law laying down a thoroughly arbitrary and irrational procedure opposed to all elementary principles of justice and fairness and the people would have no protection whatsoever, provided such procedure was scrupulously adhered to. In support of this argument the learned counsel has relied upon a large number of American cases, where the Supreme Court of America ap- plied the doctrine of “due process of law” as it appears in the American Constitution for the purpose of invalidating various legislative enactments which appeared to that Court to be capricious and arbitrary and opposed to the fundamen- tal principles of law.

266 It may be noted here that in the original draft of the Indian Constitution the words used in article 15 (which now stands as article 21) were “in accordance with due process of law.” The Drafting Committee recommended that in place of the “due process” clause, the expression “according to procedure established by law” should be substituted. The present article 21 seems to have been modeled on article 31 of the Japanese Constitution, where the language employed is “no person shall be deprived of’life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.” Mr. Nambiar argues that the expression “procedure established by law” in article 21 of the Constitution bears the same meaning as the “due process” clause does in America, restricted only to this extent, viz., that it is limited to matters of procedure and does not extend to questions of substantive law. To appre- ciate the arguments that have been advanced for and against this view and to fix the precise meaning that is to be given to this clause in article 21, it would be necessary to discuss briefly the conception of the doctrine of “due process of law” as it appears in the American Constitution and the way in which it has been developed and applied by the Supreme Court of America.

In the history of Anglo-American law, the concept of “due process of law” or what is considered to be its equiva- lent “law of the land” traces its lineage far back into the beginning of the 13th century A.D. The famous 39th chapter of the Magna Charta provides that “no free man shall be taken or imprisoned or disseized, or outlawed or exiled or in any way destroyed; nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land.” Magna Charta as a charter of English liberty was confirmed by successive English monarchs and it is in one of these confirmations (28 Ed. III, Chap. 3) known as “Statute of Westminster of the liberties of London”, that the expression “due process of law” for the first time appears. Neither of these phrases was explained or defined in any of the 267 -documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning. In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made (1). These concepts came into America as part of the rights of Englishmen claimed by the colonists. The expression in one form or other appeared in some of the earlier State Constitutions and the exact phrase “due process of law” came to be a part of the Federal Constitution by the Fifth Amendment which was adopted in 1791 and which provided that “no person shall… be deprived of life, liberty or property without due process of law.” It was imposed upon the State Constitution in almost identical language by the Fourteenth Amendment in the year 1868.

What “due process of law” exactly means is difficult to define even at the present day, The Constitution contains no description of what is “due process of law” nor does it declare the principles by application of which it could be ascertained. In Twining v. New Jersey (2) the Court ob- served:

“Few phrases in the law are so elusive of exact appre- hension as this. This COurt has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise.” It is clear, however, that the requirement of “due process of law” in the United States Constitution imposes a limitation upon all the powers of Government, legislative as well as executive and judicial. Applied in England only as protection against executive usurpation and royal tyranny, in America it became a bulwark against arbitrary legislation (3).

(1) Vide Willoughby on the Constitution of the United States, Vol. III, p. 1087.

(2) 211 U.S. 79.

(3) Vide Hurtando v. People of California, [1884] USSC 84; 110 U.S. 516 at p. 532.

268 As it is a restraint upon the legislative power and the- object is to protect citizens against arbitrary and capri- cious legislation, it is not within the competence of the Congress to make any process a “due process of law” by its mere will; for that would make the limitation quite nugato- ry. As laid down in the case cited above, “it is not any act legislative in form that is law; law is something more than mere will exerted as an act of power.” It means and signifies the general law of the land, the settled and abid- ing principles which inhere in the Constitution and lie at the root of the entire legal system. To quote the words of Daniel Webster in a famous argument before.the Supreme Court (1):

“By the law of the land is most clearly intended the general law–a law which hears before it condemns, which proceeds upon enquiry and renders judgment only after trial.

The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.” What these principles of general law are nobody has ever attempted to enumerate. To a large extent they are the principles of English common law and modes of judicial pro- ceedings obtaining in England, the traditions of which came along with the settlers in America. Some Judges seem to have alluded to the principles of natural justice in ex- plaining what is meant by general law or “law of the land,” though the doctrine of a law of nature did not obtain a firm footing at any time. In Wynehamer v. New York (2), Justice Hubbard declared himself opposed to the judiciary attempting to set bounds to the legislative authority or declaring a statute invalid upon any fanciful theory of’higher law or first principles of natural right outside of the Constitu- tion. Coke’s dictum of a supreme fundamental law which obviously referred to principles of English common law cer- tainly did exercise considerable influence upon the minds of the American Judges (3) and there are observations in some cases (1) Darmouth College case, 4 Wheaton p. 518. (2) 13 N.Y. 379.

(3) Willis on Constitutional Law, p. 647.

269 which go to suggest that the principles of natural justice were regarded as identical with those of common law, except where the rules of common law were not considered to be of fundamental character or were not acted upon as being un- suited to the progress of time or conditions of the American Society (1). In the case of Loan Association v. Topeka (2), it was observed that there are limitations upon powers of Government which grow out of the essential nature of free Governments–implied reservations of individual rights without which the social compact could not exist and which are respected by all Governments entitled to the name. What is hinted at, is undoubtedly the old idea of a social com- pact under which political institutions were supposed to come into being; and the suggestion is that when the Ameri- cans formed themselves into a State by surrendering a por- tion of their rights which they possessed at that time and which presumably they inherited from their English ancestors, there were certain rights of a fundamental character still reserved by them which no State could possibly take away.

As has been said already, “due process of law” has never been defined by Judges or Jurists in America. The best description of the expression would be to say that it means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs (3).

In the actual application of the clause relating to “due process of law” to particular cases the decisions of the Supreme Court of America present certain peculiar and unusu- al features and there is total lack of uniformity and consistency in them. Ever since the appearance of the clause in the Fifth Amendment and down to the middle of the 19th century, it was interpreted as a restriction on proce- dure, and particularly the judicial procedure, by which the Government (1) Cooley’s Constitutional Limitations, Vol. II, p. 73940.

(2) 20 Wall, p. 655. (3) Cooley’s Constitutional Limita- tions, Vol. II, p. 741.

270 exercises its powers. Principally it related to the proce- dure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in compli- ance with well established criminal proceedings. The same principle applied to the machinery or proceeding by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised. During this period it was not considered to have any bearing on substan- tial law at all.

Change, however, came in and the period that followed witnessed a growing recognition of the doctrine that sub- stantive rights of life, liberty and property are protected by the requirement of due process of law against any depri- vation attempted at by legislative authority; and the polit- ical and economic conditions of the country accounted to a great extent for this change in judicial outlook. The close of the civil war brought in a new period of industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class. New and important problems arose which the States attempted to deal with by various laws and regu- lations. Some of them seem to have been ill-advised and arbitrary and there was a clamour amongst businessmen against what they described as legislative encroachments upon their vested private rights. The Supreme Court now began to use the rule of due process of law as a direct restraint upon substantial legislation and any statute or administrative act, which imposed a limitation upon rights of private property or free contractual relations between the employers and employed, was invalidated as not being in accordance with due process of law (1). What constituted a legitimate exercise of the powers of legislation now came to be a judicial question and no statute was valid unless it was. reasonable in the opinion of the Court. The question of reasonableness obviously depends largely upon the. ideas of particular individuals and the Courts or rather the majority of Judges thus marshalled their own (1) Vide Encyclopaedia of the Social Sciences, Vol. V, pp.

265-67.

271 views of social and economic policy in deciding the reasona- bleness or otherwise of the statutes. In the language of a well-known writer, the Courts became a kind of negative third chamber both to the State Legislatures and the Con- gress(1). To what extent the Courts laid stress upon the doctrine of freedom of contract is illustrated in the case of Lochner v. New York(2). In that case the question arose as to the validity of a labour legislation which prohibited the employment of persons in certain fields of activity for more than 60 hours a week. Lochner was indicted for violat- ing this law by employing a man in his Biscuit and Cake Factory who was to work more than 60 hours in a week. The Court by a majority of 5 to 4 held the statute to be invalid on the ground that the “right to purchase or sell labour is part of the liberty protected by the Amendment unless there are circumstances which excluded the right.” That decision has been criticized not merely on the ground that it rested upon an economic theory which to quote the language of Holmes J., who was one of the dissentient Judges “was not entertained by a large part of the country;” but it ignored that such regulation was necessary for protecting the health of the employees, that is to say, it was in substance an exercise of police powers with a view to accomplish some object of public interest(s).

It may be mentioned here that while the due process doctrine was being extended by judicial pronouncements, the doctrine of police power which operates to some extent as a check upon the “due process” clause was simultaneously gaining importance. Roughly speaking, police power may be defined as “a right of a Government to regulate the conduct of its people in the interests of public safety, health, morals and convenience. Under this authority, a Government may make regulations concerning the safety of building, the regulation of traffic, the reporting of incurable diseases, the inspection of markets, the sanitation of factories, the hours of work for women (1) Vide Kelley and Harbinson on the American Constitution, p. 539.

198 u.s. 45.

Vide Willoughby on the Constitution of the U.S., Vol. III, p. 271.

272 and children, the sale of intoxicants and such other matters ,,(1). Here again, the extent to which the Court can inter- fere with exercise of police powers by the State has not been clearly defined by judicial pronouncements. The doc- trine generally accepted is that although any enactment by legislature under the guise of exercise of police powers would not necessarily be constitutional, yet if the regula- tion has a direct relation to its proposed object which is the accomplishment of some legitimate public purpose, the wisdom or policy of the legislation should not be examined by the Courts. The rule is not without its exceptions but it is not necessary to elaborate them for our present pur- pose(2). The later decisions, though not quite uniform, reveal the growing influence of the police power doctrine.

It may be said that since 1936 there has been a definite swing of the judicial pendulum in the other direction. In the case of West Coast Hotel Company v. Parrish(3) which related to the legality of a Statute for regulating the minimum wages of women, Chief Justice Hughes, who delivered the opinion of the Court, observed as follows:

“In each case the violation alleged by those attack- ing minimum wage regulation for women is deprivation of freedom of contract. What is the freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognise an absolute and uncontrol- lable liberty. Liberty in each of its phases has its histo- ry and connotation. But the liberty safeguarded is liberty in a social organisation which requires the protection of law. against the evils which menace the health, safety, morals and welfare of the people.” In the succeeding years the indications certainly are that the requirement of due process of law as a substantial restriction on Government control is becoming a thing of the past and the rule is being restricted more (1) Vide Munroe–The Government of the U.S., p. 522.

(2) Vide Willoughby on the Constitution of the U.S. Vol.

III, pp. 1709-70.

(3) [1937] USSC 73; 300 U.S. 379.

273 and more to its original procedural meaning. What will happen in future cannot certainly be predicted at this stage(1).

Thus it will be seen that the “due process” clause in the American Constitution came to be used as a potent in- strument in the hands of the judiciary for exercising con- trol over social legislation. The judicial pronouncements are not guided by any uniform principle, and the economic and social ideas of the Judges, who form the majority in the Supreme Court for the time being, constitute, so to say, the yard-stick for measuring the reasonableness or otherwise of any enactment passed during that period. No writer of American Constitutional Law has been able uptil now to evolve anything like a definite and consistent set of prin- ciples out of the large mass of cases, where the doctrine of “due process of law” has been invoked or applied.

It is against this background that we must consider how the constitution-makers in India dealt with and gave final shape to the provisions, on an analogous subject in the Indian Constitution. In the Draft Constitution, article 15 (which now stands as article 21) was apparently framed on the basis of the 5th and 14th Amendments in the American Constitution. The article was worded as follows:

“No person shall be deprived of his life or liberty without due process of law.” The Drafting Committee in their report recommended a change in the language of this article. The first sugges- tion was that the word “personal” shall be inserted before the word “liberty” and the second was that the expression “in accordance with procedure established by law” shall be substituted for “due process of law,” the reason given being that the former expression was more specific.

The learned Attorney-General has placed before us the debates in the Constituent Assembly centering round the adoption of this recommendation of the Drafting Committee and he has referred us to the (1) Swisher–The Growth of Constitutional Power in the United States, pp. 123-25.

274 speeches of several members of the Assembly who played an important part in the shaping of the Constitution.

As an aid to discover the meaning of the words in a Consti- tution, these debates are of doubtful value. ”Resort can be had to them”‘ says Willoughby, ”with great caution and only when latent ambiguities are to be solved. The proceed- ings may be of some value when they clearly point out the purpose of the provision. But when the question is of ab- stract meaning, it will be difficult to derive from this source much material assistance in interpretation”(1).

The learned Attorney-General concedes that these debates are not admissible to explain the meaning of the words used and he wanted to use them only for the purpose of showing that the Constituent Assembly when they finally adopted the recommendation of the Drafting Committee, were fully aware of the implications of the differences between the old form of expression and the new. In my opinion, in interpreting the Constitution, it will be better if such extrinsic evi- dence is left out of account. In matters like this, differ- ent members act upon different impulses and from different motives and it is quite possible that some members accepted certain words in a particular sense, while others took them in a different light.

The report of the Drafting Committee, however,has been relied upon by both parties and there are decided authori- ties in which a higher value has been attached to such reports than the debates on the floor of the House. In Caminetti v. United States (2), it is said that reports to Congress accompanying the introduction of proposed law may aid the Courts in reaching the true meaning of the legisla- tion in case of doubtful interpretation. The report is extremely short. It simply says that the reason for the suggested change is to make the thing more specific.

I have no doubt in my mind that if the “due process” clause which appeared in the original draft was finally retained by the Constituent Assembly, it could be safely presumed that the framers of the Indian (1) Vide Willoughby on the Constitution of the United States, p. 64.

(2) [1917] USSC 23; 242 U.S. 470.

275 Constitution wanted that expression to bear the same sense as it does in America. But when that form was abandoned and another was deliberately substituted in its place, it is not possible to say that in spite of the difference in the language and expression, they should mean the same thing and convey the same idea. Mr. Nambiar’s contention is that in view of the somewhat uncertain and fluidic state of law as prevails in America on the subject, the Drafting Committee recommended an alteration for the purpose of making the language more specific and he would have us hold that it was made specific in this way, namely, that instead of being extended over the whole sphere of law, substantive as well as adjective, it was limited to procedural law mere- ly. That is the reason, he says, why instead of the word “process” the expression “procedure” was adopted, but the word “law” means the same thing as it does in the “due process” clause in America and refers not to any State-made law but to the fundamental principles which are inherent in the legal system and are based upon the immutable doctrines of natural justice.

Attractive though this argument might at first sight appear, I do not think that it would be possible to accept it as sound. In the first place, it is quite clear that the framers of the Indian Constitution did not desire to intro- duce into our system the elements of uncertainty, vagueness and changeability that have grown round the “due process” doctrine in America. They wanted to make the provision clear, definite and precise and deliberately chose the words” procedure established by law,” as in their opinion no doubts would ordinarily arise about the meaning of this expression. The indefiniteness in the application of the “due process” doctrine in America has nothing to do with the distinction between substantive and procedural law. The uncertainty and elasticity are in the doctrine itself which is a sort of hidden mine, the contents of which nobody knows and is merely revealed from time to time to the. judicial conscience of the Judges. This theory, the Indian Constitu- tion deliberately discarded 276 and that is why they substituted a different form in its place which, according to them, was more specific. In the second place, it appears to me that when the same words are not used, it will be against the ordinary canons of con- struction to interpret a provision in our Constitution in accordance with the interpretation put upon a somewhat analogous provision in the Constitution of another country, where not only the language is different, but the entire political conditions and constitutional set-up are dissimi- lar. In the Supreme Court of America, stress has been laid uniformly upon the word “due” which occurs before and quali- fies the expression “process of law.” “Due” means ” what is just and proper” according to the circumstances of a particular case. It is this word which introduces the varia- ble element in the application of the doctrine; for what is reasonable in one set of circumstances may not be so in another and a different set. In the Indian Constitution the word “due” has been deliberately omitted and this shows clearly that the Constitution-makers of India had no inten- tion of introducing the American doctrine. The word “estab- lished” ordinarily means “fixed or laid down” and if “law” means, as Mr. Nambiar contends, not any particular piece of law but the indefinite and indefinable principles of natural justice which underlie positive systems of law, it would not at all be appropriate to use the expression “established,” for natural law or natural justice cannot establish anything like a definite procedure.

It does not appear that in any part of the Constitution the word “law” has been used in the sense of “general law” connoting what has been described as the principles of natural justice outside the realm of positive law. On the other hand, the provision of’ article 31 of the Constitu- tion, which appears in the. chapter on Fundamental Rights, makes it clear that the word “law” is equivalent to State- made law and to deprive a person of his property, the au- thority or sanction of such law is necessary. As has been said already, the provision of article 21 of. the Indian Constitution reproduces, save in one particular, the- 277 language of article 31 of the Japanese Constitution and it is quite clear from the scheme and provisions of the Japa- nese Constitution that in speaking of law it refers to law passed or recognised as such by the State. In the Irish Constitution also, there is provision in almost similar language which conveys the same idea. Article 40 (4) (1) provides that “no citizen shall be deprived of his personal liberty save in accordance with law,” and by law is certain- ly meant the law of the State.

Possibly the strongest argument in support of Mr. Nambi- ar’s contention is that if law is taken to mean State-made law, then article 21 would not be a restriction on legisla- tion at all. No question of passing any law abridging the right conferred by this article could possibly arise and article 13 (2) of the Constitution would have no operation so far as this provision is concerned. To quote the words of an American Judge it would sound very much like the Constitution speaking to the legislature that the latter could not infringe the right created by these articles unless it chose to do so (1).

Apparently this is a plausible argument but it must be admitted that we are not concerned with the policy of the Constitution. The fundamental rights not merely impose limitations upon the legislature, but they serve as checks on the exercise of executive powers as well, and in the matter of depriving a man of his personal liberty, checks on the high-handedness of the executive in the shape of pre- venting them from taking any step, which is not in accord- ance with law, could certainly rank as fundamental rights.

In the Constitutions of various other countries, the provi- sions relating to protection of personal liberty are couched very much in the same language as in article 21. It is all a question of policy as to whether the legislature or the judiciary would have the final say in such matters and the Constitution-makers of India deliberately decided to place these powers in the hands of the legislature. Article 31 of the Japanese Constitution, upon which article 21 of our Constitution is modelled, also (1) Vide per Bronson 5. in Taylor v. Porte 4 Hill 1.

278 proceeds upon the same principle. The Japanese Constitu- tion, it is to be noted, guarantees at the same. time other rights in regard to arrest, detention and access to Court which might serve as checks on legislative authority as well. Thus article 32 provides:

“No person shall be denied the right of access to the Courts.” Article 34 lays down:

“No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel, nor shall he be detained without adequate cause; and upon demand of any person, such cause must be immediately shown in open Court in his presence and in the. presence of his counsel.” It was probably on the analogy of article 34 of the Japanese Constitution that the first two clauses of article 22 of the Indian Constitution were framed. Article 22 was not in the original Draft Constitution at all; and after the “due process” clause was discarded by the Constituent Assem- bly and the present form was substituted in its place in article 21, article 22 was introduced with a view to provide for some sort of’ check in matters of arrest and detention and the protection it affords places limitations upon the authority of the legislature as well. These protections indeed have been denied to cases of preventive detention but that again is a question of policy which does not concern us as a Court. My conclusion, therefore, is that in article 21 the word “law” has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice. The article presupposes that the law is a valid and binding law under the provisions. of the Constitution having regard to the competency of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for.

In the view that I have taken, the question raised by Mr. Nambiar that the Preventive Detention Act is invalid, by reason of the fact that the procedure it lays 279 down is not in conformity with the rules of natural justice, does not fall for consideration. It is enough, in my opin- ion, if the law is a valid law which the legislature is competent to pass and which does not transgress any of the fundamental rights declared in Part III of the Constitution.

It is also unnecessary to enter into a discussion on the question raised by the learned Attorney-General as to wheth- er article 22 by itself is a self-contained Code with regard to the law of Preventive Detention and whether or not the procedure it lays down is exhaustive. Even if the procedure is not exhaustive, it is not permissible to supplement it by application of the rules of natural justice. On the third point raised by Mr. Nambiar, the only question, therefore, which requires consideration is whether section 12 of the Preventive Detention Act is ultra vires of the Constitution by reason of its being not in conformity with the provision of article 22 (7)(a). Article 22 (7) (a) of the Constitution empowers the Parliament 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 of an advisory board in accordance with the provisions of sub-clause (a) of clause (4). Section 12 of the Preventive Detention Act which purports to be an enact- ment in pursuance of article 22 (7) (a) of the Constitution provides as follows:

“(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 for- eign powers or the security of India; or (b) the security of a State or the maintenance of public order.” It will be noticed that there are altogether six 36 280 heads or subjects in the two Items in the legislative lists, namely, Item No. 9 of List I and Item No. 3 of List III which deal with preventive detention. Item No. 9 of List I mentions reasons connected with defence, foreign affairs and security of India, while Item No. 3 of List III speaks of reasons connected with security of a State, the maintenance of public order and the maintenance of supplies and services essential to the community. With the exception of the last head; all the remaining five have been listed in section 12 of the preventive Detention Act and they have been mentioned both as circumstances and classes of cases in which deten- tion for more than three months would be permissible without the opinion of any advisory board. Mr. Nambiar’s argument is that the mentioning_ of five out of the six legislative heads in section 12 does not amount to prescribing the circumstances under which, or the classes of cases in which, a person could be detained for more than three months as contemplated by article 22 (7) (a). It is also contended that in view of the fact that the two items “circumstances” and “classes” are separated by the conjunction “and,” what the Constitution really contemplated was that both these items should be specified and a statement or specification of any one of them would not be a proper compliance with the provisions of the clause. It is further pointed out that the mentioning of the same matters as “circumstances” or “classes” is not warranted by article 22 (7) of the Consti- tution and is altogether illogical and unsound.

I must say that section 12 has been drafted in a rather clumsy manner and certainly it could have been framed in a better and more proper way. Under article 22(7)(a), the Parliament may specify the circumstances under which, and the classes of cases in which, the necessity of placing the cases of detention for examination by the advisory board could be dispensed with. By “classes of cases” we mean certain determinable groups, the individuals comprised in each group being related to one another in a particular way which constitutes the determining factor of that group.

“Circumstances” on the other hand 281 connote situations or conditions which are external to the persons concerned. Preventive detention can be provided for by law for reasons connected with six different ,matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision contained in article 22 (4) (a) which lays down that deten- tion for more than three months could not be permitted except with the sanction of the advisory board. An alterna- tive however has been provided for by clause (b) and Parlia- ment has been given the option to take away the protection given by clause (a) and specify the circumstances and the cases when this rule will not apply. I am extremely doubt- ful whether the classification of cases made by Parliament in section 12 of the Act really fulfils the object which the Constitution had in view. The basis of classification has been the apprehended acts of the persons detained described with reference to the general heads mentioned in the items in the legislative lists as said above. Five out of the six heads have been taken out and labelled as classes of cases to which the protection of clause (4) (a) of the article would not be available. It is against common sense that all forms of activities connected with these five items are equally dangerous and merit the same drastic treatment. The descriptions are very general and there may be acts of various degrees of intensity and danger under each one of these heads.

Although I do not think that section 12 has been framed with due regard to the object which the Constitution had in view, I am unable to say that the section is invalid as being ultra vires the Constitution. The Constitution has given unfettered powers to Parliament in the matter of making the classifications and it is open to the Parliament to adopt any method or principle as it likes. If it chose the principle implied in the enumeration of subjects under the relevant legislative heads, it cannot be said that Parliament has exceeded its powers.

I am also unable to hold that both “circumstances” as well as “classes” have to be prescribed in order to 282 comply with the requirement of sub-clause (a) of article 22 (7). The sub-clause (a) of the article lays down a purely enabling provision and Parliament, if it so chooses, may pass any legislation in terms of the same. Where an optional power is conferred on certain authority to perform two separate acts, ordinarily it would not be obligatory upon it to perform both; it may do either if it so likes. Here the classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing them from committing certain apprehended acts. I am extremely doubtful whether the classes themselves could be described as “circumstances” as they purport to have been done in the section. “Circumstances” would ordinarily refer to conditions like war, rebellion, communal disturbances and things like that, under which extra precaution might be :necessary and the detention of suspected persons beyond the period of three months without the sanction of the advisory board might be justified. It is said that the likelihood of these persons committing the particular acts which are specified might constitute “circumstances.” In my opinion, that is not a plain and sensible interpretation. But whatev- er that may be, as I am of opinion that it is not obligatory on Parliament to prescribe both the circumstances and the classes of cases, I am unable to hold that section 12 is ultra vires the Constitution because the circumstances are not mentioned. As I have said at the beginning, the draft is rather clumsy and I do not know why Parliament used the word “or” when in the Constitution itself the word “and” has been used.

In the fourth and last point raised by Mr. Nambiar the principal question for consideration is the validity of section 14 of the Preventive Detention Act. Subsection (1)of section 14 prohibits any Court from allowing any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or any representation made by him against such order. It further provides that no Court shall be 283 entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an advisory board or that part of the report of an advisory board which is confidential. Sub-section (2) further provides that:

“It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the’ case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1):

Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.” The provisions of this section are obviously of a most drastic character. It imposes a ban on the Court and pre- vents it from allowing any statement to be made or any evidence produced before it of the substance of any communi- cation made to the detenu apprising him of the grounds upon which the detention order was made. The Court is also incompetent to look into the proceedings before the advisory board or the report of the latter which is confidential.

Further the disclosure of such materials has been made a criminal offence punishable with imprisonment for a term which may extend to one year. Mr. Nambiar’s contention is that these restrictions render utterly nugatory the provi- sions of article 32 of the Constitution which guarantees to every person the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution. It is not disputed that the petitioner has the right of moving this Court for a writ of habeas corpus, and unless the Court is in a position to look into and examine the grounds upon which the detention order has been made, it is impossible for it to come to any deci- sion on the point and pass a proper judgment. Though the right to move this 284 Court is not formally taken away, the entire proceedings are rendered ineffective and altogether illusory. On behalf of the respondent, it is pointed out that article 32 guarantees only the right to constitutional remedy for enforcement of the rights which are declared by the Constitution. If there are no rights under the Constitution, guaranteed to a person who is detained under any law of preventive deten- tion, no question of enforcing such rights by an ap- proach to this Court at all arises. I do not think that this argument proceeds on a sound basis; and in my opinion, section 14 does take away and materially curtails some of the fundamental rights which are guaranteed by the Constitu- tion itself. Article 22, clause (5), of the Constitution lays down as a fundamental right that when a person is detained 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 representa- tion against the order. Under clause (6), the authority need not disclose such facts as it considers to be against public interest to disclose. But so far as the grounds are concerned, the disclosure is not prohibited under any cir- cumstance. It is also incumbent upon the detaining authori- ty to afford a detenu the earliest opportunity of making a representation against the detention order. It has been held in several cases, and in my opinion quite rightly, that if the grounds supplied to a detained person are of such a vague and indefinite character that no proper and adequate representation could be made in reply to the same, that itself would be an infraction of the right which has been given to the detenu under law. In my opinion, it would not be possible for the Court to decide whether the provisions of article 22, clause (5), have been duly complied with and the fundamental right guaranteed by it has been made avail- able to the detenu unless the grounds communicated to him under the provisions of this article are actually produced before the Court. Apart from this, it is also open to. the person detained to contend that the detention 285 order has been a main fide exercise of power by the detain- ing authority and that the grounds upon which it is based, are not proper or relevant grounds which would justify detention under the-provisions of the law itself. These rights of the detenu would for all practical purposes be rendered unenforceable if the Court is precluded from look- ing into the grounds which have been supplied to him under section 7 of the Preventive Detention Act. In my opinion, section 14 of the Preventive Detention Act does materially affect the fundamental rights declared under Part III of the Constitution and for this reason it must be held to be illegal and ultra vires. It is not disputed, however, that this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way. The whole Act cannot, therefore, be held to be ultra vires.

Mr. Nambiar has further argued that section 3 of the Act also contravenes the provisions of article 32 of the Consti- tution, for it makes satisfaction of the particular authori- ties final in matters of preventive detention and thereby prevents this Court from satisfying itself as to the propriety of the detention order. This contention cannot succeed as no infraction of any fundamental right is in- volved in it. As has been pointed out already, this Court cannot interfere unless it is proved that the power has been exercised by the authorities in a mala fide manner or that the grounds are not proper or relevant grounds which justify detention. The provisions are undoubtedly harsh, but as they do not take away the rights under articles 21 and 22 of the Constitution, they cannot be held to be illegal or ultra vires.

The result, therefore, is that, in my opinion, the Preventive Detention Act must be declared to be intra vires the Constitution with the exception of section 14 which is held to be illegal and ultra vires. The present petition, however, must stand dismissed, though it may be open to the petitioner to make a fresh application if he so chooses and if the grounds that have been supplied to him under section 7 of the Act do furnish adequate reasons for making such application.

286 DAS J.–I am likewise of opinion that this application should be dismissed.

The contention of learned counsel appearing in support of this application is that the provisions of the Preventive Detention Act, 1950 (Act IV of 1950), are extremely drastic and wholly unreasonable and take away or, in any event, considerably abridge the fundamental rights conferred on the citizens by the provisions of Part III of the Constitution and that this Court should declare the Act wholly void under article 13 (2) of the Constitution and set the petitioner at liberty.

It is necessary to bear in mind the scope and ambit of the powers of the Court under the Constitution. The powers of the Court are not the same under all Constitutions. In England Parliament is supreme and there is no limitation upon its legislative powers. Therefore, a law duly made by Parliament cannot be challenged in any Court. The English Courts have to interpret and apply the law; they have no authority to declare such a law illegal or unconstitutional.

By the American Constitution the’ legislative power of the Union is vested in the Congress and in a sense the Congress is the supreme legislative power. But the written Constitu- tion of the United States is supreme above all the three limbs of Government and, therefore, the law made by the Congress, in order to be valid, must be in conformity with the provisions of the Constitution. If it is not, the Supreme Court will intervene and declare that law to be unconstitutional and void. As will be seen more fully hereafter, the Supreme Court of the United States, under the leadership of Chief Justice Marshall, assumed the power to.

declare any law unconstitutional on the ground of its not being in “due process of law,” an expression to be found in the Fifth Amendment (1791) of the United States Constitution and the Fourteenth Amendment (1868) which related to the State Constitutions. It is thus that the Supreme Court established its own supremacy over the executive and the Congress. In India the position of the Judiciary is some- where in 287 between the Courts in England and the United States. While in the main leaving our Parliament and the State Legisla- tures supreme in their respective legislative fields, our Constitution has, by some of the articles, put upon the Legislatures certain specified limitations some of which will have to be discussed hereafter. The point to be noted, however, is that in so far as there is any limitation on the legislative power, the Court must, on a complaint being made to it, scrutinise and ascertain whether such limitation has been transgressed and if there has been any transgression the Court will courageously declare the law unconstitution- al, for the Court is bound by its oath to uphold the Consti- tution. But outside the limitations imposed on the legisla- tive powers our Parliament and the State Legislatures are supreme in their respective legislative fields and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature. Our Constitution, unlike the English Constitution, recognises the Court’s supremacy over the legislative authority, but such supremacy is a very limited one, for it is confined to the field where the legislative power is circumscribed by limitations put upon it by the Constitution itself. Within this restrict- ed field the Court may, on a scrutiny of the law made by the Legislature, declare it void if it is found to have trans- gressed the constitutional limitations. But our Constitu- tion, unlike the American Constitution, does not recognise the absolute supremacy of the Court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our Parliament and the State Legislatures are supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States. It is well for us to constantly remember this basic limitation on our own powers.

The impugned Act has been passed by Parliament after the Constitution came into force. Article 246 gives exclusive power to Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule and it gives exclusive power to 288 the State Legislatures to make laws with respect to any of the matters specified in List II of that Schedule. It also gives concurrent power to Parliament as well as to the State Legislatures to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule. Residuary powers of legislation are vested in parliament under article 248.

The first thing to note is that under Entry 9 of List I the parliament and under Entry 3 in List III both parliament and the State Legislatures are empowered to make laws for preventive detention for reasons connected with the several matters specified in the respective entries. This legisla- tion is not conditioned upon the existence of any war with a foreign power or upon the proclamation of emergency under Part XVIII of the Constitution. Our Constitution has, there- fore, accepted preventive detention as the subjectmatter of peacetime legislation as distinct from emergency legisla- tion. It is a novel feature to provide for preventive detention in the Constitution. There is no such provision in the Constitution of any other country that I know of. Be that as it may, for reasons good or bad, our Constitution has deliberately and plainly given power to Parliament and the State Legislatures to enact preventive detention laws even in peacetime. To many of us a preventive detention law is odious at all times but what I desire to emphasise is that it is not for the Court to question the wisdom and policy of the Constitution which the people have given unto themselves. This is another basic fact which the Court must not overlook.

The next thing to bear in mind is that, if there were nothing else in the Constitution, the legislative powers of Parliament and the State Legislatures in their respective fields would have been absolute. In such circumstances the Court would have been entitled only to scrutinise whether Parliament or the State Legislature had, in making a partic- ular law, over-. stepped its legislative field and en- croached upon the legislative field of the other legislative power, but could not have otherwise questioned the validity of any law made by the parliament or the State Legislatures.

289 Thus under Entry 9 of List I the Parliament and under Entry 3 of List III the Parliament and the State Legislature could make as drastic a preventive detention law as it pleased.

Such a law might have authorised a policeman, not to speak of a District Magistrate or Sub-Divisional Magistrate or the Commissioner of Police, to take a man, citizen or non-citi- zen, into custody and keep him in detention for as long as he pleased. This law might not have made any provision for supplying to the detenu the grounds of his detention or affording any opportunity to him to make any representation to anybody or for setting up any advisory board at all.

Likewise, under Entries 1 and 2 in List III the Parliament or the State Legislature might have added as many new and novel offences as its fancy might have dictated and provided for any cruel penalty ranging from the maiming of the limbs to boiling to death in oil or repealed the whole of the Code of Criminal Procedure and provided for trial by battle or ordeal or for conviction by the verdict of a sorcerer or a soothsayer. Such law might have forbidden any speech criti- cising the Government, however mildly, or banned all public meetings or prohibited formation of all associations under penalty of law. Under Entry 33 of List I the Parliament might have made a law for acquiring anybody’s properties for the purposes of the Union without any compensation and under Entry 36 in List III the State Legislature could do the same subject to the provisions of Entry 42 in List III which empowers the making of a law laying down principles for payment of compensation which might be anything above noth- ing. Under Entry 81 Parliament could have made any law restricting or even prohibiting inter-State migration so that a Bengali would not be able to move into and settle in Bihar or vice versa. It is needless to multiply instances of atrocious laws which Parliament or the State Legislature might have made under article 246 read with the different lists if there were nothing else in the Constitution. Our Legislatures, subject to the limitation of distribution of legislative powers, would have been as supreme in their respective legislative fields as the 290 English Parliament is and has been. The Court in India, in such event, would have had to take the law duly made, inter- pret it and apply it. It would not have been entitled to utter a word as to the propriety of the particular law, although it might have shuddered at the monstrous atrocities of such law.

Our Constitution, however, has not accepted this abso- lute supremacy of our Parliament or the State Legislature.

Thus by article 245 (1) the legislative power is definitely made “subject to the provisions of this Constitution.” Turning to the Constitution, article 13 (2) provides as follows:

“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.” This clearly puts a definite limitation on the wide legislative powers given by article 246. It is certainly within the competency of the Court to judge and declare whether there has been any contravention of this limitation.

In this respect again the Court has supremacy over the Legislature.

From the provisions so far referred to, it clearly follows that there are two principal limitations to the legislative power of parliament, namely,– (i) that the law must be within the legislative compe- tence of parliament as prescribed by article 246; and (ii) that such law must be subject to the pro-visions of the Constitution and must not take away or abridge the rights conferred by Part III.

There can be no question–and, indeed, the learned Attorney-General does not contend otherwise–that both these matters are justiciable and it is open to the Courts to decide whether Parliament has transgressed either of the limitations upon its legislative power.

Learned counsel for the petitioner does not say that the impugned Act is ultra vires the legislative powers of Parliament as prescribed by article 246. His contention is that the impugned Act is void 291 because it takes away or abridges the fundamental rights of citizens conferred by Part III of the Constitution. It is, therefore, necessary to ascertain first the exact nature, extent and scope of the particular fundamental right insist- ed upon and then to see whether the impugned Act has taken away or, in any way, abridged the fundamental right so ascertained.

Civil rights of a person are generally divided into two classes, namely, the rights attached to the person (jus personarum) and the rights to things, i.e., property (jus rerum). Of the rights attached to the person, the first and foremost is the freedom of life, which means the right to live, i.e., the right that one’s life shall not be taken away except under authority of law. Next to the freedom of life comes the freedom of the person, which means that one’s body shall not be touched, violated, arrested or imprisoned and one’s limbs shall not be injured or maimed except under authority of law. The truth of the matter is that the right to live and the freedom of the person are the primary rights attached to the person. If a man’s person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can, within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his “own inclination may direct,” reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business. These are attributes of the freedom of the person and are consequently rights attached to the person. It should be clearly borne in mind that these are not all the rights attached to the person. Besides them there are varieties of other rights which are also the attributes of the freedom of the person. All rights attached to the person are usually called personal liberties and they are too numerous to be enumerated. Some of these auxiliary rights are so important and fundamental that they are re- garded and valued as separate and independent rights apart from the freedom of the person.

