# [1966] 1 S.C.R. 709

- **Citation:** [1966] 1 S.C.R. 709
- **Court:** Supreme Court of India
- **Decided:** 1966
- **Case number:** Writ Petition No. 79 of 1965
- **Bench:** A. K. Sarkar, M. Hidayatullah, Raghubar Dayal, J. R. Mudholkar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1966-1-s-c-r-709-3594
- **Pages:** 49

## Headnote

Defence of India Rules, 1962, r. 30(1) (b)-"Public order" and "law
and order", difference between-Scope of rule.
Constitution of India, 1950, Art. 359(1)-President's Order suspending
rights under A"ts. 21 and 22-Right to move Supreme Court under Art.
32-Efject on.
Rule 30( 1) (b) of the Defence of India Rules, 1962, provided that a
Stat~ Government might, if it was satisfied with respect to a person that
with a view to preventing him from acting in a manner prejudicial, inter
alia to "public safety and maintenance of public order" it is necessary
to do so~ order him to be detained. A Distric~ Magistrate to whom the
power of the Government qf the State of Bihar had been delegated under
s. 40(2) of the Defence of India Act, 1962, ordered the deten:ion of the
petitioner under 'the rule.
The order stated that the District Magistrate was satisfied, that with a
view to prevent the petitioner from acting in any manner prejudicial to
the "public safety and the maintenance of law and order," it was necessary to detain him.
Prior to the making of the order the District Magistrate had, however, recorded a note stating that having read lhe report
of the Police Superintendent that the peti·tioner's being at large was
prejudicial to "public safety and maintenance of public ordt!r'', he \vas
satisfied that the petitioner should be detained under the rule.
~fhe petitioner moved this Court under Art. 32 of the Constitution for a writ of
habeas corpus directing his release from detention, contending that : (i)
though an order of detention to prevent acts prejudicial to public order
may be justifiable an order to prevent acts prejudicial to law and order
would not be justified by the rule; (ii) the order mentioned a notifiootion
which did not contain the necessary delegation; (iii) the District Magistrate acted beyond his jurisdiction by considering the danger not only
in his district but in the entire State; and (iv) all the conditions mentioned
in the rule must be cumulatively applied hefore the order of detention
could be made.
The respondent-State raised a
preliminary
obJection,
that the President of India had made an Order under Art. 359(1) that the
right of a person to move any court for the enforcement of the rights
confe"ed by Arto. 21 and 22 shall remain suspended for the period during
which the proclamation of emergency under Art. 352 was in force, if
such person had been deprived of any such rights under the Defence of
India Act or any rule made thereunder, and that therefore, this Court was
prevented from entertaining the petition.
HELD: (Per Full Court) : (i) The petition was maintainable.
Per Sarkar, J. : The order of the President does not form a bar to all
appJications for release from detention under the Act or the Ruies. Where
a person was detained in violation of the mandatory provisions of the
Defence of India Act his right to move the Court was not suspended.
Since the petitioner contended that the order of detention was not justitied bv the Act or Rules and was therefore against the provisions of the
Act, th-, petitioner was entitled to be heard. [716 G; 717 A-Bl
710
IUPUIO COURT REPORTS
[1966] I i.C.&
Per Hidayatullah and Bachawat, JJ. : The net result of the President'•
A
Order is to stop all claims to enforce rights ansing from Jaws olher than tho
Dolence of India Act and the Rules, and the provisions of Arl. 22 at
variance with the Defence of India Act and the Rules are of no avail. But
the deprivauon must be a1 good fallh under the Defence of India Act or any
rule or order made thereunder. The President's Order docs not say that
even if a person is proi..cedc<l aga1n~t in b. each ot the l.)cfcnce of India
Act or the Rules or ma/a fide he cannot move the Court to comploin that
tho Act and the Rules under colour of which some action was taken, do
B
not warrant it.
It follows, therefore, that this Court acting under Ari. 32
on a petition for th~ issue of a writ of habeas corpus must
no~ allow
breaches of lhe Deience of I

## Text

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DR. RAM MANOHAR LOHIA
v .
STAIE OF BIHAR AND OTHERS
September 7, l 965
[A. K. SARKAR, M. HIDAYATULLAH, RAGHUBAR DAYAL,
J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]
Defence of India Rules, 1962, r. 30(1) (b)-"Public order" and "law
and order", difference between-Scope of rule.
Constitution of India, 1950, Art. 359(1)-President's Order suspending
rights under A"ts. 21 and 22-Right to move Supreme Court under Art.
32-Efject on.
Rule 30( 1) (b) of the Defence of India Rules, 1962, provided that a
Stat~ Government might, if it was satisfied with respect to a person that
with a view to preventing him from acting in a manner prejudicial, inter
alia to "public safety and maintenance of public order" it is necessary
to do so~ order him to be detained. A Distric~ Magistrate to whom the
power of the Government qf the State of Bihar had been delegated under
s. 40(2) of the Defence of India Act, 1962, ordered the deten:ion of the
petitioner under 'the rule.
The order stated that the District Magistrate was satisfied, that with a
view to prevent the petitioner from acting in any manner prejudicial to
the "public safety and the maintenance of law and order," it was necessary to detain him.
Prior to the making of the order the District Magistrate had, however, recorded a note stating that having read lhe report
of the Police Superintendent that the peti·tioner's being at large was
prejudicial to "public safety and maintenance of public ordt!r'', he \vas
satisfied that the petitioner should be detained under the rule.
~fhe petitioner moved this Court under Art. 32 of the Constitution for a writ of
habeas corpus directing his release from detention, contending that : (i)
though an order of detention to prevent acts prejudicial to public order
may be justifiable an order to prevent acts prejudicial to law and order
would not be justified by the rule; (ii) the order mentioned a notifiootion
which did not contain the necessary delegation; (iii) the District Magistrate acted beyond his jurisdiction by considering the danger not only
in his district but in the entire State; and (iv) all the conditions mentioned
in the rule must be cumulatively applied hefore the order of detention
could be made.
The respondent-State raised a
preliminary
obJection,
that the President of India had made an Order under Art. 359(1) that the
right of a person to move any court for the enforcement of the rights
confe"ed by Arto. 21 and 22 shall remain suspended for the period during
which the proclamation of emergency under Art. 352 was in force, if
such person had been deprived of any such rights under the Defence of
India Act or any rule made thereunder, and that therefore, this Court was
prevented from entertaining the petition.
HELD: (Per Full Court) : (i) The petition was maintainable.
Per Sarkar, J. : The order of the President does not form a bar to all
appJications for release from detention under the Act or the Ruies. Where
a person was detained in violation of the mandatory provisions of the
Defence of India Act his right to move the Court was not suspended.
Since the petitioner contended that the order of detention was not justitied bv the Act or Rules and was therefore against the provisions of the
Act, th-, petitioner was entitled to be heard. [716 G; 717 A-Bl
710
IUPUIO COURT REPORTS
[1966] I i.C.&
Per Hidayatullah and Bachawat, JJ. : The net result of the President'•
A
Order is to stop all claims to enforce rights ansing from Jaws olher than tho
Dolence of India Act and the Rules, and the provisions of Arl. 22 at
variance with the Defence of India Act and the Rules are of no avail. But
the deprivauon must be a1 good fallh under the Defence of India Act or any
rule or order made thereunder. The President's Order docs not say that
even if a person is proi..cedc<l aga1n~t in b. each ot the l.)cfcnce of India
Act or the Rules or ma/a fide he cannot move the Court to comploin that
tho Act and the Rules under colour of which some action was taken, do
B
not warrant it.
It follows, therefore, that this Court acting under Ari. 32
on a petition for th~ issue of a writ of habeas corpus must
no~ allow
breaches of lhe Deience of India Act or the Rules to go unquestivned, aa
Art. 359 and the President's Order were not intended to condone an illegitimate enforcement o[ the D::fence of India Act. [731 B, E, F; 733 B-C)
Per Raghubar Dayal, J, : This Court can investigate whether the District
Magistrate exercised the power under r. 30 hones1Jy and bona fide, or not,
C
that is, whether he ordered detention on being satisfied as required by r. 30.