Personal liberties may be compendiously summed up as the right to do as one pleases within the law. I 292 say within the law because liberty is not unbridled licence.

It is what Edmund Burke called “regulated freedom.” Said Montesquieu in Book III, Ch. 3, of his Spirit of the Laws:

“In Governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow-citizens would enjoy the same power.” To the same effect are the following observations of Webster in his Works Vol. II, p. 393:

“Liberty is the creation of law, essentially different from that authorised licentiousness that trespasses on right. It is a legal and refined idea, the offspring of high civilization, which the savage never understands, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have. It is an error to suppose that liberty consists in a paucity of laws ……… The working of our complex system, full of checks and restraints on legislative, executive and judicial power is favourable to liberty and justice. These checks and restraints are so many safeguards set around individual rights and interests. That man is free who is protected from injury.” Therefore, putting restraint on the freedom of wrong doing of one person is really. securing the liberty of the intended victims. To curb the freedom of the saboteur of surreptitiously removing the fish plates from the railway lines is to ensure the safety and liberty of movement of the numerous innocent and unsuspecting passengers. Therefore, restraints on liberty should be judged not only subjectively as applied to a few individuals who come within their opera- tions but also objectively as securing the liberty of a far greater number of individuals. Social interest in individu- al 293 liberty may well have to be subordinated to other greater social interests. If a law ensures and protects the greater social interests then such law will be a wholesome and beneficent law although it may infringe the liberty of some individuals, for it will enure for the greater liberty of the rest of the members of the society. At the same time, our liberty has also to be guarded against executive, legislative as well as judicial usurpation of powers and prerogatives. Subject to certain restraints on individuals and reasonable checks on the State every person has a varie- ty of personal liberties too numerous to be cataloged. As will be seen more fully hereafter, our Constitution has recognised personal liberties as fundamental rights. It has guaranteed some of them under article 19 (1) but put re- straints on them by clauses (2) to (6). It has put checks on the State’s legislative powers by articles 21 and 22. It has by providing for preventive detention, recognised that individual liberty may be subordinated to the larger social interests.

Turning now to the Constitution I find that Part III is headed and deals with “Fundamental Rights” under seven heads, besides, “General” provisions (articles 12 and 13), namely “Right to Equality” (articles 14 to 18), “Right to Freedom” (articles 19 to 22), “Right against Exploitation” (articles 23 and 24), “Right to Freedom of Religion” (articles 25 to 28), “Cultural and Educational Rights” (articles 29 and 30), “Right to Property” (article 31), “Right to Constitutional Remedies” (articles 32 to 35).

Under the heading “Right to Freedom” are grouped four arti- cles, 19 to 22. Article 19 (1) is in the following terms :– ” (1) 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 294 (g) to practise any profession, or to carry on any occupation, trade or business.” It will be noticed that of the seven rights protected by clause (1) of article 19, six of them, namely, (a), (b), (c), (d), (e) and (g) are what are said to be rights at- tached to the person (jus personarum). The remaining item, namely, (f) is the right to property (jus rerum). If there were nothing else in article 19 these rights would have been absolute rights and the protection given to them would have completely debarred parliament or any of the State Legisla- tures from making any law taking away or abridging any of those rights. But a perusal of article 19 makes it abun- dantly clear that none of the seven rights enumerated in clause (1) is an absolute right, for each of these rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in the several clauses (2) to (6) of that article. Those clauses save the power of the State to make laws imposing certain specified restrictions on the several rights. The nett result is that the unlimit- ed legislative power given by article 246 read with the different legislative lists in the Seventh Schedule is cut down by the provisions of article 19 and all laws made by the State with respect to these rights must, in order to be valid, observe these limitations. Whether any law has in fact transgressed these limitations is to be ascertained by the Court and if in its view the restrictions imposed by the law are greater than what is permitted by clauses (2) to (6) whichever is applicable the Court will declare the same to be unconstitutional and, therefore, void under article 13.

Here again there is scope for the application of the “intel- lectual yardstick” of the Court. If, however, the Court finds, on scrutiny, that the law has not overstepped the constitutional limitations, the Court will have to uphold the law, whether it likes the law or not.

The first part of the argument is put broadly, namely, that personal liberty is generally guaranteed by the Consti- tution by article 19 (1) and that the Preventive Detention Act, 1950, has imposed unreasonable 295 restrictions thereon in violation of the provisions of clauses (2) to (6) of that article. The very first question that arises, therefore, is as to whether the freedom of the person which is primarily and directly suspended or de- stroyed by preventive detention is at all governed by arti- cle 19 (1). If personal liberty as such is guaranteed by any of the sub-clauses of article 19 (1) then why has it also been protected by article 21 ? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19 (1) and article 21 gives only an additional protection by prescrib- ing the procedure according to which that right may be taken away. I am unable to accept this contention. If this argument were correct, then it would follow that our Consti- tution does not guarantee to any person, citizen or non- citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub-clauses of clause (1) of article 19. It is retorted in reply that no constitution or human laws can guarantee life which is the gift of God who alone can guar- antee and protect it. On a parity of reasoning no Constitu- tion or human laws can in that sense guarantee freedom of speech or free movement, for one may be struck dumb by disease or may lose the use of his legs by paralysis or as a result of amputation. Further, what has been called the procedural protection of article 21 would be an act of supererogation, for when God takes away one’s life, whatever opportunity He may have had given to Adam to explain his conduct before sending him down, He is not likely in these degenerate-days to observe the requirements of notice or fair trial before any human tribunal said to be required by article 21. The fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection to life as a substantive right. So does article 31 of the Japanese Constitution of 1946. There is no reason why our Constitution should not do the same. The truth is that article 21 has given that protection to life as a substan- tive right and that, as will be seen hereafter, that article properly understood does not purport to prescribe any par- ticular procedure at all. The 38 296 further astounding result of the argument of counsel for the petitioner will be that the citizen of India will have only the rights enumerated in article 19, clause (1) and no other right attached to his person. As I have already stated, besides the several rights mentioned in the several sub- clauses of article 19 (1) there are many other personal liberties which a free man, i.e., a man who has the freedom of his person, may exercise. Some of those other rights have been referred to by Harries C.J. of Calcutta in his unreported judgment in Miscellaneous Case No. 166 of 1950 (K.shitindra v. The Chief Secretary of West Bengal) while referring the case to a Full Bench in the following words :– “It must be remembered that a free man has far more and wider rights than those stated in article 19 (1) of the Constitution. For example, a free man can eat what he likes subject to rationing laws, work as much as he likes or idle as much as he likes. He can drink anything he likes subject to the licensing laws and smoke and do a hundred and one things which are not included in article 19. If freedom of person was the result of article 19, then a free man would only have the seven rights mentioned in that article. But obviously the free man in India has far greater rights.” I find myself in complete agreement with the learned Chief Justice on this point. If it were otherwise, the citizen’s right to eat what he likes will be liable to be taken away by the executive fiat of the Civil Supply Depart- ment without the necessity of any rationing laws. The Government may enforce prohibition without any prohibition laws or licensing laws and so on. I cannot accept that our Constitution intended to give no protection to the bundle of rights which, together with the rights mentioned in sub- clauses (a) to (e) and (g) make up personal liberty. In- deed, I regard it as a merit of our Constitution that it does not attempt to enumerate exhaustively all the personal rights but uses the compendious expression “personal liber- ty” in’ article 21, and protects all of them.

It is pointed out that in the original draft the word “liberty” only was used as in the American 297 Constitution but the Drafting Committee added the word “personal” to make it clear that what was being protected by what is now article 21 was not what had already been pro- tected by what is now article 19. If it were permissible to refer to the Drafting Committee’s report, it would be anoth- er answer to the contentions of learned counsel for the petitioner that personal liberty as a substantive right was protected by article 19. I do not, however, desire to base my judgment on the Drafting Committee’s report and I express no opinion as to its admissibility. Whatever the intentions of the Drafting Committee might have been, the Constitution as finally passed has in article 21 used the words “personal liberty” which have a definite connotation in law as I have explained. It does not mean only liberty of the person but it means liberty or the rights attached to the person (jus personarum). The expressions “freedom of life” or “personal liberty” are not to be found in article 19 and it is strain- ing the language of article 19 to squeeze in personal liber- ty into that article. In any case the right to life cannot be read into article 19.

Article 19 being confined, in its operation, to citizens only, a non-citizen will have no protection for his life and personal liberty except what has been called the procedural protection of article 21. If there be no substantive right what will the procedure protect ? I recognise that it is not imperative that a foreigner should have the same privileges as are given to a citizen, but if article 21 is construed in the way I have suggested even a foreigner will have equal protection for his life and personal liberty before the laws of our country under our Constitution. I am unable, there- fore, for all the reasons given above, to agree that person- al liberties are the result of article 19 or that that article purports to protect all of them.

It is next urged that the expression “personal liberty” is synonymous with the right to move freely and, therefore, comes directly under article 19 (1) (d). Reference is made to the unreported dissenting judgment of Sen J. of Calcutta in Miscellaneous Case No. 166 of 1950 while referring that case to a Full Bench.

298 In his judgment Sen J. quoted the following passage from Blackstone’s Commentaries :– “Next to personal security the law of :England regards, asserts and preserves, the personal liberty of individuals.

This personal liberty consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” (Page 73 of George Chase’s Edition (4th Edition) of Blackstone, Book I, Chapter I.

On the authority of the above passage the learned Judge concluded that personal liberty came within article 19 (1)(d). I am unable to agree with the learned Judge’s con- clusion. On a perusal of Chapter I of Book I of Black- stone’s Commentaries it will appear that the]earned commen- tator divided the rights attached to the person (jus person- arum) into two classes, namely, “personal security” and “personal liberty.” Under the head “personal security” Blackstone included several rights, namely, the rights to’ life, limb, body, health and reputation, and under the head “personal liberty” he placed only the right of free move- ment. He first dealt with the several rights classified by him under the head “personal security” and then proceeded to say that next to those rights came personal liberty which according to his classification consisted only in the right of free locomotion. There is no reason to suppose that in article 21 of our Constitution the expression “personal liberty” has been used in the restricted sense in which Blackstone used it in his Commentaries. If “personal liber- ty” in article 21 were synonymous with the right to move freely which is mentioned in article 19 (1) (d), then the astounding result will be that only the last mentioned right has what has been called the procedural protection of arti- cle 21 but none of the other rights in the other sub-clauses of article 19 (1) has any procedural protection at all.

According to learned counsel for the petitioner the proce- dure required by article 21 consists of notice and a right of hearing before an impartial tribunal. Therefore, accord- ing to him, a man’s right of movement cannot be taken away without giving him notice and a fair trial 299 before an impartial tribunal but he may be deprived of his freedom of speech or his property or any of his other rights without the formality of any procedure at all. The proposi- tion has only to be stated to be rejected. In my judgment, article ’19 protects some of the important attributes of personal liberty as independent rights and the expression “personal liberty” has been ‘used in article 21 as a compen- dious term including within its meaning all the varieties of rights which go to make up the personal liberties of men.

Learned counsel for the petitioner next contends that personal liberty undoubtedly means or includes the freedom of the person and the pith and substance of the freedom of the person is right to move about freely and consequently a preventive detention law which destroys or suspends the freedom of the person must inevitably destroy or suspend the right of free movement and must necessarily offend against the protection given to the citizen by article 19 (1)(d) unless it satisfies the test of reasonableness laid down in clause (5). The argument is attractive and requires serious consideration as to the exact purpose and scope of sub- clause (d) of article 19 (1).

There are indications in the very language of article 19 (1) (d) itself that its purpose is to protect not the gener- al right of free movement which emanates from the freedom of the person but only a specific and ‘limited aspect of it, namely, the special right of a free citizen of India to move freely throughout the Indian territory, i.e., from one State to another within the Union. In other words, it guarantees, for example, that a free Indian citizen ordinarily residing in the State of West Bengal will be free to move from West Bengal to Bihar or to reside and settle in Madras or the Punjab without any let or hindrance other than as provided in clause (5). It is this special right of movement of the Indian citizen in this specific sense and for this particu- lar purpose which is protected by article 19 (1) (d). It is argued on the authority of a decision of a Special Bench of the Calcutta High Court presided over by Sen J. in Sunil Kumar v. The Chief 300 Secretary of West Bengal (1) that the words “through-. out the territory of India” occurring in that sub-clause only indicate that our Constitution does not guarantee to its citizens the right of free movement in or into foreign territory and that those words have been added to save passport restrictions. I am unable to accept this interpre- tation. Our Constitution cannot possibly give to any of its citizens any right of free movement in a foreign country and it was wholly superfluous to specifically indicate this in the Constitution, for that would have gone without saying.

The words “throughout the territory of India” are not used in connection with most of the other sub-clauses of clause (1) of article 19. Does such omission indicate that our Constitution guarantees to its citizens freedom of speech and expression, say, in Pakistan ? Does it guarantee to. its citizens a right to assemble or to form associations or unions in a foreign territory ? Clearly not. Therefore, it was not necessary to use those words in sub-clause (d) to indicate that free movement in foreign countries was not being guaranteed. It is said that by the use of those words the Constitution makes it clear that no1 guarantee was being given to any citizen with regard to emigration from India without a passport and that the freedom of movement was restricted within the territory of India. Does the omission of those words from article 19 (1) (a) indicate that the citizen of India has been guaranteed such freedom of speech and expression as will enable him to set up a broadcasting station and broadcast his views and expressions to foreign lands without a licences ? Clearly not. Dropping this line of argument and adopting a totally new line of argument it is said that by the use of the words “throughout the territory of India” the Constitution indicates that the widest right of free movement that it could possibly give to its citizens has been given. Does. then, the omission of those words from the other subclauses indicate that the Constitution has kept back some parts of those rights even beyond the limits of the qualifying clauses that follow ? Do not those other rights prevail throughout the Indian territory ? (1) 54 C.W.N. 394.

301 Clearly they do, even without those words. Therefore, those words must have been used in sub-clause (d) for -some other purpose. That other purpose, as far as I can apprehend it, is to indicate that free movement from one State to another within the Union is protected so that Parliament may not by a law made under Entry 81 in List I curtail it beyond the limits prescribed by clause (5) of article 19. Its purpose, as I read it, is not to provide protection for the general right of free movement but to secure a specific and special right of the Indian citizen to move freely throughout the territories of India regarded as an independent additional right apart from the general right of locomotion emanating from the freedom of the person. It is a guarantee against unfair discrimination in the matter of free movement of the Indian citizen throughout the Indian Union. In short, it is a protection against provincialism. It has nothing to do with the freedom of the person as such. That is guaranteed to every person, citizen or otherwise, in the manner and to the extent formulated by article 21.

Clause (5) of article 19 qualifies sub-clause (d) of clause (1) which should, therefore, be read in the light of clause (5). The last mentioned clause permits the State to impose reasonable restrictions on the exercise of the right of free movement throughout the territory of India as ex- plained above. Imposition of reasonable restrictions clearly implies that the right of free movement is not entirely destroyed but that parts of the right remain. This reasona- ble restriction can be imposed either in the interest of the general public or for the protection of the interests of any Scheduled Tribe. The Scheduled Tribes usually reside in what are called the Scheduled Areas. The provision for imposing restriction on the citizens’ right of free movement in the interests of the Scheduled Tribes clearly indicates that the restriction is really on his right of free movement into or within the Scheduled Areas. It means that if it be found necessary for the protection of the Scheduled Tribes the citizens may be restrained from entering into or moving about in the Scheduled Areas, although they are left quite free to move about elsewhere. This restraint may well be 302 necessary for the protection of the members of the, Sched- uled Tribes who are generally impecunious and constitute a backward class. They may need protection against money- lenders or others who may be out to exploit them. They may have to be protected against their own impecunious habits which may result in their selling or mortgaging their hearths and homes. Likewise, the free movement of citizens may have to be restricted in the interest of the general public. A person suffering from an infectious disease may be prevent from moving about and spreading the disease. and regulations for his segregation in the nature of quarantine may have to be introduced. Likewise, healthy people may be prevented, in the interests of the general public, from entering a plague-infected area. There may be protected places, e.g., forts or other strategic places, access where- to may have to be regulated or even prohibited in the inter- ests of the general public. The point to be noted, however, is that when free movement is thus restricted, whether in the interest of the general public or for the protection of the Scheduled Tribes, such restriction has reference gener- ally to a certain local area which becomes the prohibited area but the right of free movement in all other areas in the Union is left unimpaired. The circumstance that clause (5) contemplates only the taking away of a specified area and thereby restricting the field of the exercise of the right conferred by subclause (d) of clause (1) indicates to my mind that subclause (d)is concerned, not with the freedom of the person or the general right of free movement but with a specific aspect of it regarded as an independent right apart from the freedom of the person. In other words in sub-clause (d)the real emphasis is on the words “throughout the territory of India.” The purpose of article 19 (1) (d) is to guarantee that there shall be no State barrier. It gives protection against provincialism. It has nothing to do with the freedom of the person as such.

Finally, the ambit and scope of the rights protected by article 19 (1) have to be considered. Does it protect the right of free movement and the other 303 personal rights therein mentioned in all circumstances irrespective of any other consideration ? Does it not postulate a capacity to exercise the rights ? Does its protection continue even though the citizen lawfully loses his capacity for exercising those rights ? How can the continuance of those personal rights be compatible with the lawful detention of the person ? These personal rights and lawful detention cannot go together. Take the case of a person who has been properly convicted of an offence punish- able under a section of the Indian Penal Code as to the reasonableness of which there is no dispute. His right to freedom of speech is certainly impaired. Under clause (2) the State may make a law relating to libel, slander, defama- tion, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. Any law on any of these matters contemplated by this clause certainly must have some direct reference to speech and expression. It means that the law may directly curtail the freedom of speech so that the citizen may not talk libel or speak contemptuously of the Court or express indecent or immoral sentiments by speech or other forms of expression or utter seditious words. To say that every crime undermines the security of the State and, therefore, every section of the Indian Penal Code, irrespective of whether it has any reference to speech or expression, is a law within the meaning of this clause is wholly unconvincing and betrays only a vain and forlorn attempt to find an explanation for meeting the argument that any conviction by a Court of law must necessarily infringe article 19 (1) (a). -There can be no getting away from the fact that a detention as a result of a conviction impairs the freedom of speech far beyond what is permissible under clause (2) of article 19. Likewise a detention on lawful conviction impairs each of the other personal rights men- tioned in sub-clauses (b) to (e) and (g) far beyond the limits of clauses (8) to (6). The argument that every section of the Indian Penal Code irrespective of whether it has any reference to any of the rights referred to in sub- clauses (b) to (e) and (g) is a law imposing 304 reasonable restriction on those several rights has not even the merit of plausibility. There can be no doubt that a detention as a result of lawful conviction must necessari- ly impair the fundamental personal rights guaranteed by article 19 (1) far beyond what is permissible under clauses (2) to (6) of that article and yet nobody can think of questioning the validity of the detention or of the section of the Indian Penal Code under which the sentence was passed. Why ? Because the freedom of his person having been lawfully taken away, the convict ceases to be entitled to exercise the freedom of speech and expression or any of the other personal rights protected by clause (1) of article

19. On a parity of reasoning he cannot, while the detention lasts, exercise any other personal right, e.g., he cannot eat what he likes or when he likes but has to eat what the Jail Code provides for him and at the time when he is by Jail regulations required to eat. Therefore, the conclusion is irresistible that the rights protected by article 19 (1), in so far as they relate to rights attached to the person, i.e., the rights referred to in sub-clauses (a) to (e) and (g), are rights which only a free citizen, who has the freedom of his person unimpaired, can exercise. It is pointed out, as a counter to the above reasonings, that detention as a result of a lawful conviction does not deprive a person of his right to acquire or hold or dispose of his property mentioned in sub-clause (f). The answer is simple, namely, that that right is not a right attached to the person (jus personrum) and its existence is not depend- ent on the freedom of the person. Loss of freedom of the person, therefore, does not suspend the right to property.

But suppose a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and cannot complain that his fundamental right under sub-clause (f) of clause (1) of article 19 has been infringed. It follows that the rights enumerated in article 19 (1) subsist while the citizen has the legal capacity to exercise them. If his capacity to exercise them is gone, by reason of a lawful conviction with respect to the rights 305 in sub-clauses (a) to (e) and (g), or by reason of a lawful compulsory acquisition with respect to the right in sub- clause (f), he ceases to have those rights while his inca- pacity lasts. It further follows that if a citizen’s free- dom of the person is lawfully taken away otherwise than as a result of a lawful conviction for an offence, that citizen, for precisely the same reason, cannot exercise any of the rights attached to his person including those enumerated in sub-clauses (a) to (e) and (g) of article 19 (1). In my judgment a lawful detention, whether punitive or preventive, does not offend against the protection conferred by article 19 (1) (a) to (e) and (g), for those rights must necessarily cease when the freedom of the person is lawfully taken away.

In short, those rights end where the lawful detention be- gins. So construed, article 19 and article 21 may, there- fore, easily go together and there is, in reality, no con- flict between them. It follows, therefore, that the validi- ty or otherwise of preventive detention does not depend on, and is not dealt with by, article 19.

To summarise, the freedom of the person is not the result of article 19. Article 19 only deals with’ certain particu- lar rights which, in their origin and inception, are attributes of the freedom of the person but being of great importance are regarded as specific and independent rights.

It does not deal with the freedom of the person as such.

Article 19 (1) (d) protects a specific aspect of the right of free locomotion, namely, the right to move freely throughout the territory of India which is regarded as a special privilege or right of an Indian citizen and is protected as such. The protection of article 19 is co-termi- nous with the legal capacity of a citizen to exercise the rights protected thereby, for sub-clauses (a) to (e) and (g) of article 19 (1) postulate the freedom of the person which alone can ensure the capacity to exercise the rights pro- tected by those sub-clauses. A citizen who loses the free- dom of his person by being lawfully detained, whether as a result of a conviction for an offence or as a result of preventive detention loses his capacity to exercise those rights and, therefore, has none of the rights which sub- clauses (a) to (e) and (g) may protect.

306 In my judgment article 19 has no bearing on the question of the validity or otherwise of preventive detention and, that being so, clause (5) which prescribes a test of reasonable- ness to be defined and applied by the Court has no applica- tion at all.

Article 19 being thus out of the way, I come to article 20 which is concerned with providing protection against what are well known as ex post facto laws, double jeopardy and self-incrimination. This article constitutes a limitation on the absolute legislative power which would, but for this article, be exercisable by Parliament or the State Legisla- tures under article 246 read with the legislative lists. If the Legislature disobeys this limitation the Court will certainly prevent it. Article 20 has no bearing on preven- tive detention laws and I pass on.

Article 21 runs thus:

“21. No person shall be deprived of his life or person- al liberty except according to procedure established by law.” The contention of learned counsel for the petitioner is that by this article the Constitution offers to every per- son, citizen or non-citizen, only a procedural protection.

According to the argument, this article does not purport to give any protection to life or personal liberty as a sub- stantive right but only prescribes a procedure that must be followed before a person may be deprived of his life or personal liberty. I am unable to accept this contention.

Article 21, as the marginal note states, guarantees to every person “protection of life and personal liberty.” As I read it, it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all. That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution. The avowed object of the article, as I apprehend it, is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right. The right to life and 307 personal liberty protected by article 21 is not an absolute right but is a qualified right–a right circumscribed by the possibility or risk of being lost according to procedure established by law. Liability to deprivation according to procedure established by law is in the nature of words of limitation. The article delimits the right by a reference to its liability to deprivation according to procedure estab- lished by law and by this very definition throws a corre- sponding obligation on the State to follow a procedure before depriving a man of his life and personal liberty.

What that procedure is to be is not within the purpose or purview of this article to prescribe or indicate.

The claim of learned counsel for the petitioner is that article 21 prescribes a procedure. This procedure, accord- ing to learned counsel, means those fundamental immutable rules of procedure which are sanctioned or well established by principles of natural justice accepted in all climes and countries and at all times. Apart from the question whether any rule of natural procedure exists which conforms to the notions of justice and fair play of all mankind at all times, it has to be ascertained whether the language of article 21 will permit its introduction into our Constitu- tion. The question then arises as to what is the meaning of the expression “procedure established by law.” The word “procedure” in article 21 must be taken to signify some step or method or manner of proceeding leading up to the depriva- tion of life or personal liberty. According to the language used in the article, this procedure has to be “established by law.” The word “establish” according to the Oxford English Dictionary, Vol. III, p. 297, means, amongst other things, “to render stable or firm ; to strengthen by materi- al support; to fix, settle, institute or ordain permanently by enactment or agreement.” According to Dr. Annandale’s edition of the New Gresham Dictionary the word “establish,” means, amongst other things, “to found permanently; to institute; to enact or decree; to ordain; to ratify; to make firm.” It follows that the word “established” in its ordi- nary natural sense means, amongst other things, “enacted.” “Established by law” will, 308 therefore, mean “enacted by law.” If this sense of the word “established” is accepted, then the word “law” must mean State-made law and cannot possibly mean. the principles of natural justice, for no procedure can be said to have ever been “enacted” by those principles. When section 124-A of the Indian Penal Code speaks of “Government established by law,” surely it does not mean “Government set up by natural justice.” Therefore, procedure established by law must, I apprehend, be procedure enacted by the State which, by its definition in article 12, includes parliament. There is no escape from this position if the cardinal rule of construc- tion, namely, to give the words used in a statute their ordinary natural meaning, is applied. And this construction introduces no novelty or innovation, for at the date of the Constitution the law of procedure in this country. both civil and criminal, was mainly if not wholly, the creature of statute. The Hindu or Muhammadan laws of procedure were abrogated and replaced by the Code of Civil Procedure or the Code of Criminal Procedure. Therefore, procedure established by law is quite compatible with procedure enact- ed by law. If, however, the word “established” is taken to mean “sanctioned” or “settled” or “made firm” then the question will arise as to the meaning of the word “law” in that context. Reference is made to Salmond’s Jurisprudence, 10th Edition, p. 37, showing that the term “law” is used in two senses and it is suggested that the word “law” in the expression “established by law “means law in its abstract sense of the principles of natural justice. It is “jus” and not “lex,” says learned counsel for the petitioner. It is pointed out that both the English and the Indian law in many cases, some of which have been cited before us, have recog- nised and applied the principles of natural justice and that this Court should do the same in interpreting tim provisions of our Constitution. I find it difficult to let in princi- ples of natural justice as being within the meaning of the word “law,” having regard to the obvious meaning of that word in the other articles. Article 14 certainly embodies a principle of natural justice which ensures to.

309 every person equality before the law. When natural jus- tice speaks of and enjoins equality- before the law, that law must refer to something outside natural justice, and must mean the State-made laws. It is only when the State law gives equality to every person that that law is said to be in accordance with natural justice. There can be no doubt that the words “in accordance with law” in article 17 have reference to State law. Likewise, the word “law” in article 20 (1) can mean nothing but law made by the State.

The same remark applies to the words “in accordance with law” in articles 23, 31 and 32. Natural justice does not impose any tax and, therefore, the word “law” in articles 265 and 286 must mean State-made law. If this be the correct meaning of the word “law” then there is no scope for intro- ducing the principles of natural justice in article 21 and “procedure established by law” must mcan procedure estab- lished by law made by the State which, as defined, includes Parliament and the Legislatures of the States.

We have been referred to a number of text books and decisions showing the development of the American doctrine of “due process of law” and we have been urged to adopt those principles in our Constitution. The matter has to be considered against its historical background. The English settlers in different parts of America had carried with them the English common law as a sort of personal law regulating their rights and liberties inter se as well as between them and the State. After the War of Independence the Constitu- tions of the United States were drawn up in writing. The majority of those who framed the Constitution were lawyers and had closely studied the Commentaries of the great Eng- lish jurist Blackstone, who in his famous commentaries had advocated the separation of the three limbs of the State, namely, the executive, the legislature and the judiciary.

Montesquit’s Spirit of Laws had already been published wherein he gave a broader and more emphatic expression to the Aristotelian doctrine of separation of powers. The experience of the repressive laws of Parliament had im- pressed upon the framers of the American Constitution the 310 belief that it was the habit of all legislative bodies to grasp and exercise powers that did not belong to them. The interference of the colonial governors with legislation and the judiciary was also real. This sad experience coupled with the political philosophy of the time induced the fram- ers of the American Constitutions to adopt safeguards not only against the executive but also against the legislature.

(See Munro on the Government of the United States, 5th Edition, Chapter IV, p. 53 et seq.). Says Judge Cooley in his Constitutional Limitations, 6th Edition, Vol. II, Chap- ter XI, p. 755:

“The people of the American States, holding the sover- eignty in their own hands, have no occasion to exact any pledges from any one for a due observation of individual rights; but the aggressive tendency of power is such that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and re- enact this guarantee, and thereby adopt it as a principle of constitutional protection.” There can be little doubt that the people of the differ- ent States in America intended not to take any risk as to their life, liberty or property even from the legislature.

As Munro puts it at pp. 58-61 :– “The framers of the Constitution set boundaries to the powers of the Congress, and it was their intent that these limitations should be observed. But how was such observance to be enforced by the Courts ? The statesmen of 1767 did not categorically answer that question.” The Constitution was silent and there was no express provision as to who was to serve as umpire in case the Congress overstepped the limits of its legislative powers.

By the 5th Amendment what is now known as the “due process clause” was introduced in the Federal Constitution and by the 14th Amendment a similar clause was adopted in the State Constitutions. Some of the State Constitutions used the words “due course of law,” some repeated the words of Magna Charta, namely, “the law of the land” but most of 311 them used the expression “due process of law.” All the expressions meant the same thing, namely, that no person should be deprived of his life, liberty or property except in due process of law. The Constitution by this clause gave the Supreme Court an opportunity to take upon itself the function of declaring the national laws unconstitutional.

And the Supreme Court, under the leadership of Chief Justice John Marshall, seized this opportunity and assumed the right to say the last word on questions of constitutionality, and possesses that right to-day: (Munro, p. 62).

The expression “due process of law” has been interpreted by the American Courts in different ways at different times. Carl Brent Swisher in his book on the Growth of Constitutional Power in the United States at p. 107 says, with reference to the development of the doctrine of due procedure:

“The American history of its interpretation falls into three periods. During the first period covering roughly the first century of Government under the Constitution “due process” was interpreted “principally as a restriction upon procedure–and largely the judicial procedure–by which the Government exercised its powers. During the second period,which, again roughly speaking, extended through 1936, “due process” was expanded to serve as a restriction not merely upon procedure but upon the substance of the activi- ties in which the Government might engage. During the third period extending from 1936 to date, the use of “due process” as a substantive restriction has been largely suspended or abandoned, leaving it principally in its original status as a restriction upon procedure.” In the guise of interpreting “due process of law” the American Courts went much further than even Lord Coke ever thought of doing. The American Courts gradually arrogated to themselves the power to revise all legislations. In the beginning they confined themselves to insisting on a due procedure to be followed before a person was deprived of his life, liberty or property. In course of time, “due process of law” came to be applied to personal liberty, to social control, to procedure 40 312 to jurisdiction and to substantive law: (Willis, p. 642).

In the words of Munro “due process of law” became a sort of palladium covering all manner of individual rights. A_II the while the Supreme Court refused to define the phrase, but used it to enable it to declare unconstitutional any Act of legislation which it thought unreasonable: (Willis, p.

657). In Holden v. Hardy (1) we find the following observa- tions:

“This Court has never attempted to define with precision the words’ due process of law ……………. It is suffi- cient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.”In Taylor v.

Peter (2) Bronson J. observed:

“The words ‘by the law of the land’ as used in the Constitution, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. The people would be made to say to the two Houses: ‘ You shall be vested with the legis- lative power of the. State, but no one shall be disenfran- chised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose. In other words you shall not do the wrong unless you choose to do it.'” It was thus that the Supreme Court of the United States firmly established its own supremacy over the other two limbs of the State, namely, the executive and the Congress.

In the words of John Dickinson quoted in Munro at p. 61, “The Judges of Aragon began by setting aside laws and ended by making them.” And all this sweeping development could only be possible because of the presence of one little word “due” which, in its content, knows no bound and is not subject to any fixed definition. Whenever a substantive law or some procedure laid down in any law did not find favour with the majority of the learned Judges of the Supreme Court it was not reasonableand, therefore, it was not “due.” (1) [1898] USSC 42; 169 U.S. 366 at p. 389. (2) 4 Hill 140, 145.

313 The very large and nebulous import of the word “due” was bound to result in anomalies, for what was not “due” on one day according to the Judges then constituting the Supreme Court became “due” say 20 years later according to the new Judges who then came to occupy the Bench, for the Court had to adapt the Constitution to the needs of the society which were continually changing and growing. The larger content of due process of law, which included both procedural and substantive due process of law, had of necessity to be narrowed down, for social interest in personal liberty had to give way to social interest in other matters which came to be considered to be of more vital interest to the commu- nity. This was achieved by the Supreme Court of the United States evolving the new doctrine of police powers–a pecul- iarly American doctrine. The police powers are nowhere exhaustively defined. In Chicago B. & Q. Ry. v. Drainage Commissioner (1) ,, police power” has been stated to “em- brace regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety.” Reference in this connection may be made to Cooley’s Constitutional Limitations, 8th Edition, Vol. II, p. 1223 and to Chapter XXVI of Willis at p. 727.

The nett result is that the all-inclusive and indefina- ble doctrine of due process of law has in America now been brought back to its original status of a procedural due process of law by the enunciation and application of the new doctrine of police power as an antidote or palliative to the former. Who knows when the pendulum will swing again.

Turning now to what has been called the procedural due process of law it will be found that the matter has been described in different languages in different cases. In Westervelt v. Gregg (2) Edwards J. defined it thus:

“Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules 204 u.s. 561,592. (2) 12 N.Y. 202.

314 and forms which have been established for the protection of private rights.” A more specific definition of the expression “the law of the land” meaning procedural due process was given by Web- ster appearing as counsel for the plaintiff in error in the Trustees of Dartmouth College v. Woodward (1):

“By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial.

The meaning is that every citizen shall hold his life, liberty, property, and. immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land.” Willis in Ch. XXIII, p. 661, says:

“The guarantee of due process of law as a matter of procedure means that no part of a person’s personal liberty, including ownership, shall be taken away from him except by the observance of certain formalities. Hence its object is the protection of the social interest in personal liberty.” At p. 662 Willis enumerates the requirements of the procedural due process of law as follows:(1) notice. (2) opportunity to be heard, (3) an impartial tribunal, and (4) an orderly course of procedure. In short, the procedural due process requires that a person who is to be deprived of his life, liberty or property shall have had “his day in Court.” This according to Willough by p. 736, means:

“(1) that he shall have had due notice, which may be actual or constructive, of the institution of the proceed- ings by which his legal rights may be affected; (2) that he shall be given a reasonable opportunity to appear and defend his rights, including the right himself to testify, to produce witnesses, and to introduce relevant documents and other evidence, (3) that the tribunal in or before which his rights are adjudicated is so constituted as to give reasona- ble assurance of its.

(1) [1819] USSC 7; 4 Wheaton 518 at p. 579; 4 L. Edn. 629 at p. 645.

315 honesty and impartiality; and (4) that it is a Court of competent jurisdiction.” It will be noticed that the fourth item of Willoughby is different from the fourth item of Willis. Such, in short, are the history of the development of the doctrine of the process of law in the United States and the requirements of the procedural due process as insisted on by the Supreme Court of that country.

Learned counsel for the petitioner before us does not contend that we should import this American doctrine of due process of law in its full glory but that we should adopt the procedural part of it and insist that no person shall be deprived of his life or personal liberty except by the observance of the formalities which justice and fair play require to be observed. The arguments of learned counsel for the petitioner are attractive and in the first blush certainly appeal to our sentiment but on serious reflection I find several insuperable objections to the introduction of the American doctrine of procedural due process of law into our Constitution. That doctrine can only thrive and work where the legislature is subordinate to the judiciary in the sense that the latter can sit in judgment over and review all acts of the legislature. Such a doctrine can have no application to a field where the legislature is supreme.

That is why the doctrine of “due process of law” is quite different in England where Parliament is supreme. This difference is pointedly described by Mathews J. in Joseph Hurtado v. People of California (1) at p. 531:

“The concessions of Magna Charta were wrung from the King as guarantees against oppression and usurpation of his prerogatives. It did not enter into the minds of the barons to provide security against their own body or in favour of the commons by limiting the power of Parliament, so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates and other arbitrary Acts of legisla- tion which occur so frequently in English history, were never regarded as inconsistent with the law of the land, for, notwithstanding what was attributed to Lord Coke in.

Bonham’s (1) [1884] USSC 84; (1883) 110 U.S. 516.

316 case, [8 Coke 115, 118 (a),] the omnipotence of Parliament over the Common Law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons.