(748 HJ
Per Mudholkar, J. : Before an entry into the portals of this Court
could be dented to a detenu, he must be shown an order under r. 30(1)
of the Defence of India Rules made by a competent authority stating that
it was satisfied that the de:enu was likely 10 indulge in activi1ies which
would be prejudicial to one or more of the matters referred to in the rule.
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If th-o detenu con'ends that the order, though it purports to be under
r. 30( I), was not competently made, this Court has the duty to enquire
into the matter.
Upon an examination of the order, if the Court finds that
it was not competently made or was ambiguous, it must exercise its powen
under Art. 32, entertain the petition thereunder and make an appropriate
order. [755 H; 756 A-Bl
Makhan Singh v. State of Punjab, [1964) 4 S.C.R. 797 followed.
:r.
(ii) Per Sarkar, Hidayatullah, Mudholkar and Bachawat JJ. : The petitioner should be set at liberty.
Per Sarkar J. : The order detaining the petitioner would not be in
terms of the rule unless it could be said that the expression "law and order"
means the same thing as "public order''.
What was meant by maintenance
of public order was the prevention of disorder of a grave nature, a disorder
which the authorities thought was necessary to prevent in view of the
emergent situation created by external aggression; whereas, the expr~ion
"maintenance of law and order" may mean prevention of disorder of
comparatively lesser gravity and of local significance only. [718 B, D, BJ
Courts arc only entitled to look at the face of the order, bccau~ the
aatisfi.ction which justifies the order under the rule is the subjective satisfaction of the detaining authority.
If on its face an order of detention i!
in terms of the rule. ordinarily, a court is hound to stay ils hands and
uphold the order. When an order is on the face of it not in terms of the
rule, a cour' cannot enter into an investigation whether the order of dcten·
tion was in fac! in terms of lhe rule. So the Sta'.e canno! be heard to say
of prove that an order was in fact made 10 prevcn~ ac's prcjud:cial to public
order though the ord~r docs not say so. It io; not a case where the order
is onlv evidence of the de1eniion having ht!en made under th'! rule. The
order 'is conclu9ive as to the state of !he mind of the per.;on who made it
and no evid~nce is admissible to prove that state of mind.
Extraneou.'
evidence such a~ the no'e made by the District Magistrate was not admis.-
sihle to orove that the rule ha~ been complied with. [718 G-H; 718 B-D;
720 G: 722 B-C)
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R. M. LOHIA v. STATE (Sarkar, l.)
711
This is not taking too technical a view, but is a matter of substance.
H a man can be deprived of his liberty under a rule by the simple process
of the making of an order, he can only be so depri>ed if the order is in
terms of the rule. If for the purpose of justifying the detention such compliance by itself is enough, a non-compliance must have a contrary effect
A mere reference in the detention order to the rule is not sufficient to show
that by "law and order" what was meant was public order". [719 F-G;
720 A-CJ
The order no doubt mentions another ground of detention, namely, the
prevention of acts prejudicial to public safety, and in so far as it did so,
it was clearly within the rule.
But the order has notwithstanding this, to
be held illegal, though it mentioned a ground on which a legal order of
detention could have been based, because, it could not be said in what
manner and to what extent the valid and invalid grounds operated on the
mind of the authority concerned and contributed to the creation of his
subjective satisfaction. [722 E; G-H]
Shibban Lal Saksena v. State of U.P. [1954] S.C.R. 418, followed.
Per Hidayatullah and Bachawat, JJ. : The satisfaction of the detaining
authority cannot be subjected to objective tests and courts are not to exercise appellat» powers over such authorities and an order proper on its
face, passed by a competent authority in good faith, would be a complete
answer to a petition for a writ of habeas corpus. But when from the order
itself circumstances appear which raise a doubt whether the officer concerned had not misconceiv:d his own powers, there is need ,to pause and
enquire.
The enquiry then is, not with a \iew to investigate the sufficiency of the materials but into the officer's notions of his power. If
the order passed by him showed that he thought his powers were more
extensive than they actually were, the order might fail to be a good order.
No doubt, what matters is the substance; but the form discloses the approach
of the detaining authority to the serious question and the error in the form
raises the enquiry about the substance. When the liberty of the citizen
i.s put within the reach of authority and the scrutiny by courts is barred,
the action must comply not only with the substantive requirements of
law but also with those forms which alone can indicate that the substance
h"" been complied with. [739 H; 740 B-C, E; 741 C; Fl
The District Magistrate acted to "maintain law and order" and hi3
order could not be read differently even if there was an affidavit the other
way. If he thought in terms of "public order" he should have said so in
his order, or explained bow the error arose.
A mere reference to his
earlier note was not sufficient and the two expressions cannot be reconciled by raising an air of similitude between them. The contravention of
law always affect• order but before it can be said to affect public order, it
must affect the community or the public at large.
One has to imagine
three concentric circles, the largest representing "law and order~', the next
representing .. public order" and the smallest representing
0 security of
State".
An act may affect "law and order" but not "public order," just
as an act may affect "public order" but not "security of the State".
Therefore, by using the expression "maintenance of law and order" the District
Ma~strate was widening his own field of action and was addinv. a clause
to the Defence of India Rules. [740 E-F, H; 746 B-E; 747 D, E]
The order on its face shows two reasons, but it was not certain that the
District Magistrate was influenced by one consideration and not both,
because, it was not open to the Court to enquire into the material on which
the Di~trict Magistrate acted. or to examine the reasons to see whether
hi• action fell within the other topic, namely, public safety. [746 F-G]
712
SUPllEMB OOllllT llEPORTS
[1966] l s.c I<.
J'er Mudholkar J.: The use of the expression "maiolenance of law
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and order" in the in1pugncd order makes Jt ambiguous on iLs Lice and
therefore the order mus. uc held lo b..: bad.
No doubt the order also
refers lo pul>J1c safety.
llu-l then the qucs:ions arjs·~: What is
it
that
weighed wuh I.be Dis[rict Magbtralc, U1c apprehension r~garding public
safety or an apprehension regarding
mainten~nce of la\v and order?
Was the apprehension entertained by the Dislrict lviagistratc that tho
petitioner, if left at large, v.·as likely to do something which will in1pcril
the mainJenance of public order generally, or was it that he apprehended
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that the petitioner's activities may cause di~lurbanccs in a particular Joc;.dilv?
His order, which was the only matcri<1l which could be considered, g:lve
no indication on th09C que::iLions.
·J"ltc
cxpr·.::,~ion .. J<.iw <tnd order" docs
not find any place in the rule and is not synonymous wilh "putlic order".
"Law and order" is a comprehensive expression in which wool<l be included
DO! merely public order but mat1ers such as public peace, ira11'1uilliLy,
orderliness in a locality or a local area and pcrhap• olher mailers. [756 H;
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757 A, C, D, FJ
Pu Ragbubar Dayal J. (dissenting): The District Magistrale made the
impugned order on his being satisfied that it was necessary to do so \vith
a view to prevent the petitioner from acting in a manner prejudici:il to
public safety and maintenance of public order. The in1pugncd order was
therefore valid and consequently, the petitioner could not move t!1is Court
for the enforcement of his rights under Arts. 21 and :!2 in vie"'· of the
President's Order under A!I . .J59( I). L 755 B-CJ
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The detaining au:hori-:y is free tu c fahlish
tha~ any defect in the
detention order is of forn1 only and 1101 of ~ubs'.ancc, i! being sat!..,fi..!J of
the necessity lo detain the person for a purpose mentioned in r. 30, though
the purpose has been inaccurately
s~ate<l in the detention order.
·111e
existence of salisfaction does not depend on \\'har is stared in 1hc order
and can be e;lablishcd by the District Magis:rate by his aftidaviJ.
His
omi98ion to refer to "maintenance of public order" docs not mc;in that
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be was not so satisfied, especially when his no1e refers to lhc pc!itioner
being at large lo he prejudicial to public safc~y and 1hc 1naintcnance of
public order.