In this country written Constitutions were deemed essen- tial to protect the rights and liberties of the people against the encroachments of power delegated to their gov- ernments and the provisions of Magna Charta were incorporat- ed in the bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial.” This basic distinction between the two systems should never be lost sight of, if confusion of thought is to be avoided. Although our Constitution has imposed some limita- tions on the legislative authorities, yet subject to and outside such limitations our Constitution has left our Parliament and the State Legislatures supreme in their respective legislative fields. In the main, subject to the limitations I have mentioned, our Constitution has preferred the supremacy of the Legislature to that of the Judiciary.

The English principle of due process of law is, therefore, more in accord with our Constitution than the American doctrine which has been evolved for serving quite a differ- ent system. The picturesque language of Bronson J. quoted above, while that is quite appropriate to the American Constitution which does not recognise the supremacy of the Congress, is wholly out of place in, and has no applica- tion to, a Constitution such as ours, which, subject only to certain restrictions, recognises the supremacy of the Legis- latures in their respective fields. In the next place, it is common knowledge that our Constitution-makers deliberate- ly declined to adopt the uncertain and shifting American doctrine of due process of law and substituted the words’ “except in due process of law” that were in the original draft by the more specific expression “except in accordance with procedure established by law.” To try to bring in the American doctrine, in spite of this fact, will be to stulti- fy the intention of the Constitution as expressed in 317 article 21. In the third place, in view of the plain meaning of the language of that article as construed and explained above it is impossible to let in what have been called the principles of natural justice as adopted in the procedural due process of law by the American Supreme Court. Again, even the all-pervading little word “due” does not find a place in article 21 so as to qualify the procedure. It speaks of procedure and not “due” procedure and, therefore, “the intellectual yardstick” of the Court is definitely ruled out. Finally, it will be incongruous to import the doctrine of due process of law without its palliative, the doctrine of police powers. It is impossible to read the last mentioned doctrine into article 21.

It has also been suggested as a compromise that this Court should adopt a middle course between the flexible principles of natural justice as adopted by the American doctrine of due process of law and the unbending rigidity of mere State-made laws. h is said that we have our Code of Criminal Procedure which embodies within its provisions certain salutary principles of procedure and we must insist that those underlying principles should be regarded as procedure established or settled by our positive law. But who will say what are those fundamental principles? What principles. do I reject as inessential and what shall I adopt as fundamental ? What is fundamental to me today may not appear to be so to another Judge a decade hence, for principles give way with changing social conditions. In America it was suggested that due process of law should be taken to mean the general body of common law as it stood at the date of the Constitution. In Bardwell v. Collins (1) it was negatived in the following words:

“‘Due process of law’ does not mean the general body of the law, common and statute, as it was at the time the Constitution took effect; for that would deny the legisla- ture power to change or amend the law in any particular.” The Court, however, brought in principles of (1) 44 Minn. 97.

318 natural justice under the due process clause. To sanctify what I may to-day regard as the basic principles underlying our Code of Criminal Procedure will be to make them immuta- ble and to prevent the legislature even to improve upon them. This is nothing but imposing on the legislature a limitation which the Constitution has not placed on it. I do not think it is a permissible adventure for the Court to undertake. It is a dangerous adventure, for it will bring about stagnation which means ruin. We must accept the Con- stitution which is the supreme law. The Constitution has by article 21 required a procedure and has prescribed certain minimum requirements of procedure in article 22. To add to them is not to interpret the Constitution but to recast it according to our intellectual yardstick and our unconscious predilections as to what an ideal Constitution should be.

Article 21, in my judgment, only formulates a substan- tive fundamental right to life and personal liberty which in its content is not an absolute right but is a limited right having its ambit circumscribed by the risk of its being taken away by following a procedure established by law made by the appropriate legislative authority and the proximate purpose of article 21 is not to prescribe any particular procedure. It is to be kept in mind that at the date when the Constitution came into effect we had the Indian Penal Code creating diverse offences and a conviction for any of them would deprive a person of his personal liberty. Under article 246 read with Entry 1 of the Concurrent List, Par- liament or any State Legislature could add more offences and create further means for taking away personal liberty. But all this deprivation of personal liberty as a result of a conviction could only be done by following the procedure laid down by the Code of Criminal Procedure. Again, at the date of this Constitution there were preventive detention laws in almost every province and a person could be deprived of his personal liberty under those laws. Those laws, however, provided a procedure of a sort which had to be followed. Therefore, before the Constitution came into force, personal liberty could be taken away 319 only by following the procedure enacted by the Criminal Procedure Code in the case of punitive detention or by the procedure enacted by the different Security Acts in case of preventive detention. Power, however, has been given to Parliament and the State Legislatures under article 246 read with Entry 2 of the Concurrent List to make laws with re- spect to Criminal Procedure. If that article stood by itself the Parliament or the State Legislature could repeal the whole of the Criminal Procedure Code and also do away even with the skeleton procedure provided in the Security Acts. If article 246 stood by itself then the appropriate legislative authority could have taken away the life and personal liberty of any person without any procedure at all.

This absolute supremacy of the legislative authority has, however, been cut down by article 21 which delimits the ambit and scope of the substantive right to life and person- al liberty by reference to a procedure and by article 22 which prescribes the minimum procedure which must be fol- lowed. In this situation the only power of the Court is to determine whether the impugned law has provided some proce- dure and observed and obeyed the minimum requirements of article 29. and if it has, then it is not for the Court to insist on more elaborate procedure according to its notion or to question the wisdom of the legislative authority in enacting the particular law, however harsh, unreasonable, archaic or odious the provisions of that law may be.

It is said that if this strictly technical interpreta- tion is put upon article 21 then it will not constitute a fundamental right at all and need not have been placed in the chapter on Fundamental Rights, for every person’s life and personal liberty will be at the mercy of the Legislature which, by providing some sort of a procedure and complying with the few requirements of article 22, may, at any time, deprive a person of his life and liberty at its pleasure and whim. There are several answers to this line of argument.

Article 21 as construed by me will, if nothing else, cer- tainly protect every person against the executive and as such will be as much a fundamental right deserving 411 320 a place in the Constitution as the famous 39th Chapter of the Magna Charta was and is a bulwark of liberty in English law. It appears to me that article 21 of our Constitution read with article 32 also gives us some protection even against the legislative authority in that a person may only be deprived of his life and personal liberty in accordance with procedure which, although enacted by it, must at least conform to the requirements of article 22. Subject to this limitation our parliament or any State Legislature may enact any law and provide any procedure it pleases for depriving a person of his life and personal liberty under article 21.

Such being the meaning of that article and the ambit and extent of the fundamental right of life and personal liberty which the people of this country have given unto themselves, any law for depriving any person of his life and personal liberty that may be made by the appropriate legislative authority under article 246 and in conformity with the requirements of article 22 does not take away or abridge any right conferred by article 21, for the very right conferred by that article is circumscribed by this possi- bility or risk and, therefore, such law cannot be regarded as violating the provisions of article 13 (2). Our Constitution is a compromise between Parliamentary supremacy of England and the supremacy of the Supreme Court of the United States. Subject to the limitations I have mentioned which are certainly justiciable, our Constitution has ac- cepted the supremacy of the legislative authority and, that being so, we must be prepared to face occasional vagaries of that body and to put up with enactments of the nature of the atrocious English statute to which learned counsel for the petitioner has repeatedly referred, namely, that the Bishop of Rochester’s cook be boiled to death. If Parliament may take away life by providing for hanging by the neck, logi- cally there can be no objection if it provides a sentence of death by shooting by a firing squad or by guillotine or in the electric chair or even by boiling in oil. A procedure laid down by the legislature may offend against the Court’s sense of justice and fair play 821 and a sentence provided by the legislature may outrage the Court’s notions of penology, but that is a wholly irrelevant consideration. The Court may construe and interpret the Constitution and ascertain its true meaning but once that is done the Court cannot question its wisdom or policy. The Constitution is supreme. The Court must take the Constitu- tion as it finds it, even if it does not accord with its preconceived notions of what an ideal Constitution should be. Our protection against legislative tyranny, if any, lies in ultimate analysis in a free and intelligent public opinion which must eventually assert itself.

The conclusion I have arrived at does not introduce any novelty, for in many other Constitutions the supremacy of the legislature is recognised in the matter of depriving a person of his life, liberty and property. The English Democratic Constitution is one in point. Take the Constitu- tion of the Irish Free State. Article 40 (4) (i) provides that no citizen shall be deprived of personal liberty save in accordance with law, and article 50 (5) guarantees that the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law. The words “in accordance with law” in both the above clauses must mean the same thing and I have no doubt in my mind, reading clause (5)that it means in accordance with the State-made law, for we have not been referred to any rule prescribed by natural justice regulating searches of, or entry into, dwelling houses. Article 107 (2) of the Czechoslovakian Constitution uses the words “in accordance with law” which, read with clause (1) of that article, obviously means the law to be made which will form part of the Constitution. Take the Constitution of the Free City of Danzig. Article74 of that Constitution which is in Part II headed “Fundamental Bights and Duties” provides as follows:

“The liberty of the person shall be inviolable. No limitation or deprivation of personal liberty may be imposed by public authority, except by virtue of a law.” 322 The word” law” clearly cannot, in the context,mcan princi- ples of natural justice- Again, article 75 of that Consti- tution protects the freedom of movement within the Free City and the right to stay and to settle at any place, to acquire real property and to earn a living. It concludes by saying that this right shall not be curtailed without legal sanctions. Legal sanctions, in this context, can only mean sanctions of the City laws. Article 114 of the Weimar Constitution is on the same lines and expressed in almost the same language as article 74 of the Danzig Constitution.

Take the Japanese Constitution of 1946 from which our arti- cle 21 is reputed to have been taken. Article XXXI of that Constitution says:

No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law.” Surely the words “except according to procedure established by law” in their application to the imposition of criminal penalty must mean State-made law and the same words in the same sentence in the same article cannot, according to ordi- nary rules of construction of statutes, mean a different thing in their application to deprivation of life or liber- ty. I am aware that it is not right to construe one Consti- tution in the light of another and that is not my purpose when I refer to the other Constitutions; but I do think that after reading the relevant provisions of other written Con- stitutions one sees quite clearly that there is no pressing special reason applicable to or inherent in written Consti- tutions which requires the importation of the principles of natural justice or of the American doctrine of due process of law into our Constitution. The several Constitutions referred to above have not adopted that American doctrine but have been content with leaving the life and liberty of their citizens to the care of the laws made by their legis- latures. It is no novelty if our Constitution has done the same. For all these reasons, in spite of the very able and attractive arguments of the learned counsel for the peti- tioner which I freely acknowledge, I am not convinced that there is any scope for the introduction into article 21 of our 323 Constitution of the doctrine of due process of law even as regards procedure. I may or may not like it, but that is the result of our Constitution as I understand it.

The learned Attorney-General has referred to certain debates in the Constituent Assembly on the original clause which has now become article 21, not as evidence to be used in interpreting the language of article 21 but as disclos- ing the historical background. His purpose, he says, is to show that the framers of our Constitution had the essential difference in the meaning of the phrases “due process of law” and “according to procedure established by law” clearly explained to them, that they knew that the former implied the supremacy of the judiciary and the latter the supremacy of the legislature and with all that knowledge they deliber- ately agreed to reject the former expression and adopt the latter. As, in my opinion, it is possible to interpret the language of article 21 on the ordinary rules of interpreta- tion of statutes, I do not think it is at all necessary to refer to the debates. As I do not propose to refer to, or rely on, the debates for the purposes of this case, I express no opinion on the question of the admissibility or otherwise of the debates.

I now pass on to article 22. The contention of learned counsel for the petitioner is that article 21 by reason of the last few words, “according to procedure established by law” attracts the four requirements of the American proce- dural due process of law as summarised by Willis to which reference has been made earlier, and that those require- ments, except to the extent they have been expressly abro- gated or modified by article 22, must be strictly followed before a person may be deprived of his life or personal liberties. I have already stated for reasons set forth above, that there is no scope for introducing any rule of natural justice or the American procedural due process of law or any underlying principle of our Code of Criminal Procedure into that article. This being the conclusion I have arrived at, the major premise assumed by learned coun- sel for the petitioner is missing and this 324 line of argument does not begin and cannot be accepted.

The learned Attorney-General, on the other hand. has at one stage of his argument, urged that article 21 has nothing to do with preventive detention at all and that preventive detention is wholly covered by article 22 (4) to (7) which by themselves constitute a complete code. I am unable to accede to this extreme point of view also. The true posi- tion, as I apprehend it, lies between the two extreme views.

Article 21, to my mind, gives protection to life and person- al liberty to the extent therein mentioned. It does not recognise the right to life and personal liberty as an absolute right but delimits the ambit and scope of the right itself The absolute right is by the definition in that article cut down by the risk of its being taken away in accordance with procedure established by law. It is this circumscribed right which is substantively protected by article 21 as against the executive as well as the legislature, for the Constitution has conditioned its depri- vation by the necessity for a procedure established by law made by itself. While subclauses (2) to (6) of article 19 have put a limit on the fundamental rights of a citizen, articles 21 and 22 have put a limit on the power of the State given under article 246 read with the legislative lists. Under our Constitution our life and personal liberty are balanced by restrictions on the rights of the citizens as laid down in article 19 and by the checks put upon the State by articles 21 and 22. preventive detention deprives a person of his personal liberty as effectively as does punitive detention and, therefore, personal liberty, circum- scribed as it is by the risk of its being taken away, re- quires protection against punitive as well as preventive detention. The language of article 21 is quite general and is wide enough to give its limited protection to personal liberty against all forms of detention. It protects a person against preventive detention by the executive without the sanction of a law made by the legislature. It prevents the legislature from taking away a person’s personal liberty except in accordance with procedure established by law, although such 325 law is to be by itself. If, as contended by the learned Attorney-General and held by me, article 19 only protects the rights of a free citizen as long as he is free and does not deal with total deprivation of personal liberty and if, as contended by the learned Attorney-General, article 21 does not protect a person against preventive detention then where is the protection for life and personal liberty as substantive rights which the procedural provisions of arti- cle 22 may protect ? What is the use of procedural protec- tion if there is no substantive right ? In my judgment article 21 protects the substantive rights by requiring a procedure and article 22 gives the minimum procedural pro- tection.

Clauses (1) and (2) of article 22 lay down the procedure that has to be followed when a man is arrested. They ensure four things: (a) right to be informed regarding grounds of arrest, (b) right to consult, and to be defended by, a legal practitioner of his choice, (c) right to be produced before a magistrate within 24 hours and (d) freedom from detention beyond the said period except by order of the magis- trate. These four procedural requirements are very much similar to the requirements of the procedural due process of law as enumerated by Willis. Some of these salutary protections are also to be found in our Code of Criminal Procedure. If the procedure has already been prescribed by article 21 incorporating the principles of natural justice or the principles underlying our Code of Criminal Procedure what was the necessity of repeating them in clauses (1) and (2) of article 22 ? Why this unnecessary overlapping ? The truth is that article 21 does not prescribe any particular procedure but in defining the protection to life and person- al liberty merely envisages or indicates the necessity for a procedure and article 22 lays down the minimum rules of procedure that even Parliament cannot abrogate or overlook.

This is so far as punitive detention is concerned. But clause (3) of article 22 expressly provides that none of the procedure laid down in clauses (1) and (2) shall apply to an alien enemy or to a person who is arrested or detained under any law providing for preventive detention. It is thus expressly 326 made clear that a detenu need not be produced before the magistrate and he is not to have the assistance of any lawyer for consultation or for defending him. Such being the express provision of our Constitution nobody can question its wisdom. So I pass on.

Clauses (4), (5), (6) and (7) of article 22 in terms relate to preventive detention. Article 246 authorises the appropriate legislature to make a law for preventive deten- tion in terms of Entry 9 in List I and/or Entry 3 in List III of the Seventh Schedule. On this legislative power are imposed certain limitations by article 22 (4) to (7).

According to this the legislature, whether it be Parliament or a State Legislature, is reminded that no law made by it for preventive detention shall authorise the detention of a person for a longer period than three months except in two cases mentioned in sub-clauses (a) and (b). The proviso to sub-clause (a) and sub-clause (b) refer to a law made only by Parliament under clause (7). Under clause (7) it is Parliament alone and not any State Legislature that may prescribe what are specified in the three subclauses of that clause. Although a State Legislature may make a law for preventive detention in terms of Entry 3 in List III of the Seventh Schedule no such law may authorise detention for more than three months unless the provisions of sub-clauses (a)and (b) of clause (4) sanction such detention. Even a law made by Parliament cannot authorise detention for more than three months unless it is a law made under the provi- sions of clause (7). In short, clause (4) of article 22 provides a limitation on the legislative power as to the period of preventive detention. Apart from imposing a limitation on the legislative power, clause (4) also pre- scribes a procedure of detention for a period longer than three months by providing for an advisory board. Then comes clause (5). It lays down the procedure that has to be fol- lowed when a person is detained under any law providing for preventive detention, namely, (a) the grounds of the order of detention must be communicated to the detenu as soon as may be, and (b) the detenu must be afforded the earliest opportunity of making a representation against 327 the order. The first requirement takes the place of notice and the second that of a defence or hearing. These are the only compulsory procedural requirements laid down by our Constitution. There is nothing to prevent the Legislature from providing an elaborate procedure regulating preventive detention but it is not obliged to do so. If some procedure is provided as envisaged by article 21 and the compulsory requirements of article 22 are obeyed and carried out nobody can, under our Constitution, as I read it, complain of the law providing for preventive detention.

Learned counsel for the petitioner concedes that the four requirements of procedural due process summarised by Willis will have to be modified in their application to preventive detention. Thus he does not insist on a prior notice before arrest, for he recognises that such a require- ment may frustrate the very object of preventive detention by giving an opportunity to the person in question to go underground. The provision in clause (5) for supplying grounds is a good substitute for notice. He also does not insist that the Tribunal to judge the reasonableness of the detention should be a judicial tribunal. He will be satis- fied if the tribunal or advisory board, as it is called in article 22 of the Constitution, is an impartial body and goes into the merits of the order of detention and its decision is binding on the executive government. He insists that the detenu must have a reasonable and effective oppor- tunity to put up his defence. He does not insist on the assistance of counsel, for that is expressly taken away by the Constitution itself. But he insists on what he calls an effective opportunity of being heard in person before an impartial tribunal which will be free to examine the grounds of his detention and whose decision should be binding alike on the detenu and the executive authority which detains.

The claim may be reasonable but the question before the Court is not reasonableness or otherwise of the provisions of article 22 (4) to (7). Those provisions are not justicia- ble, for they are the provisions of the Constitution itself which is supreme over everybody.

42 328 The Court can only seek to find out, on a proper construc- tion, what protection has in fact been provided. The Consti- tution has provided for the giving of the grounds of deten- tion although facts as distinguished from grounds may be withheld under clause (6) and the right of representation against the order of detention. It has provided for the duration of the detention. There the guaranteed fundamental procedural rights end. There is no provision for any trial before any tribunal. One cannot import the condition of a trial by any tribunal from the fact that a right of repre- sentation has been given. The right to make representation is nothing more than the right to “lodge objections” as provided by the Danzig Constitution and the Weimar Constitu- tion. The representations made will no doubt be considered by the Government. It is said a prosecutor cannot be himself the judge. Ordinarily, the orders of detention will in a great majority of cases be made by the District Magistrate or Sub-Divisional Officer or the Commissioner of Police. The representation of the detenu goes to the Government. Why should it be assumed that a high government official at the seat of the government will not impartially consider the representation and judge the propriety of the order of detention made by local officials ? Clause (5) does not imperatively provide for any oral representation which a hearing will entail. Indeed the exclusion of the provisions of clauses (1) and (2) negatives any idea of trial or oral defence. The Court may not, by temperament and training, like this at all but it cannot question the wisdom or the policy of the Constitution. In my judgment as regards pre- ventive detention laws, the only limitation put upon the legislative power is that it must provide some procedure and at least incorporate the minimum requirements laid down in article 22 (4) to (7). There is no limitation as regards the substantive law. Therefore, a preventive detention law which provides some procedure and complies with the require- ments of article 22 (4) to (7) must be held to be a good law, however odious it may appear to the Court to be.

329 Learned counsel for the petitioner contends -that the impugned Act does not comply with even the bare requirements of article 22 (4) to (7). It is pointed out that section 3 of the Act does not lay down any objective test but leaves it to the authority to define and say whether a particular person comes within the legislative heads. In other words, it is contended that Parliament has not legislated at all but has delegated its legislative powers to the executive authorities. I do not think there is any substance in this contention. In the first place this is not an objection as to procedure but to substantive law which is not open to the Court’s scrutiny. In the next place this contention over- looks the basic distinction between the delegation of power to make the law and the conferring of an authority and discretion as to its execution to be exercised under and in pursuance of the law. The impugned Act has specifically set forth an ascertainable standard by which the conduct of a particular person is to be judged by the detaining authori- ty.

It is next urged that section 12 of the Act does not comply with the requirements of clause (7) of article 22 for two reasons, namely– (i) that clause (7) contemplates a law prescribing 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 and then another law thereafter providing for preventive detention for a period longer than three months;

and (ii) that under clause (7) Parliament must prescribe both 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.

As regards the first point I do not see why Parliament must make two laws, one laying down the principles for longer detention and another for detention for such longer period. It may be that a State cannot provide for longer detention until Parliament 330 has made the law, but I can see no reason why Parliament cannot do both by the same Act. In fact, clause (4) (b) contemplates the detention itself to be in accordance with the provisions of any law made by Parliament under sub- clauses (a) and (b) of clause (7). Therefore, the detention can well be under the very law which the Parliament makes under sub-clauses (a) and (b) of clause (7). As to the second point the argument is that Parliament has a discre- tion under clause (7) to make a law and it is not obliged to make any law but when our Parliament chooses to make a law it must prescribe both 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. I am unable to construe clause (7) (a) in the way suggested by learned counsel for the petitioner. It is an enabling provision empowering Parliament to prescribe two things. Parliament may prescribe either or both. H a father tells his delicate child that he may play table tennis and badminton but not the strenuous game of football, it obviously does not mean that tim child, if he chooses to play at all, must play both table tennis and badminton. It is an option given to the child. Likewise, the Constitution gives to Parliament the power of prescribing two things. Parliament is not obliged to prescribe at all but if it chooses to prescribe it may prescribe either or both. Clause 7 (a), in my opinion, has to be read distributively as follows: The Parliament may prescribe the circumstance under which a person may be detained for a period longer than three months and Parlia- ment may prescribe the class or classes of cases in which a person may be detained for a period longer than three months. That appears to me to be consonant with sound rules of construction. Further, the circumstances and the class or classes of cases may conceivably coalesce. Indeed the Full Bench case No. 1 of 1950 before the Calcutta High Court (Kshitindra Narayan v. The Chief Secretary) itself indicates that the same provision may be read as circumstances or as a classification. In that case learned counsel conceded that section 12 had prescribed the circumstances but his com- plaint was that it had not 331 prescribed the class or classes of cases. The majority of the Court repelled this contention. One learned Judge howev- er, held that section 12 had prescribed the class or classes of cases but had not prescribed the circumstances. It is, therefore, clear that the classification itself may indicate the circumstances. Again, the classification may be on a variety of bases. It may be according to provinces the detenus come from. It may be according to the age of the detenus. It may be according to the object they are supposed to have in view or according to the activities they are suspected to be engaged in. In this case Parliament has taken five out of the six legislative heads and divided them into two categories. The detenus are thus classified ac- cording to their suspected object or activities endangering the several matters specified in the section. I do not see why classification cannot be made on the footing of the objectives of the detenus falling in some of the legislative heads, for each legislative head has a specific connotation well understood in law. If I am correct that there has been a classification then the fact that a person falls within one or the other class may well be the circumstances under which he may be detained for a period longer than three months. I do not consider it right, as a matter of con- struction, to read any further limitation in clause 7 (a) of article 22. In my judgment Par]lament was not obliged under clause (7) to prescribe both circumstances and classes, and in any case has in fact and substance prescribed both.

I am conscious that a law made by Parliament under article 22 (7)will do away with the salutary safeguard of the opinion of an advisory board. But it must be remembered that our Constitution itself contemplates that in certain circumstances or for certain class or classes of detenus even the advisory board may not be safe and it has trusted Parliament to make a law for that purpose. Our preference for an advisory board should not blind us to this aspect of the matter. It is true that circumstances ordinarily relate to extraneous things, like riots, commotion, 332 political or communal or some sort of abnormal situation and it is said that the framers of the Constitution had in mind some such situation when the advisory board might be done away with. It is also urged that they had in mind that the more dangerous types of detenus should be denied the privi- lege of the advisory board. I am free to confess that prescription of specific circumstances or a more rigid and definite specification of classes would have been better and more desirable. But that is crying for the ideal. The Constitution has not in terms put any such limitation as regards the circumstances or the class or classes of cases and it is idle to speculate as to the intention of the Constitution-makers, who, by the way, are the very persons who made this law. It is not for the Court to improve upon or add to the Constitution. If the law duly made by Parlia- ment is repugnant to good sense, public opinion will compel Parliament to alter it suitably.

Finally, an objection is taken that section 14 of the impugned Act takes away or abridges the right of the detenu to move this Court by appropriate proceedings. Both clauses (1) and (2) of article 32 speak of enforcement of rights conferred by Part III. The right to move this Court is given to a person not for the sake of moving only but for moving the Court for the enforcement of some rights conferred by Part III and this Court has been given power to issue direc- tions or orders or writs for the enforcement of any of such rights. In order, therefore, to attract the application of article 32, the person applying must first satisfy that he has got a right under Part III which has to be enforced under article 32. I have already said that article 19 does not deal with the freedom of the person. I have also said that articles 21 and 22 provide for protection by insisting on some procedure. Under article 22 (5) the authority making the order of detention is enjoined, as soon as may be, to communicate to the detenu the grounds on which that order has been made. This provision has some purpose, name- ly, that the disclosure of the grounds will afford the detenu the 333 opportunity of making a representation against the order.

Supposing the authority does not give any grounds at all as distinct from facts referred to in Clause (6). Surely, the detenu loses a fundamental right because he is prevented from making a representation against the order. of deten- tion. Suppose the authority hands over to the detenu a piece of paper with some scribblings on it which do not amount to any ground at all for detention. Then also the detenu can legitimately complain that his right has been infringed. He can then come to the Court to get redress under article 32, but he cannot show to the Court the piece of paper with the scribblings on it under section 14 of the Act and the Court cannot judge whether he has actually got the grounds which he is entitled to under article 22 (5).

In. such a case the detenu may well complain that both his substantive right under article 22 (5)’ as well as his right to constitutional remedies under article 32 have been in- fringed. He can complain of infringement of his remedial rights under article 32, because he cannot show that there has been an infringement of his substantive right under article 22 (5). It appears to me, therefore, that section 14 of the Act in so far as it prevents the detenu from disclosing to the Court the grounds communicated to him is not in conformity with Part III of the Constitution and is, therefore, void under article 13 (2). That section, howev- er, is clearly severable and cannot affect the whole Act.

On this question the views of Meredith C.J. and Das J. of Patna in Criminal Miscellaneous No. 124 of 1950 (Lalit Kumar Barman v. The State) and the majority of the learned Judges of the Calcutta High Court in Full Bench Case No. 1 of 1950 (Kshitindra Narayan v. The Chief Secretary) appear to be correct and sound.

For the reasons I have given above, in my opinion, the impugned Act is a valid law except as to section 14 in so far as it prevents the grounds being disclosed to the Court.

The petitioner before us does not complain that he has not got proper grounds. Further, the period of his detention under the impugned Act 334 has not gone beyond three months and, in the circumstances, this application should, in my opinion, stand dismissed.

Petition dismissed.

Agent for the petitioner: S. Subrahmanyam.

Agent for the State of Madras and Union of India: P.A.

Mehta.

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NANALAL ZAVER AND ANOTHER …PETITIONER
Vs.
BOMBAY LIFE ASSURANCE CO. LTD.AND OTHERS …RESPONDENT

DATE OF JUDGMENT:04/05/1950

BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN MUKHERJEA, B.K.

CITATION: 1950 AIR 172 1950 SCR 391

CITATOR INFO : R 1964 SC 136 (11) E&R 1981 SC1298 (64,109,110,111)

ACT:

MUKHERJEA and DAs, JJ.] $ Indian Companies Act (VII of 1913), s.

105-C–Company–Outsider trying to get control of management by purchasing shares –Issue of further shares–Offer of new shares to existing share holders–Validity of resolution and offer–Company in need of funds–Additional motive to prevent outsider getting control–Bona fides of resolution–Scope of 8. 105-C.

Held per KANIA CI.J., MAHAJAN, MUKHERJEA and DAS JJ.- that inasmuch as the shares resolved to be issued were offered to the existing shareholders only, and not to any outsider and these shares were also offered to the existing shareholders in proportion to the shares held by each member without making any discrimination between them the two requirements of section 105-C were complied with and the resolution and offer did not contravene that section even though 272 shares remained undistributed as a result of the offer of four new shares for every five shares.

49-A 392 Held also per KANIA C.,J. MAHAJAN, MUKHERJEA and DAS JJ.–that the fact that one of the motives of the direc- tors in issuing further shares was to prevent an outsider who had not yet become a shareholder, from getting control of the company did not render the resolution or the offer illegal inasmuch such a motive could not in itself be said to be not in the interests of the company and even assuming that such a motive was bad this additional motive could not render the resolution and offer illegal as the company was in fact in need of further funds and it was necessary in the interests of the company to issue further shares.

Judgment of the Bombay High Court affirmed.

APPEAL from the High Court of Judicature at Bombay:

(Civil Appeal No. LXIX of 1949).

This was an appeal from the judgment and decree of the High Court of Bombay dated 11th March, 1949, (Chagla C.J.

and Tendolkar J.) in Appeal No. 85 of 1947, confirming a decree of the said High Court in its Original Jurisdiction dated 10th November, 1947. The facts of the case and argu- ments of the counsel arc set out in the judgment.

N.P. Engineer (M.M. Desai and H.J. Umrigar with him) for the appellants.

M.C. Setalvad (G. N. Joshi with him) for respondents Nos. 1 to 6 and 8 and 9.

1950. May 4. The Court delivered the following Judg- ments:

KANIA C.J.–This is an appeal from the decision of the High Court of Judicature at Bombay. The respondent company was incorporated in 1908 with an authorised capital of Rs.

10 lakhs divided into 10,000 shares of Rs. 100 each. By 1945, 5,404 shares were subscribed and Rs. 25 per share were called on each of them. Four thousand five hundred and ninetysix shares out of the authorised capital thus remained unissued. From about July, 1944, Mr. Padampat Singhania, a businessman interested in many companies, began to purchase shares of the company from the holders thereof on a large scale. This naturally 393 put up the price of the shares considerably. On the 18th September, 1944, at a board meeting of the directors the chairman drew attention of his co-directors to the attempt thus made by an outsider to corner the shares of the compa- ny. In pursuance of a resolution passed at the meeting, the chairman issued a circular to the existing shareholders acquainting them of the true position and suggesting that if they wanted to part with the shares they might get in touch with the chairman. A circular was accordingly issued with the result that two rival groups were thus offering to buy shares from those who were desirous of selling them. The shares on which about Rs. 12 or 14 were paid per annum as dividend began to be quoted in the market at about Rs. 2,000 per share in March, 1945. Mr. Singhania had not submitted to the company for registration of the transfers to his name the shares purchased by him. In the meantime on the 8th January, 1945, an application was submitted by the company to the Examiner of Capital Issues for sanction of a fresh issue of capital. Several reasons were mentioned in that application to show why the company required additional capital. Such application had become necessary owing to war regulations. The Government granted the sanction on the 16th February, 1945, and the communication was received by the company on the 20th of February. On the next day a board meeting was held at which the directors decided to issue the remaining 4,596 shares at a premium of Rs. 75 per share and to call Rs. 25 per share on them. Pursuant to this resolution a circular was issued to the shareholders on the same day with copies of the form of application and renunci- ation referred to in the resolution and in the circular.

The shares were offered to the shareholders shown on the register of members in the ‘proportion of four further shares for every five shares held by them. The last date for submission of the application and payment was 10th March, 1945. The directors and their friends in the next few days applied and were allotted 1,648 shares. By the 6th, of March, 1945, 2,204 shares were allotted to shareholders who had applied for the same.

394 The appellants are two shareholders of the company.

They filed the suit, out of which this present appeal has arisen, “for themselves and all other aggrieved sharehold- ers of the company.” The defendants are the company and eight directors. It is contended in the plaint that the whole issue of these further shares and the idea of increas- ing the capital of the company was mala fide and with the object of retaining the control and management of the compa- ny in the hands of defendants 2 to 9. It is further con- tended that the resolution of the directors and the offer of shares contained in the circuluar letter were in contraven- tion of section 105-C of the Indian Companies Act. There were further prayers restraining the company and directors from proceeding with the allotment of shares. It was con- tended that the company was not in need of capital and the issue of further shares was not made bona fide for the benefit or in the interest of the company but had been made “merely with the object of retaining or securing the second defendant and his friends the control of the first defendant company.” Considerable evidence was led in the trial Court on the question of bona fides. The trial Court held that the issue of new shares was bona fide and the appellate Court has also come to the conclusion that the object of the directors in issuing the new shares was not merely with the object of retaining or securing to the second defendant and his friends the control of the first defendant company. They held that the company was in need of capital. The suit was consequently dismissed and that decision was affirmed by the High Court on appeal.

The decision of the appellate Court has been challenged before us on both grounds. The learned counsel appearing for the appellants did not contest the concurrent finding of fact of both the lower Courts to the effect that the company was in need of capital. It was however urged on their behalf that as the issue of these shares, although not admitted in the written 395 statement but admitted in the course of evidence, was for the purpose of preventing the control of the company going in the hands of Mr. Singhania, the directors had not acted bonn’ fide and solely in the interest of the company. I have read the judgment prepared by Das J. and I agree with his conclusion and line of reasoning on this part of the case. In my opinion, the contention of the appellants on this point was rightly rejected by both the lower Courts and that contention must fail.

That leaves the question whether the issue of these shares was in contravention of section 105-C of the Indian Companies Act. That section runs as follows:- ” Where the directors decide to increase the capital of the company by the issue of further shares such shares shall be offered to the members in proportion to the exist- ing shares held by each member (irrespective of class) and such offer shall be made by notice specifying the number of shares to which the member is entitled and limiting a time within which the offer if not accepted, will be deemed to be declined; and after the expiration of such time, or on receipt of an intimation from the member to whom, such notice is given that he declines to accept the shares of- fered, the directors may dispose of the same in such manner as they think most beneficial to the company.” On behalf of the respondents three answers were submit- ted. The first was that the section deals with the case of increase of capital by the directors beyond the authorised limit and as in the present case the new shares were issued within the authorized limit of capital, the section has no application. The second was that the terms of the section should be construed in a practical way and there was no difference between Regulation 42 in Table A of the Companies Act and section 105-C in respect of the scheme to offer the proportion of shares to the existing shareholders. It was argued that so long as they were offered “as nearly as circumstances admit” the directors had complied with the requirements of the section and therefore their action was not illegal. The third answer was that in fact the direc- tors had not committed any 50 396 breach of the terms of section 105-C up to now and therefore their action cannot be held to be illegal. In view of my conclusion on the third point it is not necessary to ex- press any opinion on the first two answers submitted on behalf of the respondents. It seems to me that section 105-C, interpreted strictly as contended by the appellants, casts on the directors two obligations. They have to offer the shares issued to the shareholders on the register of the company and not to anyone else, and secondly, the offer must be in the same proportion to all the shareholders and there should be no discrimination amongst them. It is not con- tended that by the offer made by the directors to the share- holders there has been any discrimination amongst the share- holders on the register of the company. It was contended on behalf of the appellant that the directors had failed to offer all the shares resolved to be issued by them to the existing shareholders and therefore the requirements of the section had not been complied with. It was argued that the directors having resolved to issue 4,596 shares, they had to offer that whole lot at once to the shareholders on the register and the result of the offer made by them was to retain in their hands 272-4/5 shares. In my opinion, this contention is unsound. By their resolution of the 21st February, 1945, the directors resolved to issue 4,596 shares out of the authorized capital of the company. They have offered shares to the existing shareholders in the propor- tion of four new shares to five shares held by them. Inas- much as the offer does not absorb the whole lot of 4,596 shares I am unable to construe the offer as an offer of the whole lot at once to the existing shareholders. Unless the whole lot of shares in pursuance of the. offer could be accepted and taken up I am unable to consider the offer contained in the circular as an offer of the 4,596 shares.

That however does not establish the contention of the appel- lants. I find nothing in the section to justify the conclu- sion that the directors must offer all the shares resolved to be issued in one lot to the shareholders. I can Conceive of. numerous cases where a limited company with a growing business does not 397 require its capital to be called up at once. For instance, soon after a company is formed it may issue shares of, say a lakh of rupees required for the construction of the build- ings, and after a year when it requires further capital for payment of machinery etc. it can issue further shares. I do not think the section as worded prevents the directors from issuing shares to existing shareholders from time to time in that way. As noticed before, the object of the section is to prevent discrimination amongst shareholders and prevent the directors from offering shares to outsiders before -they are offered to the shareholders. So long as these two requirements are complied with, the action of the directors in selecting the time when they will issue the shares as also the proportion in which they should be issued is a matter left to their discretion and it is not the province.of the Court to interfere with the exercise of that discretion. This is of course subject to the general excep- tion that the directors are not to act against the interest of the company or mala fide. No such question arises in this case and therefore it is unnecessary to discuss that aspect of the situation. In my opinion therefore on this third ground this contention of the appellants should be rejected.

The appeal therefore fails and is dismissed with costs.

MAHAJAN J.–This is an appeal by special leave from the judgment and decree of the High Court of Judicature at Bombay (Chagla C.J. and Tendolkar J.) dated 11th March, 1948, confirming the judgment of the said High Court in its Original Jurisdiction (Bhagwati J.) dated 10th November, 1947.

The two questions canvassed in this appeal are: (1) whether the issue of further shares by the directors was in contravention of the provisions of section 105-C of the Indian Companies Act, and (2) whether this issue was not made bona fide. Both these questions were answered in favour of the respondents by the High Court.

The Bombay Life Assurance Co. Ltd., the first defendant in the case, was incorporated in the year 398 1908 as a limited company with an authorized capital of ten lakhs. Five thousand four hundred and four shares had been issued till the year 1945 and they were paid up to Rs. 25 each. The second defendant is the chairman of the board of directors which is comprised of defendants 2 to 9. The company has a life fund of Rs. 230 lakhs.

In the year 1944 Sir Padampat Singhania, an industrial- ist of Kanpur, attracted by the soundness of this concern, began purchasing the shares of the company with a view to acquiring a controlling interest in its management. Soon after competition started for the purchase of the shares of the company between the Singhania group and the Maneklal Premchand group who were in management of this company. The result of this competition was that shares which were ordi- narily quoted at 250 went up as much as to 2,000 in March, 1945. A circular was issued by the directors to the share- holders apprising them of the activities of the Singhania party and suggesting that those who wanted to sell their shares should sell them in the first instance to the chair- man. This circular does not seem to have had much effect as the shareholders wanted to reap the maximum benefit which would come to them as a result of this competition between two rich parties. By the end of December, 1944, the Singha- nia group had purchased 2,517 shares as against 2,397 held by Maneklal Premchand’s party. The Singhania group had thus acquired a majority of the shares in the company though these had not yet been transferred in their name. On 8th January, 1945, the chairman at his own instance and after consulting some of the directors made an application to the Examiner of Capital Issues for permission for a fresh issue of capital. This was allowed on 20th February, 1945. As soon as sanction of the Examiner of Capital Issues was obtained for increasing the capital of the company, a meet- ing of the directors was held on 21st February, 1945, and it adopted the following resolution :–

1. That the capital of the company be increased from Rs. 5,40,400 to Rs. 10,00,000 by the issue of the 399 remaining 4,596 ordinary shares of Rs. lOO each at a premium of Rs. 75 per share.

2. That as on the existing shares of Rs. 100 each Rs.

25 is paid up, to call Rs. 22 per, share on these new shares also.

3. That these new.shares shall rank pari passu in all respects with the existing shares of the company, but they shall be entitled to rank for dividend as from 1st April, 1945.

4. That these new shares shall be offered in the first instance by a circular to the shareholders of the company as shown on the register of members on 20th February, 1945, in the proportion of four new shares to every five shares held by them in the capital of the company on that date.

5. That in the case of any shareholder holding less than five shares or whose holding of shares shall not be complete multiples of five shares, then fractional certifi- cates shall be issued to such shareholders in respect of their rights for fraction of a share, each fractional cer- tificate representing one-fifth of a share.

6. That a sum of Rs. 100 per share (Rs. 25 towards capital and Rs. 75 for premium) shall be payable along with application for these new shares.

7. That all applications for shares in accordance with this offer (including applications for shares made in re- spect of and accompanied by fractional certificates and applications for shares accompanied by a renunciation) must be presented to and payment made at the registered office of the company in Bombay on or before the 10th March, 1945.

Any shareholder or person in whose favour a renunciation has been signed not applying on or before the 10th March,, 1945, in terms of the offer shall be deemed to have declined to participate in this new issue and all fractional certifi- cates not presented as required on or before 10th March, 1945, will cease to have any validity and will not entitle the holder to any rights.

8. That any balance of the shares remaining out of this issue not applied for by the: 10th March, 1945, shall be disposed of by the directors as they may consider best in the interests of the company.

400 That the draft circular to the shareholders with the enclosures (form A being the form of application, form B form of renunciation and form. of fractional certificates with application form) placed on the table by the manager and actuary be approved and initialled by the chairman.

10. That the manager and actuary be and is hereby directed to issue forthwith the necessary circulars to the shareholders.

11. That a committee consisting of the chairman and any one of the directors or the chairman and any two of the directors be and are hereby appointed to scrutinise the application for the new shares which may be received and to make allotment of these new shares………………” It is the validity of this resolution ‘that is the sub- ject matter of the present dispute. The plaintiffs, who are two shareholders of the company owing allegiance to the Singhania group, filed the suit out of which this appeal arises challenging this issue of further shares, principally on two grounds, viz. (1) that the new issue contravenes the provisions of section 105-C of the Indian Companies Act, and (2) that the issue of shareswas not bona fide made in the interests or for the benefit of the first defendant company, but was resolved upon merely with the object of retaining or securing to the second defendant and his friends control of the first defendant company. As already stated, both these contentions were negatived by the trial Judge and the suit was dismissed and this decision was affirmed on appeal.

The answer to the first question depends on the meaning to be given to the words used in section 105-C of the Indian Companies Act as to its scope. The section was introduced in the Indian Companies Act in the year 1936. Antecedent to this period the question of issue of new shares by the directors was dealt with by article 42 of the Articles of Association given in the schedule to the Indian Companies Act, 1913. The article was in these terms :– “Subject to any directions to the contrary that. may be given by the resolution sanctioning the 401 increase of share capital, all new shares shall, before issue, be offered to such persons as at the date of the offer are entitled to receive notice from the company of general meetings in proportion, as nearly as the circum- stances admit, to the amount of the existing shares to which they are entitled.” As its language indicates, the article only applied to cases where the capital of the company was increased by a resolution of the company. It had no application to cases where the directors issued further shares within the autho- rised limits. The new section introduced in 1936 is in these terms :– “Where the directors decide to increase the capital of the company by the issue of further shares such shares shall be offered to the members in proportion to the existing shares held by each member (irrespective of class) and such offer shall be made by notice specifying the number ‘of shares to which the member is entitled, and limiting a time within which the offer, if not accepted will be deemed to be declined, and after the expiration of such time or on re- ceipt of an intimation from the member to whom such notice is given that ‘he declines to accept the shares offered, the directors may dispose of the :same in such manner as they think most beneficial to the company.” It qualifies the discretion of the directors in the matter of issue of capital by enjoining on them that if they decide to issue further shares, the existing shareholders should be given the first option to buy’ them. The language employed in the section admits of three possible interpreta- tions: (1) that its scope is limited to cases where there is an increase in the capital of the company according to the provisions of section 50; (2) that the section covers within its ambit all issue of further capital whether made by increasing the nominal capital or by issuing further shares within the authorised capital; (3) that the section has application only to cases where the directors issue further shares within the authorized limit.

The learned counsel for the respondents contended that the Who1e intent an d purpose of ‘the section was to limit the discretion of directors in regard to the issue 402 of further shares in those cases alone where there was an increase in the nominal capital of the company by recourse to the provisions of section 50 of the Indian Companies Act.

It was argued that the phrase “increase of capital” has been employed by the legislature in section 50 and some other sections preceding section 105-C with reference only to the nominal capital of a company and that this expression had not been used with reference to the subscribed capital anywhere in the Act and therefore the scope of section 105-C should be limited to cases where the increase in the capital is. brought about under section 50 of the Act and new shares are created and issued by the directors. In Sircar and Sen’s Indian Companies Act, 1937 Edn. at page 309 the learned authors observe as follows :– “The words ‘further shares’ must be read in conjunction with the words ‘decide to increase the capital of the compa- ny.’ They must mean shares which are issued for the purpose of Increasing the capital beyond the authorized capital.” Mr. Ghosh on Indian Company Law, 8th Edn. at page 263 has stated as follows :– “The object of this new section appears to be to make the salient provisions of Regulation 42 in Table A. , com- pulsory. The section as drafted is liable to the construc- tion that whenever the directors decide to increase the capital of the company by the issue of further shares, even if it be a part of the authorized capital, the new shares must be first offered to theexisting shareholders. But this section should be read in conjunction with clause (a) of section 50 under subsection (2) of which the directors have no power to increase the share capital of the company.

Therefore it seems that the words ‘further shares’ mean shares. beyond the authorized capital of the company.” Whatever might be the opinion expressed by these commen- tators, the matter has to be decided on the language of the Act itself. As already pointed out,. the learned counsel for the respondents contended that the above was the correct view as to the scope of the. section. The learned counsel for the appellants however- urged that on a proper inter- pretation of the.

403 section its scope could not be limited only to cases of issue of further shares by creation of new shares by in- creasing the nominal capital of the company, but that the language employed in the section also included within its ambit cases where there was a further issue of shares by the directors, within the authorized capital. The learned counsel laid considerable emphasis on the expression “fur- ther shares” used in the section and suggested that these words have been used advisedly instead of the expression “new shares” in order to bring within the scope of the section increases in the capital of a company whether within the authorised limit or outside it.

The third interpretation of the section finds support from the language employed by the legislature in the opening part of the section, wherein it is said: “Where the direc- tors decide to increase the capital of the company by the issue of further shares……. “The directors can only decide to increase the capital at their own initiative when they issue further shares out of the authorised capital. In no other case can the directors themselves decide as to the increase in the capital of a company. Under section 50 the capital can only be increased by a resolution of the compa- ny. Once the company has increased the nominal capital, then the directors can issue shares within the new limit.

Therefore the authority of the directors, strictly speaking, in respect to the increase of capital is limited to an increase within the authorised limit. They cannot by their own decision increase the nominal capital of the company.

In view of this language the third interpretation of the section seems more plausible.

The expression “capital of a company” is an ambiguous phrase and may mean either issued capital or authorized capital according to the context. It has been used in different senses in various parts of the Act. In what sense it has been used in this section is by no means an easy matter to decide, particularly in view Of the fact that in spite of the introduction of this section in the Indian Companies Act in the year 1936, article42 still remains as one of the articles to be adopted by companies if they do not choose otherwise 404 and this refers to cases of increase in the nominal capital of a company. In my opinion, for the purpose of deciding the present case it is not necessary to pronounce on the question as to the precise scope of the section because I consider that on any interpretation of it the appellants’ contention has to be negatived. If the interpretation sug- gested by the learned counsel for the respondents is accept- ed, then the plaintiffs’ contention on the first question fails, because here there has been no increase in the capi- tal of the company under section 50. Conceding however for the sake of argument (but not deciding) that the scope of the section is as it has been contended for by Sir Noshir- wan, the question still remains “To what extent has there been a contravention of its provisions by the directors in the present case.” So far as I have been able to see, the resolution passed by the directors is in accordance with the provisions of the section and does not injuriously affect the shareholders or the company, and they cannot be said to have any cause of grievance against it. In other words, in my opinion, the resolution substantially complies with the provisions of section 105-C of the Indian Companies Act.

The directors offered all the new shares to the shareholders in the ratio of 4 to 5, as the shares of the company were held in multiples of five to a larger extent than in any other multiple. The result of fixing this ratio is that 272 shares remain outside the offer. In whatever other propor- tion the shares were offered, still a few shares were bound to remain unoffered. If a liberal interpretation is placed on the section, then it has to be held that the directors’ resolution substantially complies with its provisions. On the other hand, if a technical and literal interpretation is placed on the section, then the directors were bound to offer the shares in the ratio of 4596/5404 in spite of the practical difficulties that might result in the actual working out of such a proportion, and irrespective also of whatever absurdities or anomalies might thus result. I am of the opinion that the section has to be given a workable construction and a construction that is businesslike in preference to a literal construction which might lead to a deadlock. In each 405 case it should be seen whether the directors have substan- tially complied with the provisions of the section or not.

The basic idea underlying the section is that whatever is given, is given to all the existing shareholders and is distributed equally and equitably between them. It cannot be denied that all the shareholders were offered the further shares and that they were offered equally and equitably.

Whatever is the balance remains with the company with the result that the capital remains unincreased to this extent.

In such a situation it is difficult to hold that the reso- lution passed by the directors has contravened the provi- sions of section 105-C and has caused any detriment or injury either to the company or to the shareholders. Even if the resolution passed by the directors is held to be in technical breach of the section, as it has caused no injury to anybody, the resolution cannot be held to be void. Under the law as it existed prior to 1936, if a company incorpo- rated in its Articles of Association article 42 mentioned in the schedule to the Indian Companies Act, then in the case of issue of new shares the directors’ discretion was cur- tailed inasmuch as they were bound to offer these shares in the first instance in proportion as nearly as the circum- stances admitted to the amount of the existing shares to the existing shareholders but in all other cases their discre- tion remained unfettered. It was open to a company not to adopt article 42 and thus fetter the discretion of the directors even in the case of the issue of new capital.

After 1936 it has been made obligatory on the directors to give the first option to buy further shares to the existing shareholders and without any favour to anyone. That being the intent and purpose of the section, it has been fully carried out by the directors in the present instance and has been carried out in a businesslike way because the ratio in which they offered the shares is the ratio which works to the convenience of the largest number of shareholders as the shares of the company are held mostly in multiples of five.

If the shares were issued in any other ratio, that would have created some difficulty in the way of shareholders who held shares in multiples of five and who owned 2,110 406 shares. They would have been obliged to collect fractions before they could claim a whole share and thus make an application within the time allowed to exercise the option.

Where the language of a statute in its Ordinary meaning and grammatical construction leads manifest contradiction of the apparent purpose of the enactment, or to some inconven- ience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sencence. In my opinion, the section when it says “such shares shall be offered to the members” should be construed liberally and not literally, as such an interpretation would make the section workable and would not in any way affect its intent and purpose, the phrase “such shares” meaning those shares which admit of being so offered in a business- like way.

It was argued that a liberal interpretation of the section would result in the directors allotting the balance of shares remaining out of the further shares unoffered to their own friends and relations and it would operate to the detriment of the other shareholders. In this connection reference was made to para 8 of the resolution above men- tioned. In my opinion this paragraph does not bear out the contention of the appellants because it has reference only to shares not applied for, obviously shares not offered and which could not be taken up by the shareholders cannot fall under that description. That paragraph applies only to cases where the shares could be applied for and then no applica- tion was made in respect of them. It was not disputed that the directors in the present case had not sold these shares to any one and that these have remained unissued. It was urged strongly by the learned counsel for the appellants that the section being imperative and its language being unambiguous, the Court was bound to place a literal inter- pretation on it and the argument of hardship or inconven- ience should not weigh with it. It was further suggested that the directors could always give effect to the provi- sions of the section by increasing the capital in a manner and to the extent that the further shares 407 could be offered to the shareholders in such a proportion that all the shares offered could be taken up them. In other words, it was contended that the section not only fetters the powers of the directors in the matter of sale of shares but it also restricts their discretion in the matter of increase of capital and as to the number of further shares.

This contention, if accepted, would mean that the legisla- ture by enacting section 105-C indirectly enjoined on the directors that whenever they decide to increase capital by issue of further shares they should make the increase only to such an extent and in a manner as to enable the existing shareholders to take the whole of it. If that was the intention of the section, there was nothing easier for the legislature to say so. The section, on the other hand, recognizes that the directors have a discretion in the matter of the increase of capital when it says, “when the directors decide to increase the capital of a company.” It means that it is within their absolute discretion to take the decision whether to increase the capital or not. It is also within their discretion to say to what limit and to what extent they will increase the capital. It is also for them to decide how many shares and of what value they will issue. Once they have taken their decision, it is then and then only that section 105-C comes into operation. At that stage they have to offer the new shares to the shareholders and at that stage they can offer them in a businesslike manner to all of them equitably and equally and if out of the shares offered some cannot be taken up by the sharehold- ers as they do not fit in the ratio in which the offer has been made, the only result is that those shares remain unoffered and thus unissued. I am therefore of the opinion that the learned Judges of the Court of appeal were right when they held that under section 105-C the shares have to be offered to the existing shareholders as nearly as the circumstances would admit and that the section has to be given a businesslike construction and should be construed liberally and that the charge of contravention of section 105-C cannot be levelled against the directors so long as they have not disposed of the unoffered balance contrary to 408 the provisions of the section. The result is that the first contention of the learned counsel stands negatived.

The next question whether the action of the directors in passing the resolution was not bona fide seems to be con- cluded by concurrent findings of fact of the Courts below to the effect that the resolution was passed because the compa- ny needed additional funds at the moment when the new issue was decided upon and that the issue of shares was not due solely to the desire on the part of the directors to keep themselves in the saddle.

It is not the practice of this Court ordinarily to interfere with concurrent conclusions on questions of fact reached in the Courts below unless those conclusions have been reached on extraneous considerations or by violating rules of procedure or by committing any breach of some provision of law: vide Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy (1) The learned counsel for the appel- lants while conceding. that it was not open to him to chal- lenge concurrent findings of fact of the Courts below, urged that the whole case has been looked at by them from an erroneous angle. It was contended that the Courts below had misdirected themselves in their approach to the decision of the issue of bona fides. In this connection emphasis was laid on the following observations in the judgment of the learned Chief Justice and on similar observations occurring elsewhere :– “In this particular case it is urged and urged with considerable force that the reason which actuated the’ directors on the 21st February, 1945, in resolving to issue new shares was the fear that the Singhsnia group, would capture the company and oust the present directors from their vantage point and take control of the company itself.

It may be that one of the factors that weighed with the directors was that consideration. It may even be that it weighed with them a great deal. It may also be that the directors selected this particular time viz. the 21st Febru- ary, 1945, for the issue of’ these shares because of the impending danger of the–‘ 73 I.A-. 246.

409 majority of shares going into the hands of the Singhania group with the necessary consequences. If, with all that, it is established before the Court that in fact on the 21st February, 1945, the company was in need of funds, that the funds were required for the working of the company, then the Court will not interfere with the discretion exercised by the directors, because the principle is obvious that if the new shares have been issued because the company needs funds, then it cannot be said that the discretion vested in the directors has been exercised not in the interests of the company or for the purpose of the company. It is only when that discretion is exercised solely for the personal ends of directors, for their personal aggrandisement, for keeping themselves in power, then undoubtedly that discretion cannot be said to have been exercised for the purpose of or in the interests of the company.” Reference was also made to the concluding part of the same judgment which runs thus :– “Undoubtedly this is a case of high finance and we have been given a glimpse of what high finance can be and there is great justification in what Mr. Amin has said as to the manner in which some of the things were done with regard to the affairs of this company. But ultimately we must come down to the one short and simple question, was the company in need of funds at the time when the directors decided upon the issue of new shares, and in my opinion there can be no doubt on the evidence led this case that the answer to that question must be in the affirmative. If that be the posi- tion all other considerations can be of no avail or of very little avail as against this central fact in this case and as I am satisfied as to the central fact, I would agree with the learned Judge who took the same view and came to the conclusion that the plaintiffs have failed to discharge the burden which lay upon them of establishing that the issue of new shares was not bona fide and not in the interests of and for the benefit of the company.” It was argued that the learned Judges were not right in thinking that all other considerations were of 410 no avail and should be practically kept out of consideration once it was established that the company needed funds. It was said that it having been found that at the time of the aforesaid resolution the directors were considerably influ- enced by the consideration of keeping out the Singhania group from capturing the company, and by the consideration of keeping themselves in the saddle, it should have been held that they were acting with an ulterior motive, and that their decision as to the need of the company for further funds was vitiated by reason of the ulterior motive.

It is convenient here to state what the true approach should be to a question of this nature when it arises in a case. It is well settled that in exercising their powers whether general or special, the directors, must always bear in mind that they hold a fiduciary position and must exer- cise their powers for the benefit of the company and for that alone and that the Court can intervene to prevent the abuse of a power whenever such abuse is held proved, but it is equally settled that where directors have a discretion and are bona fide acting in the exercise of it, it is not the habit of the Court to interfere with them. When the company is in no need of further capital, directors are not entitled to use their power of issuing shares merely for the purpose of maintaining themselves and their friends in management over the affairs of the company, or merely for the purpose of defeating the wishes of the existing majority of shareholders.

It appears to me that the learned Judges in the Court below approached the decision of this question in the light of the principles stated above and the contention of the learned counsel therefore does not seem right. Where the directors are not chargeablefor breach of trust so far as the company is concerned and where their action is for the benefit of the company, then merely because in promoting the interests of the company they also promote their own inter- ests. it cannot be held that they have not acted bona )fide.

As it has been said in Hirsche v. Sims (1), if the true effect of the whole evidence is that the defendants truly’ (1) (1894) A.C. 654.

411 and reasonably believed at the time that what they did was for the interest of the company, they are not chargeable with dolus malus or breach of trust merely because in pro- moting the interest of the company they were also promoting their own, or because they afterwards sold shares at prices which gave them large profits.

Both the Courts below have as fact that to a certain extent in resolving to issue new shares the directors were actuated by a fear that the Singhania group would capture the company and oust the present directors from their vantage point and take control of the company itself. It was argued that this motive was an ulterior motive and the exercise of power by the directors to achieve this objec- tive by the issue of further shares was an exercise of power for the purpose for which it was not conferred. This argument would have had force if this was the main purpose of the directors in issuing the further shares, but this is not the case here. As found by the High Court, the central fact working in the mind of the directors was the necessity of further funds for the company at the moment they passed the resolution. That being so, it seems to me that the existence of the other motive does not make the action of the directors in respect of the issue of further shares mala fide.

Moreover, in the present case it seems to me that the directors were on the defensive. They felt that the attempt of the Singhanias to capture the controlling inter- est in the company by paying high prices for its shares must have been with a purpose, i.e., to make use of the funds of the company in their own concerns. Some evidence of this exists on the record. They thought that it was their duty as directors to protect the company from such an attack and they felt that it was beneficial to the company to protect it from such an attack. They did not keep the matter in secret but informed all the sharehold- ers about it. They first attempted to enter into the field of competition with the Singhanias but it seems that they were not wholly successful in their objective. They then decided to issue further capital by taking into consideration the 53 412 interest and the needs of the company and ifs requirements in respect of capital at the moment. They also thought that by this action they would also be able to keep out the Singhanias from capturing the company. They were under no obligation to Singhanias who had not yet even been en- tered as shareholders on the register of shareholders. There was no dolus malus in their mind as directors of the compa- ny, as affecting the company or its shareholders. On the other hand, they honestly considered it to be in the best interests of the company to meet such an attack. The re- sult- therefore is that it cannot be held that this is one of those unusual cases where this Court should not give weight to the concurrent findings of fact by the Courts below, or that it is a case where it can be held that the High Court in arriving at its findings has committed a breach of any rule of procedure or law and that there is no evidence to support the findings that have been arrived at.

The result therefore is that this appeal fails and is dismissed with costs.

DAS J.–I agree that this appeal must be dismissed. As, however, my decision rests on slightly different reasons, I desire to state them in my judgment.

For the purpose of appreciating the questions involved in this appeal which has been brought by the plaintiffs it will suffice to set out the following facts.

The Bombay Life Assurance Company, Ltd. (hereinafter referred to as “the company”)was incorporated in 1908 with an authorised capital of Rs. 10,00,000 divided into 10,000 shares of Rs. 100 each. By 1945, 5,404 shares in all were subscribed, and Rs. 25 per share had been paid on them.

This left 4,596 shares out of the total authorised capital yet to be issued. The plaintiffs are two of the shareholders of the company. Respondents 2 to 9 are the directors of the company of whom respondent 2 is the chairman of the board of directors. It appears that 413 from July, 1944, shares in the company began to be purchased from the holders thereof by or in the interest of Sri Padampat Singhania. This attempt to buy up the shares on a large scale naturally resulted in a sudden rise in the price of the shares. This abnormal rise in the price could not but attract the attention of the board of directors. On September 18, 1944, a board meeting was held at which the chairman drew the attention of his co-directors to the serious implications of the attempt of an outsider group to corner the shares of the company. It was decided at that meeting that a circular should be issued to the Shareholders acquainting them of the true position and the chairman was authorised to sign the circular. Accordingly, on September 19, 1944, a circular was issued to the shareholders drawing their attention to what was happening and exhorting.them, in case they -wanted to dispose of their holdings, to offer them to the chairman. The result of the chairman and other directors entering the arena was a race for purchase of shares of the company which inevitably led to a phenomenal rise in the price of the shares. The shares which in 1944 were quoted at Rs. 250 per share went up to Rs. 2,000 per share in March, 1945. It may be noted here that the shares purchased by the Singhania group were not submitted for registration of the transfers with the result that their names have not yet been entered on the register of members.

In the meantime, on January 8, 19,15, an application was submitted by the company to the Examiner of Capital Issues for sanction for a fresh issue of capital, setting forth several reasons for which such capital was required by the company. The required sanction dated February 16, 1945, was received by the company on February 20, 1945, and on the next day (,February 21, 1945) a board meeting was held at which the directors decided to issue the remaining 4,596 shares at a premium of Rs. 75 per share and to call up Rs.

25 per share on them. The minutes of the board meeting (Ex.

O) are printed at pages 301-2 of the Paper Book. Pursuant to this resolution of the board a circular (Ex. q) was issued to the shareholders on the same day with copies 414 of the form of application and form of renunciation referred to in the resolution and in the circular. These further shares were offered to the shareholders shown on the regis- ter of members in the proportion of four further shares to every five shares then held by them. The last date for submission of the applications and necessary payments for the shares so offered was fixed for March 10, 1945. It is said that on the very next day after the board meeting 1,648 shares were allotted and that between February 22, and March 6, 1945, 2,204 shares were allotted to the shareholders who had applied for the same. The suit out of which the present appeal has arisen was filed on March 5, 1945.

The plaintiffs are two of the members of the company suing” for themselves and all other aggrieved shareholders” of the company. The defendants are the company and the eight directors. The reliefs prayed for are as follows, inter alia:

(a) That it may be declared that the resolution of the directors and the offer referred to in para 6 hereof contra- venes the provisions of section 105-C of Indian Companies Act and was and is ultra vires, and illegal;

(b) That it may be declared that the said offer of shares referred to in para 6 hereof is not bona fide or in the interest of the defendant company and is ultra vires and illegal;

(c) That the defendants 2 to 9 may be restrained by an injunction from allotting any shares or doing any further act in pursuance of the said offer.” It will be noticed that none of the shareholders other than the directors to whom further shares had been allotted before the filing of the suit has been made a party to the suit. Further, even as against the defendants 2 to 9 the consequential relief by way, of cancellation of the allot- ments of further shares to them and the rectification of the register in respect thereof has not been prayed for by the plaintiffs.

The contentions of the plaintiffs as set forth in the plaint on which the above prayers were founded may be summa- rised shortly as follows:

415 (i) the company was not in need of capital, (ii) the issue of further shares was not made bona fide for the benefit or in the interest of the company but had been made “merely with. the object of retaining or securing to the second defendant and his friends the control of the first defendant company,” and (iii) the issue and offer of further shares are illegal and void for contravention of the provisions of section 105-C of the Indian Companies Act. It is necessary to examine each of these contentions and to ascertain their effect.

Re (i): Both the Courts below.have found it as a fact that at the time the directors resolved upon the issue of further shares the company was in need of capital for the purposes mentioned in the company’s application to the Examiner of Capital Issues referred to above. This concur- rent finding of fact has not been contested before us and the next contention of the appellants will have to be exam- ined in that light.

Re (ii): It is not disputed that the company’s need for funds standing by itself will afford a good motive to the directors to issue further shares. The contention, however, is that if that motive was not the sole motive but was mixed up with any other motive, it was an abuse of the powers of the directors to issue further shares. This plea is clearly a departure from the case made in the plaint.

There-the case was that there was no need for funds at all and the sole motive of the directors was merely to retain their own control over the affairs of the company. It will, however, be a hypertechnicality to shut out this plea alto- gether. The plea of mixed motive raises three questions, namely- (a) whether apart from the motive of finding further capital for the company, there was any, and, if so, what other motive, (b) was that other motive vitiated by bad faith, and (c) if it was so vitiated, whether the presence of it nullified the good motive and rendered the issue of further shares illegal and void.

116 The contention of the plaintiffs before Bhagwati J. as before us, was that the company was not in need any further capital in February, 1945, and that the directors of the company decided to issue the further capitalmerely With a view to retain control of the management of the company in their hands. On the evidence before him, Bhagwati J. found that the motive of the directors was rather to keep the Singhania group out of the control of the company than to retain their own control. The race for the purpose of purchasing the shares was not merely for the purpose of increasing their holdings for holdings’ sake but was really with a view to prevent the Singhania group from obtaining a majority of shares which would give them the control of the management of the company and enable them to utilise the life funds of the company for the purposes of the various industrial concerns of the Singhania group. The result of keeping out the Singhania group might well be to strengthen the position of the directors and to keep them in the sad- dle, but the proximate motive was to exclude the Singhanias.

The distinction is real and quite understandable. The appeal Court does not appear to have dissented from this view of the matter and I do not see any reason to take a different view. It follows, therefore, that apart from the motive of raising fresh capital for the purposes and benefit of the company, the directors also had another motive, namely, to prevent the Singhania group, who are strangers to the company, from intruding into its affairs so as to be able to assume a controlling hand in its management for their own purposes rather than for the benefit of the compa- ny. On the evidence on record the existence of this motive side by side with the motive of raising further capital cannot be denied.

The question then arises whether in acting up to it the directors were actuated by bad faith. In coming to a con- clusion on this point it has to be borne in mind that the Singhania group had only purchased some shares from various existing shareholders but did not submit the transfers of registration so as to get their names put upon the register of members. It is clear that until the Singhania group get their names.

417 entered in the register of members, they are not share :- 1950-9501 holders but are complete strangers to the company ,.

It has been held in Percival v. Wright(1) that ordinarily the directors are not trustees for individual share ;- holders. Even if the directors owe some duty to the exist- ing shareholders on the footing of there being some fiduci- ary relationship between them as stated in some cases [see for example In re Gresham Life Assurance Society] (,2), I see no cogent reason for extending this principle and.

imputing any kind of fiduciary relationship between the directors and persons who are complete strangers to the company. In my judgment, therefore, the conduct of the respondents 2 to 9 cannot be judged on the basis of any assumed fiduciary relationship existing between them and the Singhania group. In my opinion, the respondents 2 to 9 owed] no dnty to the Singhania group and, therefore, the motive to exclude them cannot be said to be mala fide per se. In North-West Transportation Company, Ltd. v. Beatty (3) the Judicial Committee observed atp. 601:

“But the constitution of the company enabled the defend- ant J.H. Beatty to acquire this voting power; there was no limit upon the number of shares which a shareholder might hold, and for every share so held he was entitled to vote, the charter itself recognised the defendant as a holder of 200 shares, one-third of the aggregate number; he had a perfect right to acquire further shares, and to exercise his voting power in such a manner as to secure the election of directors whose views upon policy agreed with his own, and to support those views at any shareholders’ meeting.” Beatty referred to in the above passage was a director. It follows therefore, that the fact of the directors entering into a competition with the Singhania group in purchasing the shares of the company was quite legitimate and was not mala fide. It was urged, however, that the issuing of further shares, although the company required further capi- tal, was, in the circumstances, evidence of bad faith.

Bhagwati J. dealt (1) L.R. (1902) 2 Ch. 421. (2) L.R. 8 Oh. App. 446 at 0. 449. (3) L.R. 12 A.C. 589.

418 with the various acts of the directors relied upon by the plaintiffs as indicating bad faith on the part of the direc- tors and on a consideration of all of them was ‘unable to come to the conclusion that the issue of new shares was decided upon by the directors not bona fide in the interests of the company and merely with a view to keep the control of the affairs of the company in their hands.” The learned Judge, therefore, came to the conclusion that the issue of further shares and the offer thereof made on the 21st February, 1945, wasnot ultra vires and illegal.’ Some of these facts on which the charge of mala fide was sought to be founded were urged before the appeal Court by learned counsel ‘or the appellants. The learned Chief Justice discussed the matters and concluded by saying that he agreed with the trial Judge that the plaintiffs had failed to discharge the burden which lay upon them of estab- lishing that the issue of new shares was not bona fide and not in the interests, and for the benefit, of the company.

I do not see any cogent reason for taking a different view on the facts. The position, shortly put, was that the Singhania group, who were outsiders and to whom the direc- tors owed no duty, were out to corner the shares of the company for their own ends. To thwart that object of the Singhania group by making it more and more difficult for them to acquire more shares the directors took advantage of the existing needs of the company for further capital and decided upon to issue further shares. The issue of further shares served two purposes, namely, the purpose of finding the necessary finance, and to exclude the interlopers, both of which purposes, according to the directors, were for the benefit of the company. Rightly or wrongly, the directors felt that it was not in the interests of the company to allow the Singhania group a controlling hand in the manage- ment of the affairs of the company. Their apprehension evidently was that the Singhania group, if and when they became shareholders, would use their voting power in their own interests and to the detrimcnt of the company by utilis- ing the life fund of the company for the purposes of their various other in-dustrial concerns. I find nothing in the evidence on 419 record to doubt the honesty of the directors in holding this view and, that being so, I see nothing improper if the directors in the interests of the company and the existing shareholders tried to prevent what, according to them, would be a catastrophe. Indeed, if the directors honestly held that view—and as already stated I have no reason to think that they did not–they would, in my opinion, have been guilty of dereliction of duty to the company and to the existing shareholders if they did not exert themselves to prevent such evil. In my judgment the motive to prevent the Singhania group, who were outsiders, from acquiring a con- trol over the company cannot, as between the directors and the company and the existing shareholders, be stigmatised as mala fide.

At two places in his judgment the learned Acting Chief Justice expressed the view that if it were established before the Court that the company needed further capital, all other considerations could be of no avail or of very little avail as against that central fact. Tendolkar J. did not consider it necessary to deal with the various acts of the directors relied upon as evidence of their mnala fides, because he was of the view that assuming that the directors did all those acts with the object of keeping the Singhania group out of control of the company, the moment it was established that the company was in need of further capital or legitimate purposes, the fact that the directors utilised such need for the purpose of establishing themselves more firmly in the saddle did not render the issue of further capital either ultra vires or invalid. Learned counsel for the plaintiffs contends that the learned Judges in the Courts below entirely overlooked the point that the presence of such bad motive would nullify the good motive of finding capital necessary for the company and this mixture of mo- tives would render the issue of further shares illegal and void. Tiffs leads me to a consideration of the third sub- head on the assumption that what I have called the addition- al motive was a bad motive.

It is well established that directors of a company are in a fiduciary position vis-a-vis the company and 53 420 must exercise their power for the benefit of the company.

If the power to issue further shares is exercised by the directors not for the benefit of the company but simply and solely for their personal aggrandisement and to the detri- ment of the company, the Court will interere and prevent the directors from doing so. The very basis of the Court’s interference in such a case is the existence of the rela- tionship of a trustee and of cestui que trust as between the directors and the company.

The first case to be referred to is that of Fraser v.

Whalley(1). In that case a new company was incorporated in 1859 by an Act of Parliament. By that Act also certain existing railway companies were authorised “to acquire, take and hold shares in the undertaking of the company, and for such purpose to create new shares in their undertakings.” The existing companies in 1861 passed resolutions authoris- ing their directors to exercise this power. The resolutions were, however, not acted upon and the existing companies did not issue n ;w shares in their undertakings for the purpose of taking up any share in the new company and all the shares of the new company were issued to persons other than the existing companies. In short, the shares which it was con- templated would be taken up by the existing companies were no longer available. Subsequently, in 1862, another Act of Parliament was passed authorising the new company to make a branch line and for that purpose to raise fresh capital by the creation and issue of new shares. But this new Act gave no fresh power to the existing companies to take up any of these new shares to be issued by the new company. One Savin held the majority of shares in the existing companies and there was dispute between him and the directors. The gener- al meeting of the company was shortly going to be held and the directors knew that at the ensuing general meeting their policy would be repudiated by the majority of shareholders and they would be turned out from their office. It was in these circumstances that the directors purporting to act on the resolutions of (1) (1864)2 H. & M. 10.

421 1861, resolved to issue new shares. Suit was filed on behalf of the shareholders to restrain the directors from issuing any new shares. On a motion for injunction Wood V.C. granted an interlocutory injunction. In course of his judgment the learned Judge observed:

“The directors are informed that at the next general meeting they are likely to be removed, and, therefore, on the very verge of a general meeting, they, without giving notice to anyone, with this indecent haste and scramble which is shewn by the times at which the meetings were held, resolve that shares are, on the faith of this obsolete power entrusted to them for a different purpose, to be issued for the very purpose of controlling the ensuing general meeting.

I have no doubt that the Court will interfere to prevent so gross a breach of trust. I say nothing on the question whether the policy advocated by the directors, or that which I am told is to be pursued by Savin, is the more for the interest of the company. That is a matter wholly for the shareholders. I fully concur in the principle laid down in Foss v. Harbortie [1843] EngR 478; (2 Hare, 461) as to that, but if the directors can clandestinely and at the last moment use a stale resolution for the express purpose of preventing the free action of the shareholders, this Court will take care that, when the company cannot interfere, the Court will do so.” It will be noticed that this decision proceeds entirely on the grounds that the resolutions of 1861 on which the directors purported to act were obsolete, for they had not so long been acted upon and also because the shares contem- plated by that resolution were not available, and that even if the resolutions were still effective and gave authority to the directors to issue new shares, the directors could only do so for the purpose of acquiring shares in the new company and not for the purpose of controlling the ensuing general meeting and preventing the free action of the share- holders. There was no evidence whatever in that case that the issue of shares was at all for the benefit of the compa- ny. The issue of shares in that case was not for the pur- pose of taking up shares in the new company for which pur- pose alone the power could be exercised, 422 but that it was being exercised, wholly and solely for quite a different purpose, namely, of maintaining themselves in office.

Punt v. Symons & Co. Limited (1) was a motion for an interim injunction to restrain the holding of a meeting of the defendant company for confirming the resolution for issue of shares. On the evidence it was quite clear “that these shares were not issued bona fide for the general advantage of the company, but that they were issued with the immediate object of controlling the holders of the greater number of shares in the company, and of obtaining the neces- sary statutory majority for passing a special resolution while, at the same time, not conferring upon the minority the power to demand a poll.” Byrne J. granted an injunction restraining the defendant from holding the confirmatory meeting and observed:

“1 am quite satisfied that the meaning, object, and intention of the issue of these shares was to enable the shareholders holding the smaller amount of shares to control the holders of a very considerable majority. A power of the kind exercised by the directors in this case, is one which must be exercised for the benefit of the company; primarily it is given them for the purpose of enabling them to raise capital when required for the purposes of the company.

There may be occasions when the directors may fairly and properly issue shares in the case of a company constituted like the present for other reasons. For instance, it would not be at all an unreasonable thing to create a sufficient number of shareholders to enable statutory powers to be exercised, but when I find a limited issue of shares to persons who are obviously meant and intended to secure the necessary statutory majority in a particular interest, I do not think that is a fair and bona fide exercise of the power.” The learned Judge concluded with the following words:

“If I find as I do that shares have been issued under the general and fiduciary power of the directors for the express purpose of acquiring an unfair majority (1) L.R. [1903] 2 Ch. 506.

423 for the purpose of altering the rights of parties under the articles, I think I ought to interfere.” Piercy v. S. Mi1Is & Co. Ltd. (1) was a witness action before Peterson J. It was indeed a gross case. On the evidence Peterson J. found that it was manifest “that the shares were allotted simply and solely for the purpose of retaining control in the hands of the existing directors.” After stating the facts, the learned Judge said:

“The question is whether the directors were justified in acting as they did, or whether their conduct was a breach of the fiduciary powers which they possessed under the arti- cles. What they did in fact was to-override the wishes of the holders of the majority of the shares of the company for the time being by the issue of fresh shares issued solely for that purpose.” Then after referring to Fraser v. Whalley and Punt v.Symons & Co. Ltd. (supra), the learned Judge concluded:

“The basis of both cases is, as I understand, that directors are not entitled to use their powers of issuing shares merely’ for the purpose of maintaining their control or the control of themselves and their friends over the affairs of the company, or merely for the purpose of defeating the wishes of the existing majority of shareholders. That is however, exactly what has happened in the present case. With the merits of the dispute as between the directors and the plaintiff I have no concern whatever.

The plaintiff and his friends held a majority of the shares of the company, and they were entitled, so long as that majority remained, to have their views prevail in accordance with the regulations of the company, and it was not, in my opinion, open to the directors, for the purpose of convert- ing a minority into a majority, and solely for the purpose of defeating the wishes of the existing majority, to issue the shares which are in dispute in the present action.” In the result, the shares allotted to the defendants were declared void.

(1) L.R. [1920] 1 Ch. 77.

424 It will be noticed that in each of the three cases the act of the directors was not only not of advantage to the company but was in essence to its detriment in that it was calculated to reduce the existing majority into minority and to prevent the majority of the existing shareholders from exercising their discretion with respect to what they con- ceived to be in the best interests of the company. Those cases were not cases of mixed motives at all. The only motive operating in those cases in the minds of the direc- tors was detrimental to the interests of existing sharehold- ers and, therefore, to the company itself. Our attention was drawn to Palmer’s Company Law, 18th Edition, p. 183, where it is stated that “in exercising their powers, whether general or special, directors must always bear in mind that they are in a fiduciary position, and must exercise their powers for the benefit of the company, and for that alone.” Relying on the words “and for that alone,” it is urged that the power to issue shares must be exercised wholly and solely for the benefit of the company, that there must not be any other motive whether or not that other motive is injurious to the company and that if that power is exercised for that purpose and also for some other purpose then irre- spective of the nature of that other purpose the directors would be guilty of an abuse of their power. I am not pre- pared to read the passage in the way urged by learned coun- sel for the plaintiffs. None of the cases cited on that point in Palmer’s Company Law was concerned with mixed motives at all. In none of them was there any motive bene- ficial to the company or to the existing shareholders. In my view what that passage means is that the power must be exercised for the benefit of the company and that as between the directors and the company there must be no other motive which may operate to the detriment of the company. If the directors exercise the power for the benefit of the company and at the same time they have a subsidiary motive which in no way affects the company or its interests or the existing shareholders then the very basis of interference of the Court is absent, for, as I have pointed out, the Court of equity only intervenes in order 425 to prevent a breach of trust on the part of the directors and to protect the cestui que trust, namely the company and possibly the existing shareholders. If as between the directors and the company and the existing shareholders there is no breach of trust or bad faith there can be no occasion for the exercise of the equitable jurisdiction of the Court. I find support for my views in the following observations of their Lordships of the Judicial Committee in Hirsche v. Sims(1):

“If the true effect of the whole evidence is, that the defendants truly and reasonably believed at the time that what they did was for the interest of the company, they are not chargeable with dolus malus or breach of trust merely because in promoting the interest of the company they were also promoting their own, or because they afterwards sold shares at prices which gave them large profits.” On the facts of this case the concurrent finding is that the company was in need of funds and, therefore, the issue of further shares was clearly necessary and is referable to such need. The further motive of keeping out the Singhania group, who are not yet shareholders but are strangers, does not prejudicially affect the company or the existing share- holders and the presence of such further motive cannot vitiate the good motive of finding the necessary funds for the company. In my judgment it is impossible to hold that the issue of fresh shares was, in the circumstances, illegal or void.

Re (iii):–Learned counsel for the plaintiffs contends that both the Courts below were in error in holding that there has been no contravention of the provisions of section 105-C of the Indian Companies Act. That section is in the following terms :– “Where the directors decide to increase the capital of the company by the issue of further shares such shares shall be offered to the members in proportion to the existing shares held by each member (irrespective of class) and such offer shall be made by notice specifying the number of shares to which the member is entitled, and limiting a time within which the offer, if (1) [1894] A.C. 654, at pp. 660-661.

426 not accepted, will be deemed to be declined; and after the expiration of such time, or on receipt of an intimation from the member to whom such notice is given that he de- clines to accept the shares offered, the directors may dispose of the same in such manner as they think most bene- ficial to the company.” This section was added to the Indian Companies Act in 1936.

The first question is whether the section contemplates increase of capital above the authorised limit, or only below the authorised limit. Learned Attorney General appear- ing for the company urges that the words further shares” must be read in conjunction with the words “decide to increase the capital of the company” and, so read, must mean shares which are issued for the purpose of increasing the capital beyond the authorised capital.

He contends that section 105-C has no application to this case. Section 50 deals with, among other things, alteration of the conditions of the Memorandum of Association of the company by increasing its share capital by the issue of new shares. The very idea of alteration of the memorandum by the issue of new shares clearly indicates that it contemplates an increase of the share capital above the authorised capi- tal with which the company got itself registered. This increase can only be done by the company in a general meet- ing as provided in sub-section (2) of section 50. This increase above’ the authorised limit cannot possibly be done by the directors on their own responsibility. Section 105-C, however, speaks of increase of capital by the issue of further shares. The words used are capital and not share capital and further shares and not new shares. It speaks of increase by the directors. Therefore, the section only contemplates such increase of capital as is within the competence of the directors to decide upon. It clearly follows from this that the section is intended to cover a case where the directors decide to increase the capital by issuing further shares within the authorised limit, for it is only within that limit that the directors can decide to issue further shares, unless they are precluded from doing even that by the regulations of 427 the company. It is said that section 105-C becomes applica- ble after the company in a general meeting has decided upon altering its memorandum by increasing its share capital by issuing new shares. If the company at a general meeting has decided upon the increase of its share capital by the issue of new shares, then it is wholly inappropriate to talk of the directors deciding to increase capital, because the increase has already been decided upon by the company itself. Further, after the company has at a general meeting decided to increase its share capital by the issue of new shares, the increased capital becomes its authorised capital and then ii the directors under section 105-C decide to increase the capital by the issue of further shares, then this decision is nothing more than a decision to raise capital within the newly authorised limit. Final- ly, if section 105-C were to be held applicable to the case of an increase of capital above the authorised limit then such construction will lead to anomalous results so far as the companies which have adopted Table A, for the section is not consonant with Regulation 42 of Table A which, as will be shown hereafter, applies to increase of capital beyond the authorised limit. If the Legislature intended that section 105-C should apply to all companies in the matter of increase of capital above the authorised limit, then the simplest thing would have been to make Regulation 42 a compulsory regulation, instead of introducing a section which in its terms differs from Regulation 42 and which therefore makes the position of companies which have adopted Table A anomalous. It appears to me, therefore, for reasons stated above, that section 105-C becomes applicable only when the directors decide to increase capital within the authorised limit by the issue of further shares. In this view of the matter that section is clearly applicable to the facts of this case.

The next question is whether the directors have, in the matter of issuing and offering further shares in the present case, been guilty of any contravention of the provisions of this section. Learned counsel for 54 428 the plaintiffs contends that they have, because they have not offered the whole lot of shares to the shareholders in proportion to the existing shares held by them. It is pointed out that although the directors decided to issue 4,596 further shares they have only offered four shares to every five shares held by the shareholders which works out at 4,323 1/5 shares which leaves 272 4/5 shares in the hands of the directors which they have reserved power unto themselves to dispose of in such manner as they think fit.

Learned Attorney-General appearing for the company sub- mits:

That section 105-C should be construed in the light of Regulation 42 in Table A of the Indian Companies Act, 1913;

(b) That in order to prevent absurdity and to give business efficacy to the section, the words “as nearly as circumstances admit” should be read into the section; and (c) That in any event the directors have not contravened the provisions of the section even if the same be literally construed.

Each of these points requires serious consideration.

As to the first point it should be remembered that section 105-C was introduced in the Act only in 1936. There is no counterpart of it in the English Act even now. Prior to 1936 there was no check on the powers of the directors to issue blocks of shares, within the authorised limit, to themselves or to their nominees, unless their powers were circumscribed by the Articles of Association. One of the mischiefs of the managing agency system which prevails in this country was that the managing agents, who usually dominated the board of directors, could, to secure their own position, induce the board to issue blocks of preference shares to the managing agents or their nominees. To check this mischief section 105-C was introduced in the Indian Act in 1936. As regards the increase of capital beyond 429 the authorised limit it could only be done by the company.

The shareholders could, while sanctioning such increase, protect themselves by giving special directions to the directors as to the mode of disposal of the new shares.. In the model Regulations set forth in Table A of the 1882 Act under the heading “Increase of Capital” are grouped three Regulations 26 to 98. Regulation 27 was in the following terms:

“(27) Subject to any directions to the contrary that may be given by the meeting that sanctions the increase of capital, all new shares shall be offered to the members in proprtion to the existing shares held by them, and such offer shall be made by notice specilying the number of shares to which the member is entitled, and limiting a time within which the offer, if not accepted, will be deemed to be declined, and after the expiration of such time, or on the receipt of an intimation from the member to whom such notice is given that he declines to accept the shares of- fered, the directors may dispose of the same in such manner as they think most beneficial to the company.” In Table A of our present Act under the heading “Altera- tion of Capital” are to be found three corresponding Regula- tions 41 to 43. Regulation 42 is as follows:– “(42) Subject to any direction to the contrary that may be given by the resolution sanctioning the increase of share capital, all new shares shall, before issue, be offered to such persons as at the date of the offer are entitled to receive notices from the company of general meetings in proportion, as nearly as the circmustances admit,. to the amount of the existing shares to which they are entitled.

The offer shall be made by notice specifying the number of shares offered, and limiting a time within which the offer, if not accepted, will be deemed to be declined, and after the expiration of that time, or on the receipt of an intima- tion from the person to whom the offer is made that he declines to acccpt the shares offered, the directors may dispose 430 of the same in such manner as they think most beneficial to the company. The directors may likewise so dispose of any new shares which (by reason of the ratio which the new shares bear to shares held by persons entitled to an offer of new shares) cannot, in the opinion of the directors, be conveniently offered under this article.” The words underlined are new and are not to be found in Regulation 27 of Table A of the 1882 Act. The scheme of the 1882 Act, as of our present Act, and the language used in the two regulations quoted above clearly indicate, to my mind, that they deal with that kind of increase of share capital which involves an alteration of the conditions of the memorandum which the company alone can do by issuing new shares. These Regulations do not purport to deal with in- crease of capital which is within the competency of the directors to decide upon. In that kind of increase of capi- tal beyond the authorised limits these regulations give the directors certain latitude, subject, of course, to any directions to the contrary that may be given by the resolu- tion of the shareholders in general meeting sanctioning such increase. The only difference between Regulation 27 of 1882 and Regulation 42 of our present Act is that under the last mentioned Regulation, in the absence of any direction to the contrary, the discretion of the directors has been widened by the introduction of the words underlined above. This company was incorporated in 1908 under the Act of 1882. It did not adopt the Regulations of Table A of the 1882 Act but article 45 of its Articles of Association proceeds more or less on the lines of Regulation 27 of Table A of the 1882 Act. The discretion given to the directors under article 45 is, therefore, obviously narrower than that left to the directors under Regulation 42 of Table A of the present Act.

Then came section 105C in 1936. As already pointed out, that section deals with increase of capital within the authorised limit which the directors can decide upon without reference to the shareholders in a general meeting of the company. The legislature had before it both Regulation 27 of Table 431 A of 1882 and Regulation 42 of Table A of the Act of 1913.

It chose to adopt the language of Regulation 27 in prefer- ence to that of Regulation 42. The absence in section 105-C of the words I have underlined in Regulation 42 cannot but be regarded as deliberate. And I can conceive of very good reasons for this departure. In the case of increase beyond the authorised limit, that can be done only by the company in general meeting and the shareholders can protect them- selves by giving directions to the contrary and, therefore, subject to such directions a wider latitude may safely be given to the directors. But in the case of increase of capital within the authorised limit which the directors may do without reference to the shareholders the legislature did not think it safe to leave an uncontrolled discretion to the directors. The mischief sought to be remedied required this curtailing of the directors’ discretion. In my judgment it is impossible to construe section 105-C in the light of Regulation 42 for several reasons. Regulation 42 and section 105-C do not cover the same field and cannot be said to be in pari materia. The omission of the underlined words was obviously deliberate. The difference in the language of the two provisions in the same statute cannot be overlooked as merely accidental. And lastly the reading of these words of Regulation 42 in section 105-C will frustrate what I con- ceive to be the underlying reason for the introduction of the section. In my judgment the first point urged by the learned Attorney-General which found favour with the Courts below cannot be accepted.

The second point urged by the learned Attorney General is founded on the supposed necessity of introducing the words “as nearly as the circumstances admit” to avoid the absurdity which may flow from a literal construction of section 105-C. It must be remembered that the cardinal rule of interpretation of statutes is to construe its provisions literally and grammatically giving the words their ordinary and natural meaning. It is only when such a construction leads to an obvious absurdity which. the legislature cannot be supposed to have intended that the Court in 432 interpreting the section may introduce words to give effect to what it conceives to be the true intention of the legis- lature. It is not any and every inconvenience that justi- fies adoption of this extreme rule of construction. The section literally construed is quite inteligible and may easily be applied to many cases where the further shares issued bear a uniform and round proportion. Merely because a literal construction of the section leads to inconvenient result in a particular case cannot, in my opinion, justify the application of such a drastic rule of construction as is urged by the Attorney-General. Even in this case there would have been no inconvenience if the directors decided for the issue of 4,053 shares which could have been offered in the proportion of three shares to every four shares held by each shareholder. It is true that ordinarily it is for the directors to judge as to the exact amount of capital needed by the company but in arriving at their decision they cannot overlook the limitations put upon their power by the section with respect to the proportion in which the further shares are to be offered by them to. the shareholders.

Further, the supposed inconvenience can be easily avoided by a reference to the shareholders in a general meeting by asking them to increase the share capital beyond the autho- rised limit to such an amount as would permit proportionate disposal of the further and new shares. In my opinion there is not sufficient force in the contention which should induce the Court to depart from the ordinary and golden rule of interpretation I have mentioned above.

The last point urged by the ]earned Attorney General appears to me to be of substance. On a strictly literal construction of the section the directors must perforce offer all the further shares to the shareholders in propor- tion to their respective holdings. Section 105-C comes into operation after the directors have decided to issue further shares. The section does not in terms provide that such offer must be made all at once or at any particular point of time and I see no reason to import any such requirement in the section.

433 The underlying object of the section is to effect equitable distribution of the further shares. Here the shares have been offered in the proportion of four shares to every five shares. There can be no suggestion of favouritism in this offer. Every shareholder will get his proportion if he so desires. The majority will remain the majority if every one takes up the shares offered to him. It is true that 272-4/5 shares remain in hand. At best although issued they have not been offered to anyone. I dO not agree that under clause 8 of the directors’ resolution the directors can dispose of those 272-4/5 shares in any manner they please before offer- ing them proportionately to the existing shareholders. That clause, on a true construction of the resolution as a whole, covers only those shares which have been actually issued but have not been applied for. In point of fact the directors have not yet allotted any of these 272-4/5 shares. If and when the directors allot these shares otherwise than in due course of law, i.e., with.out offering them to the share- holders, the shareholders will then have cause for complaint and may then come to Court for redress. It is said that 272-4/5 shares cannot in future be offered to so many share- holders in a reasonable proportion. If it cannot be done, these odd shares will remain in hand until the company at a general meeting decides to increase the share capital by issuing new shares and then these odd shares together with new shares will be easily capable of being offered to the shareholders proportionately. These special considerations which arise in the case of this company by reason of its own peculiar circumstances cannot, in my opinion, affect or alter the meaning and effect of the section. From all that I can see, up to the present time, there has been no contra- vention of the provisions of section 105-C. In my view the directors have substantially complied with the requirements of the section and the plaintiffs can have no grievance.

They rushed to Court prematurely.

For the reasons stated above, I am clearly of opinion that the conclusions of the Courts below were 434 right and no ground has been made out for interfering with the same. The result, therefore, is that this appeal is dismissed with costs.

MUKHERJEA J.–I agree that this appeal should be dis- missed and I concur substantially in the reasons which have been given by my learned brother Mr. Justice Das in his judgment.

Appear dismissed.

Agent for the Appellants: S.P. Varma.

Agent for the Respondents: Rajinder Narain.

The post Nanalal Zaver & Anr Vs. Bombay Life Assurance Co. Ltd. & Ors appeared first on B&B Associates LLP.

SHETH MANEKLAL MANSUKHBHAI …PETITIONER
Vs.
MESSRS. HORMUSJI JAMSHEDJI GINWALLAAND SONS. …RESPONDENT

DATE OF JUDGMENT: 21/03/1950

BENCH: MAHAJAN, MEHR CHAND FAZAL ALI, SAIYID MUKHERJEA, B.K.

CITATION: 1950 AIR 1 1950 SCR 75

CITATOR INFO : RF 1977 SC2425 (5)

ACT:

Transfer of Property Act (IV of 1882), 8. 53-A–Agree- ment to lease evidenced by correspondence–Lessee put in possession–Acceptance of rent for several years–No regis- tered lease deed–Suit for ejectment of lessee as trespass- er–Maintainability–Doctrine of partperformance.

Held, that the correspondence which passed between the defendant’s predecessor-in-title and the Taluqdari Officer, the letter sent by the latter to the Government, and the Resolution of the Government dated 5th September, 1917, proved that there was a contract in writing to grant a lease on the terms.stated in the Taluqdari Officer’s letter, and as the defendant’s predecessor was put in possession in furtherance of this contract and the rents agreed upon were accepted for several years, s. 53-A of the Transfer of Property Act was applicable to the case and the plaintiffs were not entitled to eject the defendant.

Judgment of the Bombay High Court reversed.

APPEAL from the High Court of Judicature at Bombay: Appeal No. XXXVII of 1949.

This was an appeal from a judgment and decree of the Bombay High Court dated 9th March, 1943, in Second Appeal No. 717 of 1940, varying the decree of the Assistant Judge, Ahmeda- bad, in Appeal No. 173 of 1936 reversing the decree of the joint Sub-Judge, Ahmedabad, in Suit No. 830 of 1933.

R.J. Thakur, for the appellant.

Nanak Chand Pandit, (Diwan Charanjit Lal, with him), for the respondents.

1950. March 21. The judgment of the Court was deliv- ered by MAHAJAN J .–This is an appeal from the judgment and decree of the High Court of Bombay dated 9th March 1943 and made in Second Appeal No. 717 of 1940 varying the decree of the Assistant Judge, Ahmedabad, in Appeal No. 173 of 1936 reversing the decree of the Joint Sub-Judge, Ahmedabad, in Suit No. 830 of 1933.

The suit out of which this appeal arises was filed by the respondent firm in ejectment to recover possession of survey Nos. 222, 223, 225 and 226 situate in Rampura in Ahmedabad district and for mesne profits, as early as July, 1933, and during its 17 years’ span of life it had a some- what chequered career. Those responsible for drawing up the pleadings did not take pains to comprehend correctly as to what they were about and the whole litigation was conducted in a slovenly and slipshod manner. Evidence which should have been produced at the beginning was allowed to be produced at a much later stage after the case went back on remand and the suit was determined by the Assistant Judge on fresh issues and fresh materials. It was in this confused state of the record that it was eventually decided by the High Court and its judgment is by no means satisfactory, The long time taken in deciding the suit which involved determination of a few simple issues is such as is calculat- ed to bring into ridicule the administration of justice.

77 There is a talukdari estate called the Bhankoda estate in Viramgam taluka in Ahmedabad district. It is jointly owned by several talukdars in different shares and comprises twelve villages one of which is Rampura in which the suit lands are situate. By Government Resolution No. 8170, dated 30th August 1912, the estate was taken under Government management under section 28 of the Gujarat Talukdars Act (Bombay Act VI of 1888). The firm of Shah Manilal Maganlal and Bros. (predecessors in interest of the appellant) de- sired to erect a ginning factory on survey Nos. 228, 225, and 226 and with that object approached the Talukdari Set- tlement Officer for a permanent lease of these survey num- bers. The said officer agreed to grant a lease subject to sanction of Government. By Resolution No. 10795 of 1917 dated 5th September 1917 the Government of Bombay granted the requisite sanction. Exhibit 181 is a certified copy of the letter from the Chief Secretary to Government to the Commissioner and to the Talukdari Settlement Officer and in detail it mentions the various steps taken to effect the transaction.

On 9th December 1916 an application was made by Shah Manilal Maganlal in writing signed by him to the Talukdari Settlement Officer offering to take a permanent lease of the above mentioned survey numbers on an annual rental of Rs.

290 for the purpose of erecting a ginning factory. On 12th July 1917 the said officer accepted provisionally this offer after taking into consideration the objections raised by some of the talukdars in respect of the grant of a lease.

He submitted the papers to government with the following recommendations :– “As the petitioner was in urgent need to start opera- tions during the current ginning season I have in anticipa- tion of Government sanction permitted him to enter upon the land and have the honour to approach you for sanction under section 27 (A) of the Court of Wards Act, the provisions of which have been made applicable to Talukdari Estates by section 29 (G) of the Gujarat Talukdars Act,” 78 The conditions of the lease agreed upon by the parties were annexed with this letter and a copy of the offer was also sent to Government. Ex. 181 recites the contents of the offer and states the undertaking given by the lessee. There is intrinsic evidence within its contents to show that these writings were signed by the proposer. The Talukdari Settle- ment Officer in a signed writing accepted the offer and sent it for Government sanction. It further appears that he communicated his acceptance to the lessee and agreed to give a lease if Government gave sanction. The survey numbers in question were in possession of tenants and it was agreed that the lessee would take possession after making private settlements with them. It was also agreed that if no such private arrangement could be made, then the settlement officer would take steps to issue ejectment notice against the tenants. On 20th July, 1917, the Commissioner forwarded the papers to Government with his recommendations and the Government on 5th September, 1917, sanctioned the arrange- ment agreed to by the Talukdari Settlement Officer with Shah Manilal Maganlal. The sanction order is signed by the Chief Secretary to the Government and it contains an endorsement of its having been sent to the officers concerned. It is thus clear that a binding agreement to lease the survey numbers in question was effected between the Talukdari Settlement Officer and Shah Manilal Maganlal with the sanc- tion of the Government. Though a draft of a formal deed of lease was prepared, no such document was formally executed or registered for reasons which it is not necessary to state herein.

Soon after the agreement the lessee took possession of the survey numbers in suit and put up thereupon a ginning and a pressing factory, a bungalow, engine rooms and other structures. He tendered the agreed rent to the Talukdari Settlement Officer who received it from him. He continued receiving it for about two years when the estate was re- leased from the management of the Government and came under the management of the talukdars. The manager appointed by the talukdars continued to receive rent from the lessee as had been settled by the Talukdari Settlement Officer.

79 On 4th May, 1924, a possessory mortgage of the ginning factory along with all its buildings was effected by Shah Manilal Maganlal in the sum of Rs. 1,40,000 in favour of the defendant. The mortgage included in the schedule of the mortgaged property some other property as ‘well. The two contestants in the suit, the defendant and the plaintiffs, acquired their rights in this property during the years 1924-25. The defend ant came in as a mortgagee as above stated, while the plaintiffs came in as ijaradar and assign- ee of certain mortgage rights. The plaintiffs since then have been receiving the rent according to the grant made by the Talukdari Officer. In the year 1933 the appellant purchased the equity of redemption of the suit property at a court auction and became vested with all the rights of Mani- lal Maganlal in this property, the value of which has now been estimated in the neighbourhood of Rs. 38,000.

In the year 1933 the plaintiffs discovered that the defendant had no registered lease in his favour and therefore in law he was not entitled to the rights of a permanent tenant in respect of the survey numbers in dispute. They therefore instituted the present suit for ejectment of the defendant. In the 2nd and 3rd paragraphs of the plaint it was admitted that in .the course of the correspondence with the Government of Bombay a lease was negotiated between the firm of Shah Manilal Maganlal and the Talukari Settlement Officer in respect of the survey numbers in dispute for a period of fifty years at an annual rental of Rs. 290, but it was stated that because Manilal Maganlal did not execute a formal registered lease they were in possession as trespassers. In the 4th paragraph the authority of the Talukdari Settlement Officer to grant the lease was also challenged. In the 8th paragraph it was said that the plaintiffs received the amount of the lease up to 31st July 1932 and that no notice was necessary to be given, the position of the defendant being that of a trespasser. It was however alleged that a notice was given on 25th December 1930, 11 80 The suit was defended on a number of grounds,inter alia, it was pleaded that the plaintiffs had no right to sue in ejectment, not being the landlord inasmuch as they had not obtained any right in the land itself and had not acquired complete title by an assignment of the whole of the interest of the talukdars in the survey numbers in dispute. It was pleaded that the defendant was a permanent tenant of the survey numbers and that the plaintiffs’ own conduct debarred them from claiming ejectment.

The trial Judge decreed the suit on the finding that as no written lease was forthcoming it should be deemed to be non-existent. It was said that no efforts had been made to show that the Settlement Officer had sanctioned with the approval of the Government a permanent lease in respect of survey Nos. 223 and 225 to Shah Manilal Maganlal. In the concluding part of the judgment it was remarked that the doctrine of equitable part performance could not apply to the present case. Though no specific issue was raised on this point, the matter seems to have been argued at some stage before the trial Judge on facts found or admitted.

There was an unsuccessful effort to obtain a review of this decision on the ground of discovery of fresh materi- als. Thereafter the matter was taken to the court of appeal and it was alleged in ground No. 3 that the Subordinate Judge had erred in not considering the position created in the case by the equitable rule of law embodied in section 53-A of the Transfer of Property Act. On 30th July, 1938, the appellate court made an order of remand under Order XLI, Rule 25, and called for a report on the following two issues:- (1) Whether the plaintiff was a mortgagee in occupa- tion of S. Nos. 222, 223, 225 and 226 ? (2) Whether the suit was bad for non-joinder of parties ? The trial Judge reported on the remand issues against the plaintiffs. He also admitted in evidence a number of documents produced after remand and one of these is Ex. 181.

A point was raised that documents produced after remand Were not relevant to the issues remanded 81 and should not be admitted. This contention was overruled.

The Assistant Judge allowed the appeal on 27th April, 1940.

He held that the plaintiffs had failed to establish their right to maintain the suit either as ijaradars or as assign- ees of mortgage rights. In para. 21 of his judgment he observed as follows :– “Ex. 181 shows that the terms of the lease have been reduced to writing though no regular lease appears to have been executed. On the question whether the lease is binding on the plaintiff, I think section 53-A of the Transfer of the Property Act is a complete answer. Ex. 181 shows that the Talukdari Settlement Officer, with the sanction of the Government, contracted to lease out these lands. The writ- ing is signed by the Government. The terms of the lease can be ascertained clearly from Ex. 181. It is not denied that the defendant’s predecessor-in-title was put in possession of this property in performance of that contract. Also the acceptance by the Talukdari Settlement Officer as well as by the plaintiff of the rent of the property as fixed by that contract shows that. the possession of the defendant and his predecessor-in-title was in part performance of the contract of lease. Admittedly, there is no registered lease. The conditions of section 53-A of the Transfer of Property Act are fully satisfied and the plaintiff cannot, therefore, eject the defendant on the ground that there is no registered lease.” Further on the learned Judge said that section 53-A of the ‘Transfer of Property Act embodied the doctrine of estoppel and a plea to that effect had been taken inasmuch as the defendant had pleaded that the plaintiffs were estopped by their conduct from asking for possession and that therefore no separate issue was raised on this point.

The unsuccessful plaintiffs went up in second appeal against this decision to the High. Court of Bombay. The High Court allowed the appeal and modified the decree of the Assistant Judge. It decreed the plaintiffs’ suit in respect of survey Nos. 223 and 225 and dismissed the suit in respect of survey Nos. 222 and 226, 82 On the question of the plaintiffs’ title to maintain the suit the High Court reached the following decision:- “If it were necessary we would hold that the plaintiff has sufficiently proved that it is entitled to maintain this suit in its capacity as ijaradar as well as assignee from the mortgagees. But we think even apart from that, plaintiff is entitled to bring this suit because on the defendant’s own admission he has paid rent to the plaintiff for three of the suit fields, viz., survey Nos. 223, 225, and 226, and that too not the interest of 84 Dakdas in them but for all the 100 Dakdas. In fact, ever since the plaintiff came on the scene the defendant has treated the plaintiff as the landlord as regards these three survey numbers, and in the present suit, therefore, the defendant cannot dispute the plaintiff’s right to sue.” In a later part of the judgment it was observed that in any case Ginwalla as the manager of the plaintiff firm would be entitled to continue the present suit as receiver. On the second question the learned judges of the High Court observed as follows :- “We do not think it necessary to decide whether if there had been a signed contract by the transferor in the present case, it would have fallen under section 53-A,because, in our opinion, the correspondence Which is summarized in the Government Resolution cannot be regarded as evidence of the contract, and secondly, the terms of the contract also cannot be deduced from the correspondence with any reasona- ble certainty. We, therefore, hold that the Government Resolution on which the defendant relies is no evidence of the writing of a contract referred to in section 53-A of the Transfer of Property Act, and apart from that the defendant has no legal basis on which he can claim to hold the land either as a permanent lessee or for a particular period.” The principal questions canvassed in this appeal are, whether the plaintiff firm has proved its title to maintain the present suit in ejectment against the defendant,’ and whether the defendant is entitled to the benefit of the provisions of sec. 53-A of the Transfer of Property Act. The question as to the maintainability of the suit’ 83 against the defendant without a proper notice was raised before the High Court but permission to argue it was refused because the matter had not been raised in either of the lower Courts.

The appeal was elaborately argued before us by the learned counsel for the parties, but in our view, it is ‘ not necessary to consider and decide all the points urged because we consider that the Assistant Judge was right in entertaining and giving effect to the plea under sec. 53-A of the Transfer of Property Act and we are satisfied that no substantial grounds existed for reversing- that deci- sion in second appeal. This section introduced in the Transfer of Property Act in 1929 is in these terms :– “Where any person contracts to transfer for considera- tion any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part-performance of the contract, taken possession of the property or any part thereof …… and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered …… the trans- feror or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract …… “.

The section is a partial importation in the stat- ute law of India of the English doctrine of part-perform- ance. It furnishes a statutory defence to a person who has no. registered title deed in his favour to maintain his- possession if he can prove a written and signed contract in his favour and some action on his part in part-performance of that contract. In ‘order to find whether the defendant in the present case has satisfied the conditions of the 84 section, it has to be held proved that the Talukdari Settle- ment Officer contracted to give a lease of the survey num- bers in suit to Manilal Maganlal by a writing signed by him and that from this writing the terms of the tenancy can be ascertained with reasonable certainty. It has further to be held established that .the transferee took possession of the property or did any acts in furtherance of the contract. It may be mentioned that in cases of lease the legislature has recognized that the equity of part performance is an active equity as in English law and is sufficient to support an independent action by the plaintiff. (Vide S. 27-A of the Specific Relief Act). This section however applies to con- tracts executed after 1st April, 1930, and has no applica- tion in the present case; but there can be no mariner of doubt that the defence under Section 53-A is available to a person who has an agreement of lease in his favour though no lease has been executed and registered. We are satisfied that the defendant has fulfilled both the condi- tions necessary to attract the application of the section in the present case. The High Court was in error when it held that the correspondence summarised in Ex. 181 could not be treated as evidence of the contract and that its terms could not be reasonably deduced from this document. It is no doubt true that Ex. 181 is merely secondary evidence of the agreement of lease but it is equally true that it is a very reliable piece of secondary evidence coming as it does from government records. It furnishes proof of the fact that there was an acceptance in writing under which the contract to transfer the survey numbers in suit by way of lease was effected by the Talukdari Settlement Officer in favour of Manilal Maganlal. The offer was also in writing signed by the offeror. The Government Resolution which made the agree- ment binding was also in writing and was signed by competent authority. No objection as to admission of secondary evi- dence could be taken in this case as the primary evidence was in the possession either of the plaintiff or of the talukdars, the predecessors in interest and in spite of notice it was not produced. Reference in this connection may be made to the statement of the 85 plaintiff in the witness box which is to the following effect :– “I must have read the correspondence with T.S.O. since it is so recited in the para. 2 of the plaint. I cannot say whether that correspondence is in my office or with the talukdars. I cannot say without that correspondence as to whether T.S.O. has called survey No. 226 as Lalliti and hence the talukdars are not entitled to any income for it. I also cannot say without that correspond- ence that the rents of survey Nos. 225 and 223 were fixed at Rs. 135 and Rs. 115 respectively and that Rs. 45 were to be taken by way of sugar…” In another part of the same statement he said that the talukdars had got the records of the time preceding his management. It appears that the original documents were returned to the talukdars after the discharge of the Taluk- dari Settlement Officer and were in the possession and power of the plaintiff or his predecessors in interest and they were not produced by him in spite of notice. Para. 2 of the plaint clearly recites that there was correspondence between the Talukdari Settlement Officer and the defendant’S prede- cessor in interest under which a lease was negotiated. The plaintiff’s knowledge of this correspondence and its con- tents is thus prima facie established and leads to the conclusion that it was in his possession or power and he has intentionally withheld it. Without a perusal of this corre- spondence the facts recited in para. 2 of the plaint could not have been mentioned in the plaint. Once it is held that Ex. 181 is good secondary evidence of the agreement of lease, there can then be no hesitation in holding that by an offer and an acceptance made in writing and signed by the respective parties an agreement was com- pleted between the Talukdari Settlement Officer and the predecessor in interest of the defendant and that necessary sanction of the’ Government was also in writing signed by the officer concerned. It has further to be held that the terms of the contract can be fairly deduced from the recit- als of this document. The only important clause with which we are concerned in the present case is as to the nature of the tenancy. It is clearly recited therein 86 that the lease was to be of a permanent character and the terms as regards rental could be revised after a period of fifty years. The rent payable is recited in unambiguous terms in the document as Rs. 290 per annum.

It was not denied that the lessee took possession after this agreement was arrived at. It was argued that posses- sion was taken before sanction of the Government was ob- tained in September, 1917. There is however no proof of this except a bare recital in the Talukdari Settlement Officer’s letter to Government that he had permitted the defendant to enter on the land in anticipation of Govern- ment’s sanction. As already pointed out, the possession was with the tenants and had to be taken after entering into an arrangement with them or by issuing notice to them. It is not possible to think that this could have happened in such a short space of time as elapsed between the middle of July and the beginning of September. In any case the factory could not have been built before the sanction of the Govern- ment was received. Not only did the lessee take possession in part-performance of the agreement but he offered the rent agreed upon and paid it not only to the Talukdari Settlement Officer but to all those who subsequently managed the inter- est of the talukdars in the survey numbers in dispute. The original lessee after having entered into possession of the property effected a mortgage of it in favour of the defend- ant. The defendant advanced a substantial sum on security of the property to the lessee. The equity of redemption was sold at an auction sale. The defendant and his predecessor in interest were willing to perform their part of the con- tract. As a matter of fact, they have performed the whole of it. All that remains to be done is the execution of a lease deed by the lessor in favour of the lessee and of getting it registered. The plaintiff in para. 6 of the plaint in unambiguous terms admitted that he received the amount of the lease up to 31st July, 1932, in respect of the survey numbers in dispute. It is difficult to imagine what.

lease he was referring to in the absence of a registered deed of lease. It Could only mean the agreement of lease given in writing 87 and signed by the Talukdari Settlement Officer. It is in pursuance of this agreement of lease that all the subsequent acts above mentioned were done. It-may also be observed that an agreement of lease creating a present demise but not registered is admissible under S. 49 of the Indian Registra- tion Act as evidence of part performance and Ex. 181 is secondary evidence of that agreement. A formal lease is not necessary to attract the application of S. 53-A of the Transfer of Property Act. All that is required is that an agreement in writing signed by the transferor can be gath- ered from the evidence. The correspondence mentioned in Ex.

181 fully establishes that fact.

We are therefore of the opinion that the learned Assist- ant Judge rightly dismissed the plaintiff’s suit and the High Court was in error in interfering with that decision in second appeal. The result therefore is that the appeal is allowed, the decision of the Assistant Judge restored and that of the High Court reversed.The circumstances of the case are such that we would make no order as to costs. The defendant was at fault in not producing all the documentary evidence at the proper stage of the case and he has been enabled to avail himself of the defence furnished to him under S. 53-A by reason of the admission in evidence after remand of Ex. 181, which though not properly admitted at that stage was not rejected by the High Court and could not be rejected at the stage when we dealt with the case. The parties are therefore left to bear their own costs through- out.

Appeal allowed.

Agent for the appellant: S.P. Varma.

Agent for the respondent: Ganpat Rai.

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RAM KRISHNA RAMNATH AGARWALOF KAMPTEE …PETITIONER
Vs.
SECRETARY, MUNICIPAL COMMITTEE,KAMPTEE.UNION OF INDIA AND GO …RESPONDENT

DATE OF JUDGMENT: 14/03/1950

BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN MUKHERJEA, B.K.

CITATION: 1950 AIR 11 1950 SCR 15 CITATOR INFO : RF 1966 SC1089 (55)

ACT:

Government of India Act, 1935, es. 100, 143, 292; Sch.

VII, List 1, Entry 45; List 11, Entry 49–Central Excises and Salt Act (1 of 1944, es. 2, 3–Central Provinces Munici- palities Act (11 of 1922), s. 66 (1) (e)–Import of tobacco within municipality .for manufacturing bidis–Tobacco liable to Central excise duty–Levy of octroi duty by munic- ipality–Legality.

Held, that excise duty and octroi were taxes essentially different in their nature and the power of the Province to levy octroi was not inconsistent with the power of the Centre to levy excise duty on the some goods, and a munici- pality could therefore validly levy an octroi duty on such tobacco under s. 66 (1)(e) of the Central Provinces Munici- palities Act of 1922.

Held further, that there was nothing in the Central Excises and Salt Act or its provisions contrary to the provisions of s. 66 (1) (e) of the Central Provinces Munici- palities Act or to the levy of octroi duty under the same and s. 143 of the Government of India Act, therefore, pre- served the right of the municipality to levy octroi duty under the Act of 1922.

Province of Madras v. Boddu Paidanna and Sons [1942] F.C.R.. 90, Governor-General in Council v. Province of Madras [1942] F.C.R. 129, In re the Central Provinces and Berar Act No, XIV of 1938, 16 [1939] F.C.R. 80, Miss Kishori Sherry v. The King [1949] F.C.R. 650 referred to.

Administrator, Lahore Municipality v. Daulat Ram [1942] F.C.R. 31 distinguished.

Judgment of the High Court of Nagpur affirmed.

APPEAL from the High Court of Judicature at Nagpur: Case No. III of 1948.

This was an appeal from a judgment and order of the High Court of Nagpur (Mis. Civil No. 158 of 1946) dated 9th April, 1948, made on a reference under s. 83 (2)of the Central Provinces Municipalities Act (11 of. 1922) by the Extra Assistant Commissioner, Nagpur. The facts of the case and the arguments of counsel appear in the judgment.

T.J. Kedar and B.B. Tawakley (Sir Narain Andley with them) for the appellant.

Lobo, for the respondent.

M. C. Setalvad, Attorney-General of India, (S.M.

Sikri with him), for the Union of India.

1950 March, 14. The Judgment of the Court was delivered by KANIA C.J.–This is an appeal from the judgment and order of the High Court at Nagpur, made on a reference under Section 83 (2) of the Central Provinces Municipalities Act 11 of 1922, by the EXtra Assistant Commissioner, Nagput.

The appellant is a trader in Kamptee who manufactures bidis.

On the 30th of November, 1945, he brought to Kamptee from outside tobacco to make bidis. A declaration form signed on his behalf stated that the 254 bags of tobacco liable to octroi duty, which had that day arrived at octroi post No.

3, had been brought for use and consumption within the limits of the Municipality. He however put on record his protest against the recovery of the duty which was fixed at Rs. 1,128-2-0. Against the order claiming the amount, the appellant filed an appeal to the Extra Assistant Commission- er with revenue appellate powers, Nagput. He contended that the municipality claimed to levy the duty under Section 66 (1) (e) of the Municipal Act, but they had 17 no right to do so as under Section 3 of the Central Excises and Salt Act, 1944, that excise duty was levied on tobacco by the Central Government and the levy of the octroi duty on the tobacco in question was covered by the excise duty and therefore not permissible. The Appellate Assistant Commis- sioner in making the reference to the Nagpur High Court expressed his opinion that the appellant’s contention that as the bidis were not sold within the municipal limits, duty was not leviable, was unsound. He however thought that because under Section a of the Excise Act, excise duty was levied by the Central Government the levy of the octroi duty was ‘not in consonance with Section 100 of the Government of India Act, 1935, and was ultra vires the Provincial Govern- ment. The High Court rejected the appellant’s contention and disagreed with the view of the Appellate Commissioner. The High Court however granted a certificate under Section 205 (1) of the Constitution Act and the appellant has come in appeal to this Court.

The Central Provinces Municipalities Act was passed in 1922 and the relevant notifications fixing the rates of octroi duty were issued in 1928. No question about the validity of the Act when passed, or of the notifications issued in pursuance thereof has been raised before us. The argument on behalf of the appellant is that as under the Central Excises and Salt Act, I of 1944, tobacco became excisable goods under Item 9 in Schedule I to that Act and continued to be so till it got converted into bidis, the Central Government alone was entitled to levy excise duty on it till then. According to the definition of ‘manufacture’ in the Excise Act that duty could be levied at any stage in the manufacture of bidis and therefore any tax imposed, while tobacco was being converted into bidis, was excise duty. Legislation in connection with excise duty is within the exclusive province of the Central Legislature as shown by Entry 45 of List I in Schedule VII of the Constitution Act. The impost of octroi duty in pursuance of the Municipal Act, before tobacco was made into bidis, is it was argued in conflict with the legislative powers of the Centre. In this 18 connection our attention was drawn to Administrator Lahore Municipality v. Daulat Ram Kapur(1), in which it was held that the levy of octroi duty on salt was not within the powers of the Provincial legislature. It was argued there- fore that under Section 100 of the Government of India Act, octroi duty levied on tobacco under the legislative powers of the Provincial Government was invalid. The only way to reconcile the two Entries, namely, Entry 45 in List I and Entry 49 in List II of the Seventh Schedule, was to read the words “for consumption or use” in Entry 49 as meaning for consumption or use except for manufacture of excisable articles”. So read, the levy of octroi duty on the facts of this case was invalid. In reply to the argument that Sec- tion 292 of the Government of India Act kept alive the old Provincial legislation, namely, the Central Provinces Munic- ipalities Act, and the right to levy octroi duty was saved under Section 143 of the Constitution Act, it was urged on behalf of the appellant that the. provisions of the Excise Act were contrary to the right to levy octroi duty and as that Act was passed in 1944 the right to levy octroi duty saved by Section 148 of the Constitution Act had lapsed. It was argued that although there was no express provision in the Excise Act to that effect, the definition of “excisable goods” and “manufacture” read with Entry 9 in Schedule I and the charging Section 3 in the Act led to that conclusion.

It is clear that both parts of this argument are thus based on the plea that the impost of any duty at any stage before bidis are manufactured is excise duty and therefore the levy of octroi duty is illegal.

Section 66 (1) (e) of the Central Provinces Municipali- ties Act, 1922, runs as follows :– “an octroi on animals, or goods brought within the limits of the municipality for sale, consumption or use within those limits;” The words “excisable goods” and. ” manufacture ” are defined in Section 2 of the Central Excises and Salt Act,, 1944,. as follows .–.’ (1) [1942] F.C.R. 91 .

2. (d) “excisable goods” means goods specified in the First Schedule as being subject to a duty of excise and includes salt;”

2. (f) “manufacture” includes any process incidental or ancillary to the completion of a manufactured product; and (i) in relation to tobacco includes the preparation of cigarettes, cigars, cherots, bidis, cigarette or pipe or hokkah tobacco, chewingtobacco or snuff; and (ii) ……

Section 3 of the Excise Act runs as follows :– “There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in Brit- ish India, and a duty on salt manufactured in, or imported by land into any part of British India as, and at the rates, set forth in the First Schedule …… ” Entry 9 to the First Schedule of the Excise Act is in these terms :– “9. TOBACCO, CURED- ” Tobacco’ means any form of tobacco, whether cured or uncured, and whether manufactured or not,and includes the leaf, stalks and stem of the tobacco plant but does not include any part of a tobacco plant while still attached to the earth;” (Then follows a list of various articles into which tobacco can be converted, like bidis, cigarettes, snuff,etc. with different rates of duty mentioned against each article.) Sections 143 and 292 of the Government of India Act, 1935, run as follows :– “143. (1) Nothing in the foregoing provisions. of this Chapter affects any duties or taxes levied in any Federated State otherwise than by virtue of an Act of the Federal Legislature applying in the State.

(2) Any taxes, duties, cesses or fees which, immedi- ately before the commencement of Part III,of this Act 20 were being lawfully levied by any Provincial Government, municipality or other local authority or body for the pur- poses of the Province, municipality, district or other local area under a law in force on the first day of January, nineteen hundred and thirty-five, may, notwithstanding that those taxes, duties, cesses or lees are mentioned in the Federal Legislative List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by the Federal Legislature”.

“292. Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the law in force in British India immedi- ately before the commencement of Part III of this Act shall continue in force in British India until altered or repealed or amended by a competent legislature or other competent authority.” Section 143 can be considered in two ways. If the Government of India Act did not bring the particular impost of tax by the Provincial Government within the legislative powers of the Centre, by reason of the inclusion of such tax in List I of the Seventh Schedule, the pre-existing right of the Provincial Government to levy such tax remained unaf- fected. If so, Section 143 of the Government of India Act did not affect such legislation and the same continued to be valid and operative under Section 202 of the Constitution Act. If however the levy of .such tax by the Provincial Government was a subject which was within the exclusive legislative power of the Centre by reason of such tax being included in List I of the Seventh Schedule, the levy of such tax under the Provincial legislation continued to be valid until the Central Legislature passed an Act the provisions whereof were contrary to the provisions of the Provincial legislature or to the levy of a tax under the Provincial Act. Examining next the contentions of the appellant it seems clear that octroi duty as levied by the respondent comes within the exact wording of Entry 49 of List 11 of the Seventh. Schedule to the Constitution Act. Prima facie, therefore, there is no reason, to 21 consider the levy of the octroi duty under the Provincial legislation invalid. Such levy remained unaffected by reason of Section 292 of the Constitution Act. The argument of the appellant is that the levy of the octroi duty being at a stage after the excisable article, viz., tobacco, came into existence and became liable to excise duty under the Excise Act, the levy of octroi duty before bidis were made from tobacco, is invalid. In support of this argument the definition of ‘excisable goods’, ‘manufacture’ and the Entry 9 in the Schedule to that Act were relied upon. The error underlying the argument of the appellant is the assumption that any impost of tax from the time tobacco came into existence till the same was converted into bidis is neces- sarily excise duty.

The Federal Court had to consider the distinction be- tween the duty of excise and a tax on sale in The Province of Madras v. Boddu Paidanna and Sons(1). It is there ob- served as follows:–“Plainly, a tax levied on the first sale must, in the nature of things, be a tax on the sale by the manufacturer or producer; but it is levied upon him qua seller and not qua manufacturer or producer. It may well be that ‘a manufacturer or producer is sometimes doubly hit …… If the tax-payer who pays a sales tax is also a manufacturer or producer of commodities subject to a central duty of excise, there may no doubt be overlapping in one sense, but there is no overlapping in law. The two taxes which he is called on to pay are economically two separate and distinct imposts. There is, in theory, nothing to prevent the Central Legislature from imposing a duty of excise on a commodity as soon as it comes into existence, no matter what happens to it afterwards, whether it be sold, consumed, destroyed, or given away …… It is the fact of manufacture which attracts the duty even though ‘it may be collected later. In the case of a sales tax, the liabil- ity to tax arises on the occasion of a sale and a sale has no necessary connection with manufacture or production.” The Court further observed that in the Constitution Act the whole (1) [1942] F.C.R. 90.

22 of the taxing power in this particular sphere (power to impose duties of excise) is expressly apportioned between the Centre and the Provinces, to the one being assigned the power to impose duties of excise, to the other taxes on the sale of goods. It is natural enough, when considering the ambit of an express power in relation to an unspecified residuary power, to give a broad interpretation to the former at the expense of the latter. The case however is different where as in the Constitution Act there are two complementary powers,each expressed in precise and definite terms. There can be no reason in such a case for giving a broader interpretation to one power rather than to the other; and there is certainly no reason for extending the meaning of the expression “duties of excise” at the expense of the Provincial power to levy taxes on the sale of goods.

In The Governor-General in Council v. The Province of Madras (1), the Judicial Committee approved of the distinc- tion drawn in this case between the excise duty and a tax on sale. There the question arose in respect of tax on the sale of excisable goods. Their Lordships observed as fol- lows :–” An exhaustive discussion of this subject (namely, the meaning of the term duty of excise )from which their Lordships have obtained valuable assistance is to be found in the judgment of the Federal Court in Re The Central Provinces and Berar Act No. XIV of 1938(2). Consistently with this decision their Lordships are of opinion that a duty of excise is primarily a duty levied on a manufacturer or producer in respect of the commodity manufactured or produced. It is a tax on goods not on sales or the proceeds of sale of goods. Here, again,their Lordships find them- selves in complete accord with the reasoning and conclusions of the Federal Court in Boddu Paidann case (3). The two taxes, the one levied on a manufacturer in respect of his goods, the other on a vendor in respect of his sales, may,as is there pointed out, in one sense overlap. But in law there is no overlapping. The taxes are separate and (1) [1942] F.C.R. 129. (3) [1942] F.C.R. 90 (2) [1939] F.C.R. 80.

23 distinct imposts. If in fact they overlap, that may be because the taxing authority, imposing a duty of excise, finds it convenient to impose that duty at the moment when the excisable article leaves the factory or workshop for the first time on the occasion of its sale. But that method of collecting the tax is an accident of administration; it is not of the essence of the duty of excise, which is attracted by the manufacture itself. That this is so is clearly exemplified in those excepted cases in which the Provincial, not the Federal, legislature has power to impose a duty of excise. In such cases there appears to be no reason why the Provincial legislature should not impose a duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the same commodity. Whether or not such a course is followed appears to be merely a matter of administrative convenience. So, by parity of reasoning, may the Federal Legislature impose a duty of excise on the manufacture of excisable goods and the Provin- cial legislature impose a tax on the sale of the same goods when manufactured.” This discussion clearly shows that the relevant question is what is the nature of the tax. Excise duty is a tax on manufactured goods. Octroi duty is a tax levied on the entry of goods within a particular area. Under the Excise Act, tobacco becomes excisable goods within the meaning of Item 9 in the Schedule. The subsequent use of such manufac- tured. goods in making different articles only affects the rate of tax. Therefore, tobacco becomes subject to excise duty when it reaches the stage of manufacture mentioned in Item 9 of the Schedule to the Excise Act. Even before it is converted into bidis or any other article mentioned in the entry it has become excisable goods and liable to pay excise duty. The levy of such duty is therefore not in conflict with the levy of an impost on the entry of the goods within a certain area.

It was argued that under the rules framed by the Govern- ment under the Central Excises and Salt Act, 1944, Govern- ment retained control over the movement of the 24 goods from the beginning till the end. This argument is not of assistance in determining the nature of the octroi tax.

As Government has to collect excise duty and the rate of duty varies in respect of different shapes in which the excisable goods are ultimately converteD, there is nothing unnatural in the Government keeping a control and note of the articles till the manufactured article becomes a commod- ity, and is mixed up with the commodities used by the people at large. The argument that Entry 49 in List 11 being in conflict with Entry 45 in List I of Schedule Seven to the Constitution Act, Entry 49 should be read as “for consump- tion or use, except for manufacture of goods”, in our opin- ion, is unsound. In the first place, the approach to the question itself is wrong. When a particular legislation falls within the exact words of an Entry in the Provincial List, under section 100 it is valid and no question of reconciliation arises. A similar argument advanced in regard to a supposed conflict between Entry 19 of List I and Entry 31 of List II was rejected by us in Case No. 27 of 1949: Miss Kishori Shetty v. The King (1). In the present case if the question of the validity of the Provincial legislation arises, on the interpretation of Entry 49 in List II, it appears that the answer must be in favour of the validity of the legislation. The decision in Administrator, Lahore Municipality v. Daulat Ram Kapur(2) does not help the appellant because in that case Entry 47 in List I is only “salt”. A comparison with Entry 45 in List I shows dis- tinctly that Entry 45 is limited to excise duty and is not wide enough to cover tobacco or other goods generally for all purposes of legislation. The observations in that case therefore are not helpful to the appellant.

On the second part of the contention the appellant can succeed only if he establishes that the provisions of the Excise Act are contrary to the levy and recovery of duty under the Provincial Act of 1922. There is no express provi- sion in the Excise Act contrary to the provisions of the Municipal Act. Unless, therefore, it is necessarily implied under the Excise Act, the levy of (1) [1949] F.C.R. 650 (1) [1942] F.C.R. 31 25 the octroi duty under the Municipal Act continues to be valid. On this point again the appellant’s argument is that the levy of a duty at any stage of the manufacture of bidis out 01 tobacco would be the levy of the excise duty and therefore those provisions were contrary to the provisions permitting the levy of the octroi duty. We have already discussed and rejected in the first part of the judgment this contention. It is wrong to think that two independent imposts arising from two different sets of circumstances were not permitted in law. In our opinion, therefore, there is nothing in the Excise Act to make its provisions contrary to the provisions of Section 66 (1) (e) of the Central Provinces Municipalities Act or to the levy of octroi duty under the same. The appeal therefore fails and is dismissed with costs.

Appeal dismissed.

Agent for the appellants: Rajinder Narain.

Agent for the respondent: S.P. Varma.

Agent for the Union of India: P.A. Mehta.

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IN THE SUPREME COURT OF INDIA

BHAWANIPORE BANKING CORPORA-TION, LTD. …PETITIONER
Vs.
GOURI SHANKAR SHARMA …RESPONDENT

DATE OF JUDGMENT : 14/03/1950

BENCH : FAZAL ALI, SAIYID KANIA, HIRALAL J. (CJ) SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN

CITATION : 1950 AIR 6 1950 SCR 25

CITATOR INFO : R 1974 SC 968 (9,44,49)

ACT:

Limitation Act (IX of .1908), .Art. 182, cls. 2 and 3’Execution of decree–Limitation–Starting point–‘ Where there has been a review “, meaning of–Application for re- opening decree under s. 86, Bengal Money-lenders Act dis- missed for default and appeal from order of dismissal– Whether give fresh starting for limitation for execution of decree–Interpretation of Art. 189, cls. 2 and 3.

Held that, even assuming that the word “review” has been Used in Art. 182 of the Indian Limitation Act, 1908, in a wide sense and that the application under s. 36 of the Bengal Money lenders Act was an application for review, cl.

3 of Art. 182 was not applicable to the case inasmuch as the application under. s. 36 having been dismissed for default the court had no occasion to apply its mind to the question whether the decree could or should be re-opened and it could not. therefore be said that “there has been a review” of the decree within the meaning of the said clause.Held also, that the words “where there has been an appeal ” in cl.2 of Art 182 must be read with the words “for the execution of a decree or order” in the 1st column of the Article and the fact that there was an appeal from the order dismissing the application under O. IX, r. 9, made in connection with the proceeding under s. 36 of Money-lenders Act, could not therefore give fresh starting point for limitation under Art. 182, cl. 2,.

Appeal from the High Court of Judicature at Calcut- ta: Civil Appeal No. LI of 1949.

Manohar Lal, (H.K. Mitter with him), for the appellant.

B.C. Mitter, for the respondent.

1950. March 14. The judgment of the Court was deliv- ered by FAZL ALI J.—The only question to be decided in this appeal, which arises out of an execution proceeding, is whether the decree under execution is barred by limitation.

The first court held that the decree was not barred, but the High Court has come to the opposite conclusion, and the decree-holder has, after obtaining a certificate under Section 110 of the Civil Procedure Code, appealed to this Court.

The facts may be briefly stated as follows. On the 21st August, 1940, a preliminary mortgage decree was 27 passed ex parte in a suit instituted by the appellant to enforce a mortgage. On the 19th September, 1940, the judg- ment-debtor made an application under Order IX, rule 13, of the Civil Procedure Code for setting aside the ex parte decree, but this application was rejected on the 7th June, 1941. On the 11th July, 1941, the judgment-debtor filed an application under Section a6 of the Bengal Money lenders Act, for reopening the preliminary decree, but this applica- tion was dismissed for default of appearance on the 20th December, 1941. Thereafter, a final mortgage decree was passed in favour of the appellant, on the 22nd December.

The judgment-debtor then made an application under Order IX, rule 9, of the Civil Procedure Code for the restoration of the proceedings under Section 36 of the Money lenders Act.

The application. was however dismissed on the 1 st June, 1942, both on the ground that no sufficient cause for the nonappearance of the applicant and his failure to take steps in the proceedings was shown and on the ground that no purpose would be served by reopening the preliminary decree after the final decree had been passed. The judgment-debtor thereafter preferred an appeal to the High Court at Calcutta from the decision dismissing his application under Order IX, rule 9, but the appeal was dismissed for non-prosecution, on the 3rd July, 1944. On the 9th April, 1945, the appellant filed an application for executing the decree against the original judgment-debtor, though he had died previously, and this application was dismissed for default on the 11th May, 1945. On the 2nd June, 1945, the present application for execution was filed, and the question which we have to decide is whether this application is in time.

It is quite clear that the application for execution having been made more than three years after the date of the final decree, it must be held to be timebarred, unless, as has been contended before us, the case falls under either clause 2 or clause 3 of article 182 of the Indian Limitation Act. ‘Under these clauses, time to make the application begins to run from– 28 “2. (Where there has been an appeal) the date of the final decree or order of the appellate Court, or the with- drawal of the appeal, or

3. (Where there has been a review of judgment)the date of the decision passed on the review…” It is contended that the case is covered by clause 3,and the ground urged in support of this contention is that the application made by the judgment-debtor for reopening the preliminary mortgage decree under Section 36 of the Money- lenders Act must be regarded as an application for review and time should be held to run from the date of the final order passed in the proceedings connected with that applica- tion. In our opinion, there is no substance in this conten- tion. The important words in clause 3 of article 182 are:(1) “where there has been a review” and (2) “the decision passed on the review “. These words show that before a case can be brought under article 182,clause 8, it must be shown firstly that the court had undertaken to review the relevant decree or order and sec- ondly, that there has been a decision.on.the review.In the present case, even if it be assumed that the word “review’ has been used in article 182 in a large sense and that the application for reopening the decree under Section 36 of the Bengal Money lenders Act was an application for review, the appellant cannot succeed, because the court never undertook or purported to review the decree in question. What actual- ly happened was that the application under Section a6 for reopening the preliminary decree (not the final decree which is the decree sought to be executed) was dismissed for default and the application under Order IX, rule 9, of.the Civil Procedure Code for the restoration of the proceedings under Section 86 of the Money lenders Act was also dis- missed. Even if the fact that the judgment-debtor’s appli- cation under Section 36 was directed against the preliminary mortgage decree is overlooked, that application having been dismissed for default, the court never had occasion to apply its mind to the question as to whether the decree could or should be reopened, and hence it cannot be said that ‘ ‘there ha8 been a review” of the 29 decree. The proceedings under Order II, rule 9, of the Code of Civil Procedure are not material to the present discus- sion, because they did not involve a review of the decree under execution but a review, if it is at all possible to call it a review, (which, in our opinion, it is not), of the order dismissing the judgment debtor’s application under Section 36 for default.

It was also suggested by the learned counsel for the appellant that the case might be held to be covered by clause 2 of article 182 on the ground that, even though no appeal was preferred from the final mortgage decree, the words “where there has been an appeal” are comprehensive enough to include in this case the appeal from the order dismissing the application under Order IX, rule 9, of the Civil Procedure Code, made in connection with the proceed- ings under Section 36 of the Moneylenders Act. This argu- ment also is a highly far-fetched one, because the expres- sion “where there has been an appeal” must be read with the words in column 1 of article 182, viz., “for the execution of a decree or order of any civil Court …… “, and, however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collater- al proceeding or which has no direct or immediate connec- tion with the decree under execution.

In our view, this appeal has no substance, and we ac- cordingly dismiss it with costs.

Appeal dismissed.

Agent for the appellant: P.K. Chatterji.

Agent for the respondent: R.R. Biswas.

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IN THE SUPREME COURT OF INDIA

ABDULLA AHMED. …PETITIONER
Vs.
ANIMENDRA KISSEN MITTER. …RESPONDENT

DATE OF JUDGMENT: 14/03/1950

BENCH: SASTRI, M. PATANJALI DAS, SUDHI RANJAN KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND

CITATION: 1950 AIR 15 1950 SCR 30

CITATOR INFO :
F 1975 SC 32 (19)
E 1980 SC 17 (36)
E 1990 SC1833 (17)

ACT:

Contract Agency Estate broker–Authority to negotiate a sale’ and’secure purchaser ‘–Whether empowers broker to conclude contract–Construction of contract–Broker finding ready and willing to buy for price fixed by principal con- cluding contract with same purchase for lower price -Bro- ker’s right to commission -power of agents.

principal–Principal

Held, per KANIA C.J., FAZL ALl, PATANJALI SASTRI and DAS JJ.–(i) that a house or estate agent is in a different position from a broker at the Stock Exchange owing to the peculiarities of the property with which he has to deal, and an owner employing an estate agent should not, in the ab- sence of clear words to that effect, be taken to have autho- rised him to conclude a contract of sale; but the lack of such authority is not inconsistent with an understanding that the agent is not to be entitled to his commission unless the owner and the purchaser introduced by the agent 31 carried the transaction to completion; (ii) that even if the commission note in the present case were to be construed as making payment of commission conditional on the completion of the transaction, the appellant having “negotiated the sale “and “secured buyers” who made a firm offer to buy for Rs. 1,10,000, acquired the right to the payment of commis- sion on the basis of that price subject only to the condi- tion that the buyers should complete the transaction of purchase and sale; and as this condition was fulfilled when the buyers eventually purchased the property in question, the appellant’s right to commission on that basis became absolute, and could not be affected by the circumstance that the respondent for some reason of his own sold the property at a lower price.

MAHAJAN J.–Under the terms of the commission note in the present case the appellant had authority to enter into a binding contract on behalf of the defendant, and, as he had entered into such a contract he was entitled to the commis- sion of Rs. 6,000 according to the terms of the commission note. Even conceding that he had no such authority, under the terms of the commission note the agent was entitled to his remuneration as soon as he introduced a buyer ready and willing to purchase for the price fixed by the owner, wheth- er the owner completed the transaction or not.

Luxor (Eastbourne) Ltd. v. Cooper ( [1941] A.C. 108) distinguished.

Chadburn v. Moore (67 L.T. 257), Rosenbaum v. Belson ( [1900] 2 Ch. 267), Durga Charan Mitra v. Rajendra Nararain Sinha (36 C.L.J. 467), Wragg v. Lovett ([1948] 2. All E.R.

969) referred to.

APPEAL from the High Court of Judicature at Cal cutta:

Civil Appeal No. XLIV of 1949.

This was an appeal by special leave from a judgment and decree of the High Court of Judicature at Calcutta (Hatties C.J. and Mukherjea J.) dated 5th January 1948 which varied a judgment passed by a single Judge sitting on the Original Side of the same High Court (Gentle J.) dated 11th June, 1945. The facts of the case and the arguments of the Counsel appear fully in the judgment.

M.C. Setalvad (A. K. Sen with him), for the appellant.

B. Sen, for the respondent.

1950. March 14. The judgment of Kania C. J, and Fazl Ali, Patanjali Sastri and Das JJ., was delivered by Patan- jali Sastri J.: Mahajan J. delivered a separate judgment.

32 PATANJALI SASTRI J.–This is an appeal by special leave from a judgment and decree of the High Court of Judicature at Fort William in West Bengal dated 5th January, 1948, which varied a judgment and decree passed by a single Judge on 11th June, 1945, on the Original Side of the same Court.

The appellant who is carrying on business as an estate broker in Calcutta was employed by the respondent on the terms mentioned in a commission letter dated the 5th May, 1943, to “negotiate the sale” of premises No. 27, Amratolla Street, Calcutta, belonging to him. In pursuance of this contract the appellant found two persons who were ready and willing to purchase the property for Rs. 1,10,000, and by letters exchanged with them on 2nd June, 1943, he purported to conclude a contract for the sale of the property and communicated the same to the respondent by a letter of even date. The respondent, however, entered into an agreement on 9th June, 1943, with a nominee of the said persons for the sale of the property for Rs. 1,05,000 and eventually execut- ed a conveyance in their favour on 8th December, 1943.

Thereupon the appellant brought the suit alleging that the contract concluded by him with the purchasers for Rs.

1,10,000 on the 2nd June, 1943, was binding on the respond- ent and claimed that he was entitled to the payment of Rs.

6,000 as remuneration in accordance with the terms of his employment as he had done all that he was required to do on behalf of the respondent. In the alternative he claimed the same sum as damages for breach of contract. In defence to the suit the respondent pleaded, inter alia, that the appel- lant had no authority to conclude a binding contract for sale with any one, that the purchasers refused to complete the transaction alleging that they had been induced by the fraudulent misrepresentation of the appellant to agree to a price of Rs. 1,10,000, that the subsequent sale was effected independently of the appellant, and that the appellant was not therefore entitled to any remuneration or damages, 33 Gentle J. who tried the suit found that the terms of the appellant’s employment did not authorise him to conclude a contract of sale and that the letters of 2nd June, 1943, did not effect a contract of sale binding on the respondent.

The learned Judge, however, rejected the respondent’s case that the purchasers refused to purchase on the ground of any fraudulent misrepresentation by the appellant and that the negotiations were later resumed afresh directly between the respondent and the purchasers, and came to the conclusion that the agreement to sell of the 9th June, 1943, and the subsequent conveyance of 8th December, 1943, were due solely to the efforts of the appellant in bringing the parties together as potential buyers and seller. The learned Judge refused to accept the suggestion that the sale was in fact effected for Rs. 1,10,000 as not being supported by any evidence but found that the reduction of the price by Rs.

5,000 from Rs. 1,10,000 for which the purchasers were ready and willing to buy the property, was made only for the purpose of depriving the appellant of his legitimate remu- neration of Rs. 6,000. He accordingly held that the appel- lant, who had performed his part of the contract by finding two persons who were ready, able and willing to buy at Rs.

1,10,000 was entitled to the commission claimed.

The Division Bench (Harries C.J. and Mukherjea J.) which heard the appeal of the respondent, agreed with the trial Judge that the appellant’s authority did not extend to the concluding of a binding contract for sale of the property, but differed from his view that all that the appellant was required to do was to introduce a purchaser who was ready and willing to buy for Rs. 1,10,000 and that he was entitled to his commission whether or not the property was sold at that price or at all. They held, following certain observa- tions of Lord Russell of Killowen and Lord Romer in the case next mentioned, that the appellant, having undertaken to “negotiate the sale” and to “secure a buyer”, could not be said to have either secured a buyer or negotiated the sale “unless the sale actually took place or at least a contract had been entered into “. As, 34 however, a sale did take place between the persons in pro- duced by the plaintiff and the defendant, and as that sale, in the view also of the learned Judges, was the “direct result of the plaintiff’s negotiations”, they held that the appellant was entitled to commission but only on the price mentioned in the sale deed, namely,Rs. 1,05,000 which, they found was the price actually received by the respondent. As to why the respondent accepted a reduced price, Harries C.J., who delivered the judgment of the Court, observed:

“All that is known is that persons who undoubtedly made a firm offer of Rs. 1,10,000 for this property eventually bought it for Rs. 5,000 less. I strongly suspect that the price was reduced at the defendant’s instance but I cannot find it as a fact “. In support of their view that the appellant was not entitled to any commision above that payable on a purchase price of Rs. 1,05,000 the learned Judges relied on the decision of the House of Lords in Luxor (Eastbourne) Ltd. v.Cooper (1), where it was held that, in a contract to pay commission upon the completion of the trans- action which the agent was asked to bring about, there was no room for implying a term that the principal shall not without just cause prevent the agent from earning his com- mission, and that it was open to the principal to break off negotiations and refuse to sell even after the agent had produced a customer who was ready and willing to purchase on the principal’s terms. Applying what they conceived to be the principle of that decision, the Appellate Bench varied the decree of the trial Judge by reducing the amount payable to the appellant to a sum of Rs. 1,000.

The commission letter runs as follows:

“I, Animendra Kissen Mitter of No. 20-B, Nilmoni Mitter Street, Calcutta, do hereby authorise you to negotiate the sale of my property, 27, Amratolla Street, free from all encumbrances at a price not less than Rs. 1,00,000. I shall make out a good title’ to the property. If you succeed in securing a buyer for Rs. 1,00,000 I shall pay you Rs. 1,000 as your remuneration. If the price exceeds Rs. 1,05,000 and does not (1) [1941] A.C. 108.

35 exceed Rs. 1,10,000 I shall pay you the whole of the excess over Rs. 1,05,000 in addition to your remuneration of Rs.

1,000 as stated above. In case you can secure a buyer at a price exceeding Rs. 1,10,000 I shall pay you twenty-five per cent. of the excess amount over Rs. 1,10,000 in addition to Rs. 6,000 as stated above. This authority will remain in force for one month from date”.

In the absence of clear words expressing the intention of the parties it is possible to construe these terms in three different ways corresponding to the three patterns into which commission contracts with real estate brokers may broadly be said to fall. In the first place, the letter may be read as authorising the appellant not only to find a purchaser ready and willing to purchase the property at the price required but also to conclude a binding contract with him for the purchase and sale of the property on behalf of the respondent. Secondly, the contract may be construed as promising to reward the appellant for merely introducing a potential buyer who is ready, able and willing to buy at or above the price named, whether or not the deal goes through.

And lastly, the commission note may be understood as requir- ing the appellant to find such a purchaser without authoris- ing him to conclude a binding contract of sale but making commission contingent upon the consummation of the transac- tion. As stated already, the first of these interpretations was rejected by the learned trial Judge as well as by the Appellate Bench, but it was pressed upon us by Mr. Setalvad on behalf of the appellant. We are unable to accept that view. The contract specifies only the price required by the respondent but does not furnish the broker with other terms such as those relating to the payment of the price, the investigation and approval of title, the execution of the conveyance, the parties who are to join in such conveyance, the costs incidental thereto and so on. In fact, the- agree- ment of sale dated the 9th June 1943 entered into by the respondent with the purchasers contains detailed stipula- tions on all these and other matters. Mr. Setalvad laid stress on the statement in the commission note that the sale was to 36 be free from encumbrances and that a “good title” would be made out, but this is no more than a general indication of the nature of the bargain proposed and is perfectly consist- ent with an understanding that further details will be subject to negotiation between the respondent and the pur- chaser when found.

As pointed out by Kekewich J. in Chadburn v. Moore(1) a house or estate agent is in a different position from a broker at the stock exchange owing to the peculiarities of the property with which he is to deal which does not pass by a short instrument as stocks and shares do but has to be transferred after investigation of title as to which various special stipulations, which might be of particular concern to the owner, may have to be inserted in a concluded con- tract relating to such property. The parties therefore do not ordinarily contemplate that the agent should have the authority to complete the transaction in such cases. That is why it has been held, both in England and here, that author- ity given to a broker to negotiate a sale and find a pur- chaser, without furnishing him with all the terms, means “to find a man willing to become a purchaser and not to find him and make him a purchaser”: see Rosenbaum v. Belson(2) and Durga Charan Mitra v. Rajendra Narayan Sinha(3).

Mr. Setalvad next suggested, in the alternative, that the second interpretation referred to above, which was favoured by the trial Judge, should be adopted, and that, inasmuchs, in that view also, the appellant had done all that he was required to do when he introduced to the re- spondent two prospective buyers who were ready and willing to buy the premises for Rs. 1,10,000, he was entitled to commission on that basis. Learned counsel criticised the view of the Appellate Bench, who adopted the third construc- tion, as illogical and inconsistent, and argued that, if authority to secure a buyer were to be taken to mean author- ity to find one who is not only ready and willing to buy but also becomes eventually a buyer in order to entitle the agent to his commission, then such authority must of neces- sity (1) 67 L.T. 257. (2) [1900] 2 Oh. 267. (8) 86 C.L.J.

467.

37 extend to the concluding of a contract of sale, as otherwise the agent could not possibly accomplish the task assigned to him. We do not see much force in this criticism. As already indicated there are cogent reasons why an owner employing an estate agent to secure a purchaser should not, in the ab- sence of clear words to that effect, be taken to have autho- rised him to conclude a contract of sale, and we cannot see how the lack of such authority is inconsistent with an understanding that the agent is not to be entitled to his commission unless the owner and the purchaser introduced by the agent carried the transaction to completion.

In the present case, however, it is not necessary to decide whether or not the commission note imports such an understanding, for a sale was in fact concluded with the purchasers introduced by the appellant who has thus, in any view, earned his commission, both the trial Judge and the Appellate Bench having found that the appellant’s efforts were the effective cause of that sale. The only question is whether the commission is payable on the basis of Rs.

1,10,000 for which the appellant brought a firm offer from the purchasers, or on the basis of Rs. 1,05,000 which is the price mentioned in the conveyance.

As already stated, the Appellate Bench based their decision on the ruling in the Luxor case. The learned Judges reasoned thus: “In that case the principal had re- fused to sell in circumstances which afforded no reasonable excuse. Nevertheless, the House of Lords, reversing the Court of Appeal, held that no commission was payable. It appears to me that the principle is applicable to this case.

Though the agent introduced a purchaser ready and willing to buy for Rs. 1,10,000 the sale for some reason took place at a lower figure. Even if the defendant unreasonably or without just cause refused to conclude the sale at the higher figure, nevertheless the plaintiff has no right to commission based on that higher figure “. We are unable to agree with this reasoning and conclusion. The ground of decision in the Luxor case was that, where commission was made payable on the completion of the transaction, the agent’s right to commission was “a purely 38 contingent right” and arose only when the purchase materia- lised. As Lord Simon put it “The agent is promised a reward in return for an event and the event has not happened “.

But the position is different where the principal, availing himself of the efforts of the agent, concludes the sale with the purchaser introduced by him, as the respondent did in the present case. As observed by Lord Russell of Killowen in the same case, “where a contract is concluded with the purchaser, the event has happened upon the occurrence of which a right to the promised commission has become vested in the agent. From that moment no act or omission by the principal can deprive the agent of his vested right”. Apply- ing that principle, (even if the commission note in the present case were to be construed as making payment of commission conditional on the completion of the transaction, as it was in the English case) the appellant, having “nego- tiated the sale” and, secured buyers” who made a firm offer to buy for Rs. 1,10,000 had done everything he was required by the respondent to do and acquired a right to the payment of commission on the basis of that price which he had suc- cessfully negotiated, subject only to the condition that the buyers should complete the transaction of purchase and sale.

The condition was fulfilled when those buyers eventually purchased the property in question, and the appellant’s right to commission on that basis became absolute and could not be affected by the circumstance that the respondent “for some reason” of his own sold the property at a lower price.’ We accordingly hold that the appellant is entitled to the full commission of Rs. 6,000.

The appeal is allowed, the decree passed on appeal in the Court below is set aside and that of the trial Judge restored. The appellant will have the costs of this appeal including the costs incurred in the lower court as well as his costs of the appeal in that court.

MAHAJAN J.–This is an appeal by special leave from a judgment and decree of the High Court at Calcutta, dated 5th January 1948. By that judgment the High 39 Court varied the judgment and decree of Gentle J. dated 11th June 1945 made in exercise of his original jurisdiction, decreeing the plaintiff’s suit for recovery of a sum of Rs.

6,000.

The appellant is a broker by profession residing at No.

81/1 Phear Lane, Calcutta, and carries on the business of a house agent. The respondent, Animendra Kissen Mitter, re- sides in No. 20B, Nilmony Mitter Street, Calcutta.

The appellant was employed by the respondent to negoti- ate the sale of the respondent’s premises, No. 27, Amratolla Street, Calcutta, on certain terms and conditions on commis- sion and the question raised by this appeal is whether the appellant is entitled to his commission under the circum- stances hereinafter mentioned.

The facts are substantially admitted. By a letter dated 5th May, 1943, the appellant was employed by the respondent for arranging a sale of the premises above mentioned. This letter is in the following terms :– “I, Animendra Kissen Mitter of No. 20B, Nilmoni Mitter Street, Calcutta, do hereby authorize you to negotiate the sale of my above property free from all encumbrances at a price not less than Rs. 1,00,000. I shall make out a good title to the property. If you succeed in securing a buyer for Rs. 1,00,000 I shall pay you Rs. 1,000 as your remuner- ation. If the price exceeds Rs. 1,05,000 and does not exceed Rs. 1,10,000 I shall pay you the whole of the excess over Rs. 1,05,000 in addition to your remuneration of Rs.

1,000 as stated above. In case you can secure a buyer at a price exceeding Rs. 1,10,000. I shall pay you twenty-five per cent. of the excess amount over Rs. 1,10,000 in addition to Rs. 6,000 as stated above. This authority will remain in force for one month from date.” As recited in the letter, the authority given to the appellant was to remain in force for one month from 5th May 1943. Three days before the termination of the appellant’s authority, on 2nd June 1943 the plaintiff appellant obtained an offer from two persons namely, 40 Kishorilal Mahawar and Ramkumar Mahor, for the purchase of the premises regarding which the plaintiff had been author- ized to arrange a sale. This letter is in these terms :- “We are willing to purchase the above house, land and premises at and for the price of Rs. 1,10,000 only free from all encumbrances.

We hereby authorize you to accept the offer for sale of the above premises from Mr. A.K. Mitter for Rs. 1,10,000 on our behalf and send the confirmation to the vendor Mr. A.K.

Mitter on our behalf.” On the same date the plaintiff gave a reply which runs thus :– “I am in receipt of your letter of date and under au- thority from the owner Mr. A.K. Mitter, I hereby confirm your offer for the purchase of the above premises at and for the price of Rs. 1,10,000 free from all encumbrances.” Simultaneously with the issue of this letter he gave intimation of this contract to the respondent in the follow- ing terms :– “Under the authority given to me by you I made an offer for the sale of the above premises to Messrs. Kishorilal Mahawar and Ram Kumar Mahor of No. 27, Amratolla Street, Calcutta, for rupees one lakh and ten thousand only and they have accepted the offer and they have authorized me to send a confirmation to you of the said offer. I accordingly confirm the offer made by you for the sale of the above premises for rupees one lakh and ten thousand only. The draft agreement for sale will be sent to you in the usual course.

A copy of the letter of Messrs. Kishori Lal Mahawar and Ram Kumar Mahor accepting your offer is enclosed herewith.” The letter was received by Mitter on 3rd June 1943, two days before the termination of the plaintiff’s authority.

The respondent made no reply and kept silent. He did not question the agent’s authority in effecting a binding con- tract of sale with the purchasers. He did not repudiate the transaction nor did he 41 expressly ratify it. It was the plaintiff’s case that he had accepted the purchasers’ offer after getting express instructions from the respondent. That case, however, was not accepted in the two courts below.

On 3rd June, 1943, the solicitor for the purchasers wrote to the solicitor for the agent that as the offer of his client for the purchase of 27, Amratolla Street had already been accepted and acceptance communicated to him, the title deeds should be sent so that a conveyance may be prepared. At his request inspection of the letter of au- thority was offered by the plaintiff and a copy of the letter was sent to him by post. On receipt of this copy the purchasers’ solicitor assumed a curious attitude. He said that the copy of the letter sent contained different terms as to commission than those contained in ‘the letter of authority originally shown to his client. The plaintiff was charged with making a secret illegal gain. In spite of these allegations it was asserted that the contract was a concluded one and that being so, the plaintiff was bound to refund to the purchasers whatever moneys he would receive from the vendor. It appears that the purchasers’ attorney did not like the idea of the plaintiff pocketing a sum of Rs. 6,000 out of the purchase price, and this dislike on the part of the purchasers for the broker’s commission has led to further complications resulting in this litigation.

On 9th June, 1943, the purchasers’ solicitor wrote to the plaintiff’s solicitor that his client had cancelled the agreement of purchase. Immediately on receipt of this communication the plaintiff’s solicitor replied expressing surprise at this attitude and accused the other party of a change of front with an ulterior motive. It was said that further instructions would be given after getting instruc- tions from Mitter to whom these letters were forwarded. It seems that the plaintiff was in the dark while writing the letter of 9th June, 1943, of the negotiations that were going on behind the scene directly between the purchasers and the vendor who had kept absolutely silent all this time.

On 9th June the date of the alleged 42 cancellation of the bargain already made, an agreement was executed between Animendra Kissen Mitter, the vendor, and Makkanlal, a benamidar of Kishorilal Mahawar and Ramkumar Mahor (the purchasers) for sale of the premises for a sum of Rs. 1,05,000. The sale deed in pursuance of this agreement was actually executed on 8th December, 1943, in favour of the original purchasers and not in favour of the benamidar.

As pointed out by the learned Chief Justice who delivered the judgment of the appellate Bench, possibly some arrange- ment was made whereby both the defendant and the purchasers benefited by the insertion of a lower price in. the contract of sale and the transfer deed. It seems obvious enough that the defendant having received a firm offer of Rs. 1,10,000 for this property could not have parted with it for Rs. 5000 less except on the basis of some arrangement between himself and the purchasers under which both of them shared the commission instead of paying it to the broker. It was to the advantage of both of them.

On 14th August, 1943, the appellant filed the suit out of which this appeal arises for recovery of Rs. 6,000, brokerage payable under the commission note. He also claimed relief by way of damages in the alternative. The defendant resisted the suit and denied the appellant’s claim. Gentle J. who heard the suit, gave judgment for the plaintiff and passed a decree for a sum of Rs. 6,000, with interest and costs in his favour. He held that on a true construction of the commission note the appellant’s authority was to find a purchaser, namely, a man ready, able and willing to buy at a price acceptable to the respondent and that the appellant had accomplished this when he introduced to the respondent the purchasers and that he had done all that was required of him. It was held that the appellant had no authority to conclude a contract of sale and no binding contract of sale was made on 2nd and 3rd June, 1943, that the transaction effected nominally in the name of Makkanlal and completed on 8th December, 1943, in favour of Kishorilal Mahawar and Ramkumar Mahor, was effected solely through the intervention of the appellant who brought 43 the parties together in the capacity at least of a potential buyer and seller, that the reduction of the price by Rs.

5000 from Rs. 1,10,000 was more than peculiar and that this reduction was made for one purpose and that was to deprive the plaintiff of his remuneration.

The respondent preferred an appeal against this decree.

This was partially allowed by the learned Chief Justice and Mukherjea J. on the following findings:that the appellant procured two persons, viz. Kishorilal Mahawar and Ram kumar Mahor, on 2nd June, 1943, who were willing to buy the property for Rs. 1,10,000, that on.a true construction of the contract of agency no commission was payable until at least a binding contract had been entered into between the appellant and the respondent, that the agent could only be said to have negotiated the sale if he introduced a person willing to buy who eventually bought, that the sale took place between the persons introduced by the appellant and the respondent and it was the direct result of the appel- lant’s agency, that the commission note gave no authority to the appellant to conclude a contract of sale, that Makkanlal with whom the sale agreement dated 9th June was entered into was a benamidar of Kishorilal Mahawar and Ramkumar Mahor, that the appellant had no right to commission on a higher price than for which the sale was actually made and as the sale was actually made for Rs. 1,05,000, his remuneration could not exceed a sum larger than Rs. 1,000. On the basis of these findings the appeal was allowed and the decree granted by Gentle J. was modified and the plaintiff’s suit was decreed in the sum of Rs. 1000. order for costs was made in the appeal.

In this appeal Mr. Setalvad for the plaintiff raised three contentions: (1) That the finding of the court below that on a true construction of the commission note the plaintiff had no authority to make a binding contract re- garding the sale of this property with the purchasers was erroneous; (2) That even if that finding was correct, the plaintiff was entitled to a decree 44 for the sum of Rs. 6,000, because he had done all that he had promised to do for the respondent, viz., he had secured a purchaser for Rs. 1,10,000, who was ready, able and will- ing to buy the property and that if by reason of his own caprice or in collusion with the purchasers, the respondent did not sell the property for Rs. 1,10,000 but chose to receive instead Rs. 1,05,0O0, the plaintiff could not be made to suffer. (3) That on the evidence it should have been held that the sale was made for a price of Rs. 1,10,000 and that the amount entered in the sale deed was fictitious.

The first thing to see is what the parties have ex- pressed in the commission note and what is the true effect of the language employed in it, read in the light of the material facts. As pointed out by Viscount Simon, Lord Chancellor, in Luxor (Eastbourne), Ltd. v. Cooper (1), contracts with commission agents do not follow a single pattern and the primary necessity in each instance is to ascertain with precision -what are the express terms of the particular contract under discussion. I have very carefully considered the terms of this contract in the light of the material circumstances and with great respect to the Judges who decided this case in the High Court, I am of the opinion that the authority given by the principal to the agent authorized him to enter into a binding contract to sale on his behalf. It was not a mere authority authorizing him to find a purchaser willing, able and ready to buy the premises for a price mentioned in the document. The note, to begin with, confers authority on the plaintiff to negotiate a sale free from all encumbrances at a price not less than Rs.

1,00,000. Then it proceeds to say that the principal under- takes to make out a good title to the property. It further provides that if the agent succeeds in securing a buyer for Rs. 1,00,000, he will be paid a sum of Rs. 1,000 as remuner- ation. In the concluding part of the note a scale of com- mission proportionate to the price has been promised in case a price higher than Rs. 1,00,000 was secured. In express words it is said that if the price exceeds Rs. 1,05,000 and does not exceed Rs. 1,10,000, (1) [1941] A .C . 108.

45 “I shall pay you the whole of the excess over Rs. 1,05,000 in addition to your remuneration of Rs. 1,000”, that if a buyer is secured at a price exceeding Rs. 1,10,000, he will be paid 25 per cent of the excess amount over Rs. 1,10,000 in addition to Rs. 6,000. The authority of the agent was to remain in force for one month. In my opinion, the terms of the note as regards the property being free from encum- brances and in respect of the guarantee about title indicate that the agent was given authority to make a binding con- tract. In a bare authority conferring power on a broker for introducing a customer, these stipulations would ordinarily find no place. The words “to negotiate a sale” standing by themselves may not authorize an agent to make a contract of sale. But here they do not stand by themselves. They are followed by two important conditions adverted to above. The agreement further lays down that if the broker succeeds in securing a buyer, he will get a certain remuneration.

Gentle J. observed that the word “securing” here had the meaning of “obtaining a buyer”. I have consulted the same dictionary as the learned Judge did and I find that the true meaning of the expression “securing a buyer” is “to obtain a buyer firmly “. It is not possible in business sense to secure a buyer firmly unless he is bound by an offer and an acceptance. Otherwise, he is entitled to withdraw the offer at any time before acceptance and it cannot in this situa- tion be said that a buyer has been secured firmly. The word” secure” has not the same meaning as the word “find” or “procure”. It gives an idea of safety and certainty. If a buyer is ensured, he is said to be secured and no buyer can be said to be ensured till he is bound by his offer and that cannot happen unless it stands accepted. The agent could only secure a buyer in the strict sense of the term if he had authority to enter into a binding contract. The word “buyer” when used in a strict sense also means “a person who has actually made the purchase” The authority given to an agent to secure a buyer therefore gives him authority to enter into a binding contract of sale with him. Without such an authority it 46 was not possible to secure a buyer. I am further supported in this view by the language employed in the document in respect of the payment of the commission. When the price secured was Rs. 1,10,000, the broker was entitled to 25 per cent. of the excess. It is difficult to think of an excess in relation to price in a stipulation for commission unless the agent has been given an authority to make a contract of sale. If the scope of the authority is only to introduce a customer ready, able and willing to buy the property with an option to the principal to accept or to refuse the offer, then it would have been drawn up in a different language.

The subsequent conduct of both the parties to the .

agreement very strongly supports this view. The evidence of such conduct is relevant in this case because, as pointed out by Viscount Simon, L.C., in the case already referred to, the phrase “finding a purchaser” is itself not without ambiguity. Here the phrase is “securing a purchaser “.

This phrase similarly is not without ambiguity. The evi- dence of conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties. Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. (Vide para. 343 of Hailsham Edn. of Hals- bury, Vol. 10, p. 274).

So far as the conduct of the agent is concerned, he accepted the offer and under his own signature sent the letter of acceptance to the purchasers. In the letter writ- ten by him to his principal he specifically refers to his authority. The correspondence above mentioned clearly shows that both the purchasers and the agent thought that a concluded contract had been made. Information of this was given to the vendor and though he did not speak, his silence in the circumstances of the case seems as eloquent as speech would have 47 been. He never repudiated the contract made by the agent but behind his back entered into a fresh contract with the same persons who had been secured by the agent in a surrep- titious manner. In the witness box he assumed a dishonest and untruthful attitude. The learned trial Judge pronounced him a liar and rightly too. He asserted complete ignorance about the subsequent contract of sale and fixed all blame on to his son When asked about the sale price on the contract of 9th June, 1943, his answer was that he knew nothing about this and said that because his son asked him to sign the deed he did sign it and that was all that he knew. When faced with the sale deed, he said that he did not know what his son had told him as to what was written in the deed. He added that he did not know what consideration was paid to him for the sale. He further professed not to know whether the sale price went into his banking account or was even entered in the account books. After a great deal of prevari- cation he was made to accept the document of 5th May, 1948, and its terms. He admitted that on 3rd June he had a conver- sation with the purchasers and was informed by them that they had entered into a bargain with the broker and that the broker had deceived them about the commission and therefore they would not buy the house. He admitted that he got the letter sent by the plaintiff, but gave no explanation as to why he sent no reply to that letter. With great difficulty he was made to accept his signature on the postal acknowl- edgment about the receipt of the letter sent by the broker to him informing him of the concluded bargain made with the purchasers, and he had to admit that he got that letter from the broker. He also admitted that he took no objection to the letter written by the broker before Kishoribabu had told him the story about the commission of two per cent. In further cross-examination he admitted that what was stated by the broker in the letter of the 2nd June was correct.

The whole evidence given by the defendant consists of eva- sive statements and his ultimate resort was in lapses of memory. It is quite clear from his deposition that the respondent accepted the contract made by the agent and was clearly under the 48 belief that the agent had not exceeded his authority in entering into a binding contract with the purchasers. I am therefore of the opinion that the authority given to the agent in this case was an authority to enter into a binding contract of sale and this he did and he was therefore enti- tled to his commission of Rs. 6,000.

The learned single Judge and the learned Judges of the Court of Appeal found otherwise on this part of the case in view of certain decisions of English Courts and a decision of a Division Bench of the Calcutta High Court. In my opinion, none of those cases touch the present case. Unless the language of two documents is identical, an interpreta- tion placed on one document is no authority for the proposi- tion that a document differently drafted, though using partially similar language, should be similarly interpreted.

In Hamer v. Sharp(1) Sir Charles Hall, V.C., considered the case of an authority of an agent for sale appointed by the owner of an estate. The document in that case was in these terms :– “I request you to procure a purchaser for the following freehold property, and to insert particulars of the same in your Monthly Estate Circular till further notice, viz., my beer house and shop No. 4 and No. 6 Manchester Road, Tenant No. 4, William Galloway, gilder, and No. 6, Albert Vaults, Henry Holmes, beer retailer, and work rooms above. Present net rent, pound 150, price pound 2800, when I will pay you a commission and expenses of fifty pounds. About six years’ lease unexpired.” The Vice-Chancellor observed as follows :– “The question is whether, when an owner of an estate puts it into the hands of an estate agent for sale, stating a price for and giving particulars of the property to enable him to inform intending purchasers, but giving no instruc- tions as to the absolute disposal, and none as to the title of the property, and mentioning none of those special stipu- lations which it might be proper to insert in conditions in reference to the title, (1) L.R. 19 Eq. 108, 49 that is sufficient authority to the agent to sign a contract for the sale of the property for the price stated in the instructions, without making any provision whatsoever as to title. In considering whether the instructions of October, 1872, were a sufficient authority to the agent for that purpose, I cannot help expressing an opinion that such an authority to an agent on the part of a vendor would be highly imprudent, as the purchaser would then be entitled to require, on completion, attested copies of all documents of title, and the expense of them would swallow up, to a great extent, the purchase money. This estate agent must have known that if this property had been offered for sale by public auction there would have been conditions to guard the vendor against being subject to certain expenses, and to prevent the contract becoming abortive by reason of a pur- chaser requiring a strictly marketable title. Could he suppose that he was invested with authority to sign a con- tract without considering what it should contain as regards title ? As an intelligent and well informed person, he could not suppose that he was properly discharging his duty to his principal when he signed the contract which he signed; such a contract was not one within the scope of his authority to sign.” The case therefore stood decided on the construction of the document. It was remarked that in those circumstances it was not necessary to decide what words would confer such an authority. Having said so, the learned Vice-Chancellor proceeded to observe as follows :– “but I nevertheless state my opinion to be, that when instructions are given to an agent to find a purchaser of landed property, he, not being instructed as to the condi- tions to be inserted in the contract as to title, is not authorized to sign a contract on the part of the vendor.

This case can hardly be said to be an authority for the construction of the agreement that we are called upon to construe in the present case. Considerable emphasis was laid in that case on the point that no instructions had been given as to the conditions that had to be 50 inserted in the agreement as to title. In the present case the agent was told that the principal guaranteed marketable title. He was further told that the sale should be free of encumbrances. All the material conditions of sale were thus contained in the present agreement.

The next case on which considerable reliance was placed in the courts below is the case of Chadburn v. Moore (1).

In this case an advertisement appeared in the Daily Tele- graph in these words :– “Forced sale by order of the mortgagees–thirty four well built houses, situated at Grays, close to the station on the London, Tilbury, and Southend Railway, within easy reach of the docks, all let to respectable tenants at rents amounting to pound 620 per annum. Held for about ninety-five years at ground rents amounting to pound 146; price pound 3500, of which pound 3000 can remain on mortgage. For further particulars apply to Messrs. Pinder, Simpson and Newman, 33 and 34, Savilerow, London, W.” In response to this advertisement the plaintiff in that case, James Chadburn, called on Messrs. Pinder, Simpson and Newman, a firm of surveyors and estate agents, for further information. He then went to see the houses and came back and made an offer to purchase them, which was reduced to writing. It appeared from the evidence that the offer was to be submitted by Mr. Newman to his client the defendant, and the plaintiff was to return the next day for an answer.

Newman saw the defendant, who gave him instructions to withdraw five of the houses, and fixed the price, but did not, according to the evidence given in court, give instruc- tions to Newman to enter into a binding contract. Later on the plaintiff called on Messrs. Pinder, Simpson and Newman and two letters were exchanged between them, which were letters of offer and acceptance for the twenty-nine houses at Grays. The offer and acceptance were forwarded by the defendant to the estate agents. The defendant on receiving this offer wrote a letter saying inter alia:- (1) 67 L.T. 257 51 “I think you were, as you usually are, a little prema- ture in actually entering into what might be a binding contract. It is always best to have an offer and acceptance subject to a formal contract being entered into… ” To this Newman replied:- “The offer for the above was accepted under your definite instructions and is a very good get out for you.” Kekewich J., who decided this case, gave the following judgment :– “Having heard Mr. Newman, who was called without the plaintiff knowing what he was going to say, and having read the correspondence, I have little doubt that I have the real transaction–which is a mere transaction between prin- cipal and agent–before me. It might be’ that a different colour would be put upon the matter by the cross-examination of Mr. Moore, but this was not done, and he is entitled to have judgment upon the point of law. Moore undoubtedly authorized Newman to find a purchaser for the houses. It is true the expression does not come out on the correspondence.

On the second occasion Newman appears to have been instruct- ed to negotiate a sale. Whatever else he did do, Moore did not in express. terms authorize Newman to enter into a contract.Newman was to find a purchaser, and to negotiate a sale. Is that sufficient ? No evidence was given as to custom; no evidence was brought to show that the position of a house or estate agent resembles that of a broker on the Stock Exchange or any other exchange. A house or estate agent is in a different position, owing to the peculiarity of the property with which he has to deal, which does not pass by a short instrument as stocks and shares do, but has to be transferred after investigation of title and in ac- cordance with strict laws. An agent fox sale of real estate must be more formally constituted than a seller of stocks and securities of a similar nature. There is no definite authority; in Hamer v. Sharp (1), Hall, V.C., does not (1) 19 Eq. 108.

52 go so far as to say an estate agent cannot enter into any contract, and does not decide the question of authority, but only states his opinion. I must perforce refer to Prior v.

Moore (1), where I indicated my own opinion distinctly, that instruction to a house agent to procure a purchaser and to negotiate a sale does not amount to authority to the agent to bind his principal by contract. Here the circumstance must not be forgotten that Moore on the second occasion told Newman what he was prepared to take for the twenty-nine houses. Newman then jumped at the conclusion that he had power at that price to enter into a contract. That is in my opinion not sufficient, and unless express authority is given to the agent to sell, and for that purpose to enter into a binding contract, the principal reserves his final right to accept or refuse. ” In this case there was no written document between the principal and the agent. From the correspondence it was inferred that the principal had asked the agent to find a purchaser or to negotiate a sale and it was held that within these words an authority to sell could not be spelt out.

Not only is the language of the document with which we are concerned different, but the evidence in the case particu- larly about the conduct of the parties is materially differ- ent. The observations made by the learned Judge must be taken to be limited to the facts found by him. The expres- sions “find a purchaser” “procure a purchaser” “negotiate a sale” standing by themselves may not ‘be sufficient to confer authority on the agent to enter into a binding con- tract on behalf of the principal; but as I have indicated above, the words in the present case are such as by neces- sary implication conferred authority on the agent for making a binding contract.

The next case is Durga Charan Mitra v. Rajendra Narain Sinha (2), a Bench decision of the Calcutta High Court. The document considered in that case bears considerable resem- blance with the document in the present case.

(1) 3 T.L.R.624. (2) 36 C.L.J.467.

53 It was in these terms :– “I hereby authorize you to negotiate the sale of the lands at Tolligunge I have recently purchased from Messrs Martin and Co. If you can secure a purchaser to purchase the same at the gross value of Rs. 16,000, I shall pay you Rs. 200 as your remuneration. If you be able to raise the price to any amount above Rs. 16,000, you will be entitled to the excess amount fully and I shall be bound to mention the whole amount in the conveyance.

Please note that this letter of authority will remain in force for a fortnight only to complete the transaction;

after that this letter will stand cancelled.” The agent acting on this authority sold the property. On receipt of this letter the vendor informed the agent that he would not sell the land. On the acceptance of the agent a suit was brought for specific performance. Sir Asutosh Mookerjee who delivered the judgment of the Bench referred to the cases of Hamer v. Sharp (1), Prior v. Moore (2), Chadburn v. Moore (3), and also Rosenbaum v. Belson (4), and observed that it was well settled that an estate or house- agent, authorized to procure a purchaser, has no implied authority to enter into an open contract of sale, because the transaction mentioned is as specified in the letter, viz., to negotiate a sale after securing a purchaser. There is similarity in the language employed in the letter dealt with in this case and the letter of authority with which we are concerned; but read as a whole, the two documents are drafted with ‘different intents and the true effect of both is not the same. There was no mention of the title being guaranteed by the vendor or of the sale being made free of encumbrances in that case. There was no evidence of sur- rounding circumstances or of the conduct of the parties. On the other hand, the plaintiff who was himself a solicitor realized the difficulties of the situation and endeavoured to alter the foundation of his claim. He conceded that as a broker he had no authority to sell the property and that he (1) 19 Eq. 108. (8) 67 L.T. 257, (2) 3 T.L.R. 624 (4) (1900) 2 Ch. 267.

54 could not have taken a conveyance of sale of the plot. In the present case the attitude adopted by the parties, as already pointed out, was entirely different. Sir Asutosh Mookerjee also cited the case of Rosenbaum v. Belson (1).

In this case the learned Judge made the following observa- tions:- ” To my mind there is a substantial difference between those expressions. Authorizing a man to sell means an authority to conclude a sale; authorizing him to find a purchaser means less than that–it means to find a man willing to become a purchaser, not to find him and also make him a purchaser.” In Saunders v. Dence (2), Field J. distinguished Hamer v. Sharp(s), saying that ‘all that Hall, V.C.,in that case decided, as I understand it, was that if you go to an estate agent, and tell him you have a property to sell, and that you want a purchaser, and you tell him what you have made up your mind shall be the price, and to a certain extent what shall be the conditions, and you instruct him to try and find a purchaser, that is not sufficient, under those cir- cumstances, to authorize the agent to make a contract with- out any conditions whatever with regard to the title’.

I have been unable to find any case in which it has been held that instructions given by A.B. to sell for him his house, and an agreement to pay so much on the purchase price accepted, are not an authority. to make a binding contract, including an authority to sign an agreement.

In my opinion, on the terms of the instrument in this case and in view of the relevant evidence the correct con- clusion to draw is that the agent had authority to enter into a binding contract with the purchaser and that he did and is therefore entitled to succeed in the case. Reference in this connection may be made to Wragg v. Lovett (4), where Lord Greene, M.R., put the proposition in these words :– “Whether or not the agents were authorized (or, what in law is the same thing, reasonably understood (1) (1900) 2 Ch. 267. (3) 19 Eq. 108.

(2) 52 L.T. 644. (4) [1948] 2 A.E.R. 969.

55 themselves to be authorized) to make this particular con- tract”, and it was held that the proper inference from all the facts of the case was that the defendant was satisfied to allow his agents to make whatever contract they thought best and relied on them to protect his interests provided, and provided only, that they obtained the desired statement from the plaintiff as to his intention to remain in the house. The answer to the question depends on the facts of each individual case and though authority to make a binding contract has not to be lightly inferred from vague or ambig- uous language but from substantial grounds, that however does not mean that in express words it should be stated that the agent is authorized to sell the property.

The learned Chief Justice in the judgment under appeal observed that “the agent had undertaken to negotiate a sale and secure a buyer. He could not be said to have either secured a buyer or negotiated a sale unless a sale actually took place or at least a contract of sale had been entered into”. If that is the correct construction of the note, then in my judgment, the true implication of the note is that the agent was authorized to enter into a binding con- tract, because otherwise he could not have secured a buyer.

Later on, the learned Chief Justice while referring to the case of Rosenbaum v. Belson(1), took the view that authoriz- ing a man to sell meant an authority to conclude a sale and authorizing a man to find a purchaser meant less than that. It meant finding a man willing to become a purchaser, not to find him and also make him a purchaser. If that was the duty entrusted to the agent, then he had clearly per- formed his duty and was entitled to his commission.

For the reasons given above I am of the opinion that the plaintiff had authority to enter into a binding contract on behalf of the defendant and he entered into such a contract and thereby earned the commission which he has claimed in the suit and he is entitled to a (1) [1900] 2 Ch. 267.

8 56 decree in the sum of Rs. 6,000 which the trial Judge had given to him, with all costs throughout.

Conceding for the sake of argument that the construction that I have placed on the agreement entered into between the principal and the agent is not the correct one, the question arises .whether in that event the decision under appeal can be maintained. I am inclined to the opinion that even on the construction placed by the trial Judge on the commission note the view taken by him was the correct one and the court of appeal arrived at a wrong conclusion by giving too much importance to certain obiter observations of Lord Russell of Killowen and Lord Romer in Luxor (Eastbourne) Ltd. v. Coop- er(1). In this very case it was pointed out by Viscount Simon L.C. that there were at least three different classes of cases in which the question of a right to commission could arise. He states the first of them in these terms :– “There is the class in which the agent is promised a commission by his principal if he succeeds in introducing to his principal a person who makes an adequate offer, usually an offer of not less than the stipulated amount. If that is all that is needed in order to earn his reward, it is obvi- ous that he is entitled to be paid when this has been done, whether this principal accepts the offer and carries through the bargain or not. No implied term is needed to secure this result.” In my opinion, the present case falls within this class of case and commission became payable on the introduction of a willing buyer by the agent to the principal.

In Burcheil v. Cowrie & Blockhouse Collieries Ltd.(2) it was observed by their Lordships of the Privy Council that if an agent brings a person into relation with his principal as an intending purchaser, the agent has done the most effec- tive, and, possibly, the most laborious and expensive, part of his work, and that if the principal takes advantage of that work, and, behind the back of the agent and unknown to him, sells to the purchaser thus brought into touch with him on terms (1) [1941] A.C. 108. (2) [1910] A.C. 614.

57 which the agent theretofore advised the principal not to accept, the agent’s act may still well be the effective cause of the sale and that there can be no real difference between such a case and those cases where the principal sells to the purchaser introduced by the agent at a price below the limit given to the agent.

In Inchbald v. Western Neilgherry Coffee etc. Co. (1) Willes J. thus lays down the rule of law applicable to such cases :– “I apprehend that wherever money is to be paid by one man to another upon a given event, the party upon whom is cast the obligation to pay, is liable to the party who is to receive the money if he does any act which prevents or makes it less probable that he should receive it.” The rule has been stated by Story on Agency at page 404 in the following terms :– “The general rule of law, as to commissions, undoubtedly is, that the whole service or duty must be performed, before the right to any commissions attaches, either ordinary or extraordinary; for an agent must complete the thing required of him, before he is entitled to charge for it. In the case of brokers employed to sell real estate, it is well settled that they are entitled to their commission when they have found a purchaser, even though the negotiations are conduct- ed and concluded by the principal himself; and also where there is a failure to complete the sale in consequence of a defect in title and no fault on the part of the brokers.” In my judgment therefore, Gentle J. was right when he held on the interpretation placed by him on the document that the plaintiff had earned his commission in full inas- much as he had secured a buyer who was ready, able and willing to buy the property for Rs. 1,10,000.

As I have indicated above, if the word “buyer” is to be construed in a strict sense, then it must be held that the broker had authority to secure a buyer of that type and he could only do so by making a binding (1) [1864] EngR 726; 17 C.B. (N.S.) 733.

58 contract with him. On the other hand, if the word is taken to mean a potential buyer, such a buyer having been secured, the agent was entitled to the commission that had been promised to him.

It is now convenient to consider the case of Luxor (Eastbourne) Ltd. v. Cooper(1) in some detail because cer- tain observations made by Lord Russell of Killowen and Lord Romer are the basis of the decision of the learned Chief Justice. In this case no commission note was addressed to the broker and the contract was not contained in any docu- ment. Evidence in support of the commission agreement was oral and its terms had to be deduced from that evidence.

Viscount Simon L.C., out of the materials from which express contract had to be pieced together, reached the result that the bargain was this:

“If a party introduced by the respondent should buy the cinemas for at least pound 1,85,000, each of the two appel- lants would pay to the respondent pound 5,000 on the comple- tion of the sale.” No such sale took place, and in those circumstances it was held that there could be nothing due to the respondent on the terms of the express bargain. It was then argued that since the proposed purchasers introduced by the re- spondent were and remained willing and able to buy the properties for the minimum price, while the appellants did not close with the offer, the appellants were liable in.

damages to the respondent for breach of an implied term of the commission contract. In the statement of claim the implied term was said to be that the appellants would” do nothing to prevent the satisfactory completion of the trans- action so as to deprive the respondent of the agreed commis- sion.” The breach pleaded was the failure to complete the contract of sale with the respondent’s client and the dis- posal of the subject-matter in another quarter. The Lord Chancellor was of the opinion that the suggested implied term was not necessary in this contract and it was observed that in contracts made with commission agents there was no justification for introducing an implied term unless it was necessary to (1) [1941] A.C. 108.

59 do so for the purpose of giving to the contract the business effect which both parties to it intended it should have.

Lord Russell of Killowen in his opinion said that the only right of the plaintiff was to receive his commission out of the purchase moneys if and when received. His right was a purely contingent right. He stood .to earn a very large sum at comparatively small pains, taking the risk of either side withdrawing from the negotiations before any binding contract of sale and purchase was concluded, or of the contract for any reason not being carried to completion.

In this view of the case the action was bound to fail and no occasion arose for pronouncing on the correctness or other- wise of the view expressed by the Court of Appeal in Trol- lope & Sons v. Martyn Brothers (1). Then it was said that as the question of these commission contracts was discussed at great length, that furnished an excuse for stating brief- ly conclusions which his Lordship’s mind, free as it was from the fetter of previous decisions, reached. In dealing with the subject the following observations were made :– “I can find no safe ground on which to base the intro- duction of any such implied term. Implied terms, as we all know, can only be justified under the compulsion of some necessity. No such compulsion or necessity exists in the case under consideration. The agent is promised a commission if he introduces a purchaser at a specified or minimum price. The owner is desirous of selling. The chances are largely in favour of the deal going through, if a purchaser is introduced. The agent takes the risk in the hope of a substantial remuneration for comparatively small exertion.

In the case of the plaintiff his contract was made on Sep- tember 23, 1935; his client’s offer was made on October 2, 1935. A sum of I0,000 (the equivalent of the remuneration of a year’s work by a Lord Chancellor) for work done within a period of eight or nine days is no mean reward, and is one well worth a risk. There is no lack of business efficacy..in sUCh a contract, I even (1) [1934] 2 K.B. 436.

60 though the principal is free to refuse to sell to the agent’s client.

The position will no doubt be different if the matter has proceeded to the stage of a binding contract having been made between the principal and the agent’s client. In that case it can be said with truth that a ‘purchaser’ has been introduced by the agent; in other words, the event has happened upon the occurrence of which a right to the prom- ised commission has become vested in the agent. From that moment no act or omission by the principal can deprive the agent of that vested right.” It is the observations last quoted which are the basis of the decision of the learned Chief Justice in the present case. It seems to me that these observations had reference to cases visualized by Lord Russell of Killowen in the earlier part of this quotation with specific reference to the facts found in that case and cannot apply to all cases where the word ‘ purchaser ‘ or ‘buyer’ has been loosely used in a different context.

Lord Romer in his opinion made the following observa- tions :- “But supposing that a contract by one person to pay another a sum of money in the event of the latter performing an unsolicited service to the former is as much subject to an implied condition as if the latter had been employed to perform the service, the condition is in general one that merely imposes on the former a negative and not a positive obligation. If I employ a man for reward to build a house on my land I subject myself to an implied condition that I will do nothing to prevent him carrying out the work. But I am under no implied obligation to help him earn the reward whether by the supply of building materials or otherwise.

But there are exceptional cases where in a contract of employment the employer is under a positive obligation. If, for instance, I employ an artist to paint my portrait I subject myself to the positive obligation of giving him the requisite sittings. The question, then, to be determined upon the hypothesis that I mentioned just now is this: Where an owner of 61 property employs an agent to find a purchaser, which must mean at least a person who enters into a binding contract to purchase, is it an implied term of the contract of agency that, after the agent has introduced a person who is ready, willing and able to purchase at a price assented to by the principal, the principal shall enter into a contract with that person to sell at the agreed price subject only to the qualification that he may refuse to do so if he has just cause or reasonable excuse for his refusal ? This qualifica- tion must plainly be added, for the respondent does not contend, and no one could successfully contend, that the obligation of the principal to enter into a contract is an unconditional one.” The learned Chief Justice relying on the last part of the above quotation reached the conclusion that in the present case as the duty of the agent was to secure a pur- chaser, it could not be held that the purchaser had been secured till the contract of sale was concluded by the vendor with him and that the actual sale having been con- cluded for a sum of Rs. 1,05,000, the plaintiff could only get his remuneration on the basis of the price for which the sale was made and not on the basis of the offer the plain- tiff had secured. It seems to me that when Lord Romer was laying down that a purchaser in such contracts means at least a person who enters into a binding contract to pur- chase, he had in mind the contract with which he was dealing in that case. I am free to think that Lord Romer had not in mind commission notes wherein the word “buyer” or “purchas- er” had been employed in a loose sense.

In Jones v. Lowe(1), wherein the instrument was in these terms– “In the event of my introducing a purchaser, I shall look to you for the payment of the usual commission in accordance with the scale fixed by the Auctioneers and Estate Agents Institute “, Hilbery J. said that had he been free of authority, he should have thought that there were strong grounds for saying that what every owner of a house who desired to (1) [1945] 1 K.B. 73.

62 sell it expected a house agent to do, was to bring the property fairly to the notice of persons who resorted to him for houses and endeavour to persuade one of them to buy it.

The learned Judge further observed as follows :– “If the agent introduces someone who is perfectly will- ing to go through with the purchase at a price which will satisfy the vendor, it would seem that the agent has done everything that the parties contemplate that he should do, for they do not contemplate that the agent should have anything to do with the actual completion of the transac- tion. He is to find a person who will pay the price which is asked for the property, and the contract is entered into on the basis that the person so found will be the person to whom the owner of the property will sell.

It seems to me hard, if an agent has done to the full extent what the parties contemplated that he should do, that he should not be entitled to say ‘ I have done what I con- tracted to do because I have introduced someone willing to purchase although he never in fact became the. actual pur- chaser’. I do not feel, however, that it is open to me to put that construction on the words of the contract in the present case because I think that the observations made in the House of Lords, and particularly those of Lord Russell of Killowen and Lord Romer in Luxor (Eastbourne) Ltd. v.

Cooper (1), show that they were clearly of opinion that if an agent is employed to introduce a purchaser for a house and before the purchaser has entered into a binding and legal contract, the house is withdrawn from the market, the agent cannot say that he has earned his commission.” In a later case, E.H. Bennett v. Millet (2), the same learned Judge had to deal with a case where the contract was in these terms :– “We confirm that in the event of our introducing a purchaser who is able and willing to complete the transac- tion, our commission will be in accordance with the recog- nized scale…”.

The plaintiffs introduced a prospective purchaser, Whom the court found to have been at all times able (1) [1941] A.C. 108. (2) (1948) 2 All. E.R. 929.

63 and willing to purchase, but the defendant refused to com- plete. It was argued by the defendant that the qualifica- tion of the word “purchaser” in the plaintiffs’ letter was otiose and therefore should be struck out and the plaintiffs had not performed the contract until they had introduced a person who actually. completed the purchase. It was held that the expression “a purchaser who is able and willing to complete the transaction” meant not a person who did, in fact, ultimately purchase the property, but one who was prepared to purchase it at the seller’s price, and, as the estate agents had found such a person, they were entitled to their commission. The learned Judge further stated that in ordinary parlance we do not use the word “purchaser” as necessarily restricted to a person who actually completes a transaction of purchase and sale. In my judgment, there- fore, on the alternative interpretation which has been placed by the two courts below on the commission note the word “purchaser” cannot be read in the strict sense in which it was read in Luxor’s case (1), but should be read in the sense in which it is loosely used in common parlance, and that being so, the decision under appeal cannot be sus- tained.

Mr. Setalvad cited a number of Indian authorities where the words “buyer” and “purchaser” had not been given the strict meaning that had been given in Luxor’s case (1).

Similarly, the words “lender” and “borrower” had been given the meaning of “potential lender” and “potential borrower”.

It is, however, unnecessary to enter into a discussion of all those cases as it does not in any way advance the matter beyond what I have already said. It is unnecessary to go into the third contention of Mr. Setalvad in view of the above decision.

For the reasons given above I agree with the conclusion reached by my brother, Patanjali Sastri, in the judgment just delivered by him, that the appeal be allowed with costs throughout.

Appeal allowed.

Agent for the appellant: S.P. Varma.

Agent for the respondent: Sukumar Ghose.

(1) [1941] A.C. 108.

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ASSAM PUBLIC WORKS ….PETITIONER(S)
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( AND IA NO.22616/2018-IMPLEADING PARTY)
WITH
W.P.(C) NO. 562/2012 (X)
(I.A. 114708/2017 APPLICATION FOR EARLY HEARING IN W.P. (C) 562/2012 MAY BE LISTED)

W.P.(C) NO. 916/2014 (PIL-W)
(FOR [PERMISSION TO FILE ANNEXURES] ON IA 2/2015 FOR EXEMPTION FROM FILING O.T. ON IA 3/2015 AND IA NO.119677/2017-IMPLEADING PARTY)

W.P.(C) NO. 876/2014 (X)

W.P.(C) NO. 311/2015 (X)
(FOR ON IA 2/2015)

W.P.(C) NO. 449/2015 (X)
(FOR ON IA 1/2015)

W.P.(C) NO. 450/2015 (X)
(FOR ON IA 1/2015)

W.P.(C) NO. 68/2016 (PIL-W)

Date : 27-03-2018 These cases were called on for hearing today.

CORAM :
HON’BLE MR. JUSTICE RANJAN GOGOI
HON’BLE MR. JUSTICE ROHINTON FALI NARIMAN

For parties:
Mr. K.K. Venugopal, AG
Mr. Tushar Mehta, ASG
Ms. Rekha Pandey, Adv.
Ms. Rashmi Malhotra, Adv.
Ms. Binu Tamta, Adv.
Mr. Rohit Bhatt, Adv.
Mr. B.V. Balaram Das, AOR
Mr. R.M. Bajaj, Adv.
Mr. Rajat Nair, Adv.
Mrs. Anit Katiyar, Adv.

Assam State Election Commission
Mr. Avijit Roy, AOR
Mr. Niran Borah, Adv.
Mr. Kailash Prashad Pandey, AOR
Mr. Manish Goswami, Adv.
Mr. Rameshwar Prasad Goyal, AOR.
Mr. Santi Ranjan Das, Adv.
Mr. Anindo Mukherjee, Adv.
Mrs. Sarla Chandra, AOR
Mr. Somiran Sharma, AOR
Mr. Gaurav Dhingra, AOR
Mr. Ejaz Maqbool, AOR
Ms. Akriti Chaubey, Adv.
Ms. Tanya Shree, Adv.
Mr. Kunwar Aditya Singh, Adv.
Mr. B. Krishna Prasad, AOR
Mr. Snehasish Mukherjee, AOR
Mr. Asit Kumar Roy, Adv.
Ms. Shampa Nath, Adv.

State of Assam
Mr. Tushar Mehta, ASG
Mr. Shuvodeep Roy, AOR
Mr. Sayooj Mohandas M., Adv.
Mr. J.B. Ekka, Secy. Panchayat & Rural Dev., Assam
Mr. Shibashish Misra, AOR
Mr. Mansoor Ali, Adv.
Mr./Ms. Shaista J., Adv.

SJF
Mr. Mehmood Pracha, Adv.
Mr. R.H.A. Sikander, Adv.
Mr. Prateek Gupta, Adv.
Mr. Mohd. Danish, Adv.
Mr. Shadan Farasat, AOR
Mr. Dilawar Abbas Naqvi, Adv.
Mr. Mohit D. Ram, AOR
Mr. Vinay Pratap Pandey, Adv.
Mr. Hitesh Kumar Sharma, Adv.
Mr. Devinder Mishra, Adv.
Mr. Mohan Pandey, AOR
Mr. Syed Ali Ahmad, Adv.
Mr. Syed Tanweer Ahmad, Adv.
Mr. S.S. Bandyopadhyay, Adv.
Mr. Mohan Pandey, Adv.
Ms. Madhumita Bhattacharjee, AOR
Mr. Guntur Prabhakar, AOR
Mr. Fuzail Ahmad Ayyubi, AOR
Mr. Abdul Qadir, Adv.
Mr. Jawad Tariq, Adv.
Mr. Abhijit Sengupta, AOR

Gauhati HC
Ms. Sneha Kalita, AOR

APCC
Mr. Navnit Kumar, Adv.
M/S. Corporate Law Group, AOR

AASU
Mr. Prateek Jalan, Adv.
Ms. Malvika Trivedi, Adv.
Mr. Rahul Kriplani, Adv.
Mr. Ankit Yadav, Adv.
Mr. T. Mahipal, AOR
Ms. Sushma Suri, AOR
Mr. V. K. Sidharthan, AOR

State of Tripura
Mr. Gopal Singh, AOR
Mr. Rituraj Biswas, Adv.
Mr. Chanchal Kumar Ganguli, AOR
Mr. Ashok Kumar Singh, AOR

State of Mizoram
Mr. Shikhar Garg, Adv.
Mr. Ganesh B., Adv.
Mr. P. V. Yogeswaran, AOR.
Mr. Anuvrat Sharma, AOR

State of Uttarakhand
Mrs. D. Bharathi Reddy, AOR
Ms. Rachna Gandhi, Adv.

UT of A & N Admn.
Mr. Bhupesh Narula, Adv.
Mr. K.V. Jagdishvaran, Adv.
Ms. G. Indira, AOR

State of Chattisgarh
Mr. Aniruddha P. Mayee, AOR
Mr. Avnish M. Oza, Adv.
Mr. Chirag Jain, Adv.

State of Jharkhand
Mr. Tapesh Kumar Singh, AOR
Mr. Mohd. Waquas, Adv.
Mr. Aditya Pratap Singh, Adv.

State of Goa
Mr. A.N.S. Nadkarni, ASG
Mr. Santosh S. Rebello, Adv.
Mr. Anuj Sarma, Adv.
Ms. Niharika, Adv.
Ms. Kanika Kalaiyarasan, Adv.
Mr. Pratap Venugopal, Adv.
for M/S. K J John And Co, AOR.

State of Sikkim
Ms. Aruna Mathur, Adv.
Mr. Avneesh Arputham, Adv
Ms. Anuradha Arputham, Adv.
Ms. Simran Jeet, Adv.
for M/S. Arputham Aruna And Co, AOR.

State of Rajasthan
Mr. Sarad Kumar Singhania, Adv.
Mr. Milind Kumar, AOR
Mr. V. N. Raghupathy, AOR

State of Gujarat
Ms. Hemantika Wahi, AOR
Ms. Jesal Wahi, Adv.
Ms. Mamta Singh, Adv.
Ms. Shodhika Sharma, Adv.
Ms. Abha R. Sharma, AOR
Mr. D.S. Parmar, Adv.
Mr./Ms. Sujeeta Srivastava, Adv.
Mr. Atmaram N.S. Nadkarni, ASG
Mr. Merusagar Samantaray, AOR
Mr. S. Santosh Rebello, Adv.
Ms. Lhingneivah, Adv.
Ms. Sneha P. Tendulkar, Adv.
Ms. Nivedita Nair, Adv.
Ms. Liz Mathew, AOR

State of Kerala
Mr. C. K. Sasi, AOR

State of Meghalaya
Mr. Daniel Stone Leingdoh, Adv.
Mr. Ranjan Mukherjee, AOR.

State of Nagaland
Mr. Edward Belho, Adv.
Ms. K. Enatoli Sema, AOR
Mr. Amit Kumar Singh, Adv.
Mr. K. Luikang Michael, Adv.

State of Punjab
Ms. Ranjeeta Rohatgi, AOR
Mr. Kuldip Singh, AOR

State of Rajasthan
Mr. S.S. Shamshery, AAG, Rajasthan
Mr. Amit Sharma, Adv.
Mr. Sandeep Singh, Adv.
Mr. Ankit Raj, Adv.
Ms. Indira Bhakar, Adv.
Ms. Ruchi Kohli, AOR
Mr. Milind Kumar, Adv.
Mr. B. Balaji, AOR

State of UP
Mr. V.V.V. Pattabhi Ram, Adv.
Mr. Upendra Mishra, Adv.
Mr. Abhishek, AOR
Ms. Rachana Srivastava, AOR
Ms. Monika, Adv.
Mr./Ms. Sudipta, Adv.
Mr. Aviral Saxena, Adv.
Ms. Rachana Srivastava, Adv.
Mr. Parijat Sinha, AOR
Mr. Partha Sil, AOR
Ms. Diksha Rai, AOR

State of Assam
Mr. Debojit Borkakati, AOR
Mr. M. Balashivudu, Adv.

For M/S. Equity Lex Associates, AOR

Mr. B.H. Marlapalle, Sr.Adv.
Mr. Ajit Wagh, Adv.
Mr. Apoorv Shukla, Adv.
Mr. Aditya Gaggar, Adv.
Mr. Shakil Ahmed Syed, AOR
Mr. B.H. Marlapalle, Sr.Adv.
Mr. Ajit Wagh, Adv.
Mr. Aditya Gaggar, Adv.
Mr. Apoorv Shukla, Adv.
Mr. Ejaz Maqbool, AOR

IMPL
Mr. Mansoor Ali, Adv.
Mr. A.K. Talukdar, Adv.
Ms. Lubna Ishrat Siddiqui, Adv.
Mr. Chandan Kr. Mandal, Adv.

State of H.P.
Mr. Ajay Marwah, AOR

State of Telangana
Mr. S. Udaya Kumar Sagar, Adv.
Mr. Mrityunjai singh, Adv.

State of J & K
Mr. M. Shoeb Alam, AOR
Ms. Fauzia Shakil, Adv.
Mr. Ujjwal Singh, Adv.
Mr. Mojahid Karim Khan, Adv.

State of T.N.
Mr. M. Yogesh Kanna, AOR
Mrs. Sujatha Bagadhi, Adv.

UPON hearing the counsel the Court made the following

O R D E R

I.A. NO.121402 OF 2017 IN WRIT PETITION (CIVIL) NO.274 OF 2009

We have heard Shri K.K. Venugopal, learned Attorney General for India in support of the application for extension of time for publication of the draft National Register of Citizens (NRC) for Assam.

We have also considered the statements made in support of the aforesaid prayer.

At the very outset, we would like to mention that to a pointed query made by a Member of the Bench (Hon’ble Mr. Justice Rohinton Fali Nariman) as to whether, if extension prayed for is to be granted, there could be a request for further extension in the future the learned Attorney General has submitted that such a possibility cannot be ruled out and, if required, further time will be sought.

The exercise of preparation of the upgradation of the draft NRC has been presently going on for the last three years. Time schedule was first laid by this Court by its order dated 17.12.2014. The final time frame laid down by order of this Court dated 13.07.2017 contemplates publication of the draft NRC latest by 31st December, 2017.

To another query made by the Bench, Shri Prateek Hajela, learned State Coordinator, NRC, Assam has submitted that by 31st December, 2017 scrutiny of about 2 crore cases/claims are likely to be completed. In the application for extension filed by the Registrar General of Citizen Registration, India, the remaining claims to be verified have been placed in three categories which are as follows:

a) 38 lakh persons where the doubts have arisen in respect of some documents and particulars,
b) 47 lakh persons where doubts have arisen in respect of their parental linkage after undertaking matching of family tree of an applicant, and
c) 29 lakh persons cases kept in abeyance belonging to the category of married women who have submitted Gram Panchayat Secretary Certificate.

On being asked, Shri Hajela has submitted that so far as the claims of 38 lakh persons in respect of whom doubts have arisen qua documents and particulars, instructions have already been issued to complete the process by 15th January, 2018. This time frame has also been indicated in the affidavit of the Registrar General of Citizen Registration, India. We accordingly direct Shri Hajela to complete the said process relating to the above 38 lakh claims on or before 31st December, 2017 by deployment of additional man-power and resources. Thereafter, on the expiry of the midnight of 31st December, 2017, draft NRC pertaining to the 2 crore claims which have been verified or likely to be verified by the said date and the additional 38 lakh claims, mentioned above, will be published. The prayer for extension, accordingly, stands rejected.

The matter will be listed on 20th February, 2018 for further orders.

After the aforesaid order had been dictated, Shri K.K. Venugopal, learned Attorney General for India has submitted that fixing a date for publication of the draft NRC is really an executive function and an order to the aforesaid effect by the Court would be an encroachment on the executive domain and violation of doctrine of separation of powers.

The aforesaid contention advanced before the Court for the first time overlooks the fact that over a period of three years the Court has been monitoring the matter and fixing appropriate time-lines for the completion of different phases of the exercise of updating the NRC. Even on the last date i.e. 13th July, 2017, when 31st December, 2017 was fixed for publication of the draft NRC the contentions now advanced were not made before the Court. That apart, it is the sheer inaction on the part of the executive in dragging the matter for a period of over three years and the absence of any justifiable cause to hold back even a partial publication that has led the Court to direct publication of the draft NRC on or before 31st December, 2017.

Learned Attorney General has further submitted that part publication of the draft NRC could result in a law and order situation inasmuch as a large segment of the people would understand that their names have been excluded from the draft NRC. We do not see how the aforesaid situation can even remotely arise as we have already indicated in the earlier part of the present order that claims of 47 lakh persons and 29 lakh persons are still pending and would be subject to verification and covered by publication of another draft NRC at a subsequent point of time.

In view of the above, the additional contentions advanced by the learned Attorney General do not commend for acceptance.

Re: Border Fencing

A copy of the report submitted by the Court Constituted Committee be furnished to Shri Tushar Mehta, learned Additional Solicitor General who will interact with the concerned authority in the Central Government and revert to this Court on the next date fixed i.e. 20th February, 2018 along with the report of the concerned authority indicating the action taken and proposed to be taken and also indicating a time schedule for the remaining action required to be taken. List the matters on 20th February, 2018.

[VINOD LAKHINA]
AR-cum-PS

[ASHA SONI]
BRANCH OFFICER

The post Assam Public Works Vs Union Of India & Ors. appeared first on B&B Associates LLP.

DATE : 14/03/1950

BENCH : DAS, SUDHI RANJAN DAS, SUDHI RANJAN KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K.

ACT:

Bombay Cotton Contracts Act (IV of 1932), s. 8 (1)–East India Cotton Association Bye-laws, Nos. 51-A, 65-A, 80, 82–Cotton Contract–Contract note stating minimum amount Of deposit as Rs. 25 and not in prescribed form–Validity–Arbitration and award under arbitration clause, whither void.

APPEAL from the High Court of Judicature at Bombay.

Civil Appeal No. XXVI of 1949.

This was an appeal from a judgment and decree of the Bombay High Court (Stone C.J. and Coyajee J.) dated 20th March, 1947, in Appeal No. 42 of 1946, reversing a judgment of Chagla J. dismissing an application. made by the respond- ent under the Indian Arbitration Act, 1940, praying inter alia that the arbitration agreement contained in certain contract notes sent by the appellants to the respondent be declared invalid and void and for setting aside an award made by arbitrators appointed under the said contract note.

M.C. Setalvad, (Rameshwar Nath with him), for the appel- lants.

C.K. Daphtary, (B. Sen and K.T. Desai with him), for the respondent.

1950. March 14. The judgment of the Court was delivered by DAS J.–This appeal arises out of an application made by the Respondent under the Indian Arbitration Act, 1940, praying inter alia that the arbitration agreement contained in certain contract notes including contract note No. 17996 sent by the Appellants to the Respondent be declared to be invalid, void and unenforceable and be set aside and that a purported award made by the arbitrators appointed in terms of the said contract notes be set aside. That application came to be made in the following circumstances:

The Appellants were and are members of the East India Cotton Association Ltd. The Respondent, however, was not and is not a member of that Association. In April, 1945, the Respondent employed the Appellants as his agents to effect forward contracts for the sale and/or purchase of cotton according to the rules, regulations and bye-laws of that Association. Between the 9th April, 1945, and the 10th August, 1945, the ‘Appellants as such agents put through various contracts for sale and/or purchase of cotton for July, 1945, and September, 1945, deliveries and sent to the Respondent 66 contract notes in respect of each of such contracts. All the said contract notes were in printed forms, a specimen copy whereof is set out at pages 12 to 15 of the Paper Book. On the 10th August, 1945, the purchase of 900 bales of cotton at Rs. 432 per candy for September 1945 delivery remained outstanding. According to the Respondent, on the 11th August, 1945, the Respondent instructed the Appellants to close the said outstanding purchase by selling 900 bales for September 1945 delivery at a rate not less than Rs. 426 per candy, which is said to be the prevailing market rate on that date. As the Respondent did not receive any contract note from the Appellants in respect of the closing transac- tion of 900 bales, the Respondent on the 18th August, 1945, put on record his aforesaid instructions and asked the Appellants to send the contract note. The Appellants, however, deny that any instruction was given by the Respond- ent on the 11th August, 1945, for closing the outstanding contract. They deny the receipt of the Respondent’s letter of that date. According to the Appellants the 21st August, 1945, was a clearing date and on that clearing a sum of Rs.

18,900 became due and payable by the Respondent to the Appellants and that instead of paying up his dues the Re- spondent concocted the false story of having given instruc- tions to the Appellants to close the outstanding purchase.

The Appellants by their letter of the 22nd August, 1945, repudiated the allegations in the Respondent’s last men- tioned letter and called upon the Respondent to pay up Rs.

18,900 and gave notice to him that if he failed to pay up the amount by noon of the 23rd August, 1945, the Appellants would be compelled to square up the outstanding contract at their discretion on account and at the risk of the Respond- ent. The Respondent on the 24th August, 1945, denied having fabricated any false story and repudiated liability for Rs.

18,900 and returned the Appellants’ bill. On the 27th August, 1945, the Appellants closed the outstanding contract for purchase of 900 bales by selling the same at Rs. 356 per candy for September 1945 delivery and along with their letter dated the 27th August, 1945, sent contract ‘note No.

17996. The 67 Respondent by his letter dated the 28th August, 1945, reit- erated the story of previous instruction for closing the contract, denied having given any instruction to the Appel- lants to close the contract on the 27th August, 1945, and returned the contract note No. 17996. On the 28th August, 1945, the Appellants wrote to the Respondent claiming Rs.

34,313 and expressing the desire to refer the disputes to arbitration in terms of the arbitration agreement contained in the contract notes. Both parties appointed their respec- tive arbitrators. The arbitrators entered upon the refer- ence and eventually fixed the 24th October, 1945, for a meeting of the arbitrators. The Respondent alleges that he received the notice of meeting only on 22nd October, 1945, and could not attend the meeting on the 24th October, 1945, as he had to appear before the Income Tax Officer on the same day. Accordingly, the Respondent sent his agent to attend the arbitration meeting and to obtain an adjournment.

The arbitrators, however, rejected the application for adjournment and made an ex parte award on the same day for Rs. 34,313 and interest and costs. Being aggrieved by the award the Respondent on the 10th November, 1945, filed an appeal to the Board of the Association. The Respondent’s allegation is that pending the said appeal he discovered that the contract notes rendered by the Appellants from time to time including the contract note No. 17996 were not in accordance with the prescribed official form of contract notes of the Association and he was advised that in the premises the contracts were void under the provisions of the Bombay Cotton Contracts Act (IV of 1932) and that, that being so, there was no arbitration agreement between the parties under which there could be any reference to arbitra- tion on which any award could be made. The Respondent thereupon amended his memorandum of appeal to the Board pointing out the invalidity of the contracts and at the same time made a substantive application to the High Court under the Indian Arbitration Act for the reliefs already summa- rised above.

In order to appreciate the rival contentions of the parties it is necessary to refer to the relevant 68 provisions of the Bombay Cotton Contracts Act, 1932, and the bye-laws of the said Association.

Section (8) (i) of the Bombay Cotton Contracts Act, 1932, runs as follows :- “Save as hereinafter provided in this Act any contract (whether either party thereto is a member of a recognised cotton association or not) which is entered into after the date on which this Act comes into operation and which is not in accordance with the byelaws of any recognised cotton association shall be void.” There is no dispute that the East India Cotton Associa- tion is one of the recognised cotton associations for the purposes of the said Act. Bye-laws 80 and 82 of Chat Asso- ciation are in the terms following :– “80. Delivery Contracts between members shall be made on the Official form given in the Appendix. Hedge Contracts between members may be verbal or in writing and when in writing shall be in one or other of the forms given in the Appendix. Whether verbal or written all contracts shall be subject to the bye-laws, provided that in the case of Deliv- ery Contracts Byelaws 149 to 163 inclusive shall not apply.

82. Contracts between members acting as commission agents’ on the one hand and their constituents on the other shall, be made subject to the bye-laws and a contract note in the form given in the Appendix (pages 92, 93, 94 and 95) shall be rendered in respect of every such contract. Bye- laws 130 to 166 (inclusive) shall’ not apply to these Con- tracts.” Bye-law 51-A originally required a deposit at a rate not less than Rs. 25 per bale and accordingly the contract note submitted by. the agent to the constituent used to contain the following clause at the end of the clause relating to payment of margin :- “In addition to the above, the deposit (not carrying interest) payable under bye-law 51-A;namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to me/us in Bombay.” During the war bye-law 51-A was amended by reducing the minimum amount of deposit from Rs. 25 per 69 bale to Rs. 12-8-0 per bale and accordingly the Government of Bombay by a Notification made on the 19th September, 1945, in exercise of the powers conferred by the Bombay Options in Cotton Prohibition Act, 1939 (Act XXV of 1939) provided that the contract note should also be amended so that the clause last quoted above should read as follows :– “In addition to the above, the deposit (not carrying interest) payable under bye-law 51-A, namely, at a rate not less than Rs. 12-1/2 per bale shall, when demanded, be made by you to me/us in. Bombay.” In order to enforce war-time controls another amendment of the bye-laws was made whereby a new bye-law was added as bye-law 65-A. In view of this last mentioned amendment and in order to bring the contract note between the agent and the constituent into line with this new bye-law the Government of Bombay by the same Notification dated the 19th September 1944 directed the inclusion of the two following clauses in the contract note, namely:

“If this contract is a contract for sale, then if be- tween us and other members of the East India Cotton Associa- tion we become, under the bye-laws, the first seller of the cotton so sold and if the last buyer exercises the right given by bye-law 65-A, you will then be bound by the provi- sions of that bye-law as between you and us.

If this contract is a contract of purchase, and if between us and other members of the East India Cotton Asso- ciation Ltd., we become the last buyers unless we shall have received express instructions from you in writing to. the contrary, before the commencement of the delivery period if the contract is entered into before the commencement of the delivery period, or with the order if the contract is en- tered into during the permitted days of trading in the delivery period, we shall be at liberty at our option and without any further reference to you to exercise the right given to the last buyer under bye law 65-A, and if we so exercise the right you will be bound by the provisions of that bye-law as between you and us.” 70 After all these amendments the contract note to be rendered by an agent to the constituent had to be in the form, a specimen copy whereof is set out at pages 17 and 18 of the Paper Book. The contracts between the Appellants and the Respondent were made after the aforesaid contract note form came into vogue. The official Contract Note form to be used after the aforesaid amendments opens with the following clause :– “I/we have this day sold/bought for you in Bombay sub- ject to the following conditions and to the Bye-laws of the East India Cotton Association Ltd., in force from time to time and subject also to my/our usual charges and terms of business as Commission Agents.” Then are inserted particulars of the description, quantity, price etc., of the cotton which is the subjectmat- ter of the contract. Then follows the clause for payment of margin, the last sentence of which provides for payment of deposit payable under bye law 51-A as amended, namely, at a rate not less than Rs. 121/2 per bale. At the end of the form are to be found the two new clauses required to be incorporated in every Contract Note by the Government Noti- fication already referred to.

The Contract Notes actually rendered by the Appellants to the Respondent, however,. were in forms, a specimen copy whereof is set out at pages 12–15 of the Paper Book. A comparison of the two forms of the contract notes will reveal the following differences :- (1) In the contract note rendered by the Appellants to the Respondent the last sentence providing for deposit at the end of the margin clause is missing. There is, however, a rubber stamp impression on the top of the back of the contract to the following effect :– “In addition to the above, the deposit (not carrying interest) payable under bye-law 51-A, namely, at a rate not less than Rs. 25 per bale shall, when demanded, be made by you to me/us in Bombay.” Evidently, this rubber stamp provision is a reproduction of the sentence that used to be found at the end of the margin clause before bye-law 51-A was amended and the clause itself was amended by the Government Notification of 1944.

71 (2) The two new clauses required to be inserted in the con- tract referred to above have also been omitted.

The contention of the respondent was that the contract notes actually issued were not in accordance with the bye- laws of the Association and were accordingly void under Section 8 of the Bombay Cotton Contracts Act, 1932, and that, that being so, the arbitration agreement incorporated in the contract note was also void and there could be no reference to arbitration and there could be no award as purported to have been made by the arbitrators on a refer- ence under the void contracts.

The matter was dealt with by Mr. Justice Chagla who overruled the contentions of the Respondent and dismissed the application on 2nd July 1946. The learned Judge point- ed out that whereas bye-law 80 required that delivery con- tracts must be made on the official form and that the hedge contracts, when made in writing, must be made in the form given in the Appendix, clause 82 did not require that the contracts between members acting as commission agents on the one hand and their constituents on the other must be in writing or in particular form. According to the learned Judge bye-law 82 required two things, namely :- (i) that the contracts referred to therein should be made subject to the bye-laws, and (ii) that a contract note in the prescribed form should be rendered in respect of every such contract.

The learned Judge was of the opinion that section 8 of the Bombay Cotton Contracts Act, 1932, only avoided the contracts i.n case of contravention of the first require- ment, namely, if the contracts were not made subject to the bye-laws, but had no concern with the contravention of the second requirement, namely, if the contract notes were not in the prescribed form. The learned Judge appears to have made a distinction between a contract and a contract note which was a mere evidence of the contract. According to him, even if the contract note was not in the prescribed form, that fact did not affect the pre-existing contract which had only to be made subject to the bye-laws but need not have 10 72 been made in writing at all. Accordingly, the learned Judge dismissed the application.

Being aggrieved by that decision, the Respondent went up on appeal which was heard by Stone C.J. and Coyajee J. who accepted the appeal, set aside the dismissal of the Respond- ent’s petition and gave the declaration prayed for and set aside the award. The Appellants have now come up on appeal before us after having obtained the necessary certificate from the Bombay High Court.

We find ourselves in agreement with the decision of the appellate Court. Ordinarily, when a contract between the parties is reduced to writing, the writing becomes the repository of the contract and that writing only can be looked at to ascertain what the contract between the parties is, and if that writing is not in accordance with the bye- laws, the contract itself must be void. We do not, however, feel pressed to emphasize this aspect of the matter, for, assuming that there was a pre-existing oral contract between the parties dehors the written contract note, as held by Chagla J. we have yet to see whether the so-called pre- existing oral contract was in accordance with the bye-laws, for if it were not, then it would be hit by section 8 of the Bombay Cotton Contracts Act, 1932. There is no suggestion that ‘the terms of the so called pre-existing oral contract were in any way different from the terms subsequently re- corded in the contract notes actually issued.

In the first place we find that the last sentence in the margin clause, in order to be in accordance with the bye- laws, should have been as follows :- “In addition to the above, the deposit (not carrying interest) payable under bye-law 51-A, namely, at a rate not less than Rs. 121/2 per bale shall, when demanded, be made by you to me/us in Bombay.” Instead of that sentence, we have the rubber stamp impression reading as follows :- “In addition to the above, the deposit (not carrying interest) payable under bye-law 51-A, namely, at a 73 rate not less than Rs. 25 per bale shall, when demanded, be made by you to us in Bombay.” The respondent contends that this term is not in accord- ance with the bye-laws of the Association. The Appellants on the other hand contend that there is no discrepancy, because a provision for a rate not less than Rs. 25 per bale does not contravene or is not inconsistent with the provi- sion for a rate not less than Rs. 121/2 per bale. In other words, any rate above the rate of Rs. 121/2 may be stipulat- ed in accordance with the terms of business to which the contract was subject, for it did not contravene the require- ment that the rate should not be less than Rs. 121/2. It is true that the opening clause of the contract note makes the contract subject to the Appellants’ usual charges and terms of business, but the contract is at the same time subject to the bye-laws of the Association. In order to reconcile the two, such terms of business as are not inconsistent with the bye-laws can only be permitted to prevail. The rubber stamp provision clearly imposes on the respondent as the constitu- ent the liability to deposit a higher amount as the minimum amount to be deposited and is to that extent not in accord- ance with bye-law 51-A. Apart from this consideration there is another serious objection to the rubber stamp provision.

The language of that rubber stamp provision clearly indi- cates that it purports to summarise and set out what is payable under bye-law 51-A. In fact, as already stated,above, bye-law 51-A had been amended and what is payable under the amended’ bye-law is not at a rate not less than Rs. 25 but at a rate not less than Rs. 121/2. There- fore, the rubber stamp provision wrongly summarises and sets out the provisions of bye-law 51-A and consequently is not in accordance with that bye-law.

The contention of the Respondent has been and is that by reason of the omission of the two clauses at the end of the contract note actually issued by the Appellants it was not in accordance with the bye-laws. The learned Attorney-Gener- al appearing for the Appellants contends that the contract was expressly made subject 74 to the bye-laws and, therefore, the provisions of the new bye-law 65-A were by reference incorporated in the contract.

This contention, we are satisfied, is unsound. Bye-law 65-A in terms regulates the relationship between members and incorporation thereof in a contract between a member agent and an outsider constituent will make no sense and on a plain reading will be meaningless. Further, under bye-law 65-A the last buyer has certain options. The outstanding contract being one for purchase of 900 bales, the Appel- lants, if they became the last buyers, could, under that bye-law, exercise any of those options at their own dis- cretion. In the second of the two clauses which have been omitted from the contract note this option has been made subject to express instructions of the constituent to the contrary, for it provides that the Appellants as agents would be free to exercise their option– “unless I/We shall have received express instructions from you in writing to the contrary, before the commence- ment of the delivery period if the contract is entered into before the commencement of the delivery period or with the order if the contract is entered into during the permitted days of trading in the delivery period.” By reason of the omission of the two clauses, this right of the Respondent as constituent is not made a term of the contract between the parties. It follows, therefore, that the so-called pre-existing oral contract is not in accord- ance with the bye-laws on this ground also.

For reasons stated above, this appeal fails and must be dismissed with costs.

PATANJALI SASTRIJ.—I agree that this appeal should be dismissed with costs, but I would prefer to rest my deci- sion solely on the ground of the omission to include in the contract in question the two clauses newly added in the prescribed form in order to give effect to bye-law 65-A. Appeal dismissed.

Agent for the appellants, Rajinder Narain.

Agent for the respondent: M.S.K. Sastri.

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