The pe?itio:.e;·'s affidavit and rejoinder sho\v lhJt 1hc J)istrict Magislrate was SJ.tisfied of the necc')sity of detaining the pc1ili-Jncr to
prevent him from acting in a manner prejudicial to rhe public order,
because of the setting of events that happened on that date.
"Maintenance of law and order" may be an expression of wider import than "publlo
order", but in the context 1n \\hi1.:h i: \~:1'> use:! i'1 the detention order and i'
in view of its use gener<?llV, it should he cono;1rued to mean mainten:1nce of
law and order in regard 10 maintenance of public tranquillity. (749 C-D;
750 C-D; 751 C, F-Gl
Sodhi S/wmshu Singh v. State <>I Pepsu, A.LR. I 954 S.C. 276, referred
to.
Even if tho exprcs'iion "maintenance of law and order" in the impugned
order be not construed as referring to ''maintenance of puhlic ('trder .. the
impugned order cannot be said to be invcilid in view of its being made
with a double objective, that is, with the ohje:t of preventing the petitioner
from acting prejudicially to the public safety and the maintenance of law
and order.
His satisfaction with respect to anv of the purposes mentioned
in r. 30( I) which would justify his ordering the detention of a person i•
sufficient for the validity of the order.
There i.o; no room for ..:on51dering
that he miJ~ht not have passed the order merely with one object in view.
the object being to prevent him from acting prejudicially to public <afety.
It is not a case where his satisfaction \Vas based on two grounds one of
which is irrelevant or non-existent. There docs not appear to he any
re."l.SOn why rhe Dio;;trict \f:1r,istra1c 1,i,1ouid not h;ive paso;;cd the order of
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713
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dctenlion against the petitioner on the satisfaction that it was necessary to
prevent him from actrng prejudicially to public safety. [752 H; 753 B-D;
754 A-Bl
(iii) Per Sarkar, Hidayatullah, Raghubar Dayal and Bachawat, JJ. :
The delegation was valid.
Per Sarkar J. : In spite of the mistake in the order as to the Notification
delegating the power, evidence could be given to show that the delegation
B
had in fact been made, because, the mistake did not vitiate the order. To
admit such evidence would not be going behind the face of the order,
becaUBe, what is necessary to appear on the face of the order is the satisfaction of the Authority of the necessity for detention for any of the
reasons mentioned in r. 30(1)(b), and not his authority to make the
order. [721 D, F-G]
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Per Hidayatullah, Raghubar Dayal and Bachawat JJ. : There was only
a clerical error in mentioning the wrong notification and being a venial
fault did not vitiate the order of detention.
Also, s. 40 ( 2) does not
require the imposition of any conditions but only permits it. [737 F; 738 A;
741 G; 748 DJ
(iv) Per Hidayatullah, Raghubar Dayal and Baohawat, JJ.: There was
nothing \Vrong in the District Magistrate taking a broad view of the peti~
tioner's activities so as to weigh the possible harm if he was not detained.
Such a viewing of tbe activities. of a ~rson before passing the order
against him does not necessarily spell out extra-territoriality. but is really
designed to assess properly the potentiality of danger which is the main
obj<!ct of •he rule to prevent. [737 G-H; 748 DJ
(v) Per Hidayatullah, Raghubar Dayal, Mudholkar and Bachawat, JJ. :
It is not necessary that the appropriate authority should entertain an apprehension that the person to be detained is likely to participate in every one
of the activities referred to in the rule. [739 F; 748 D; 756 Fl
ORIGINAL JURISDICTION : Writ Petition No. 79 of 1965.
Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights.
The petitioner appeared in person.
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A. V. Viswanatha Sastri and S. P. Varma, for the respondents.
Sarkar J., Hidayatullah J. (on behalf of himself and Bachawat
J.) and Mudholkar J. delivered separate concurring Judgments.
Raghubar Dayal J. delivered a dissenting Opinion.
Sarkar, J. Dr. Ram Manohar Lohia, a member of the Lok
G Sabha, has moved the Court under Art. 32 of the Constitution
for a writ of habeas corpus directing his release from detention
under an order passed by the District Magistrate of Patna. The
order was purported to have been made under r. 30<1) (b) of the
Defence of India Rules, 1962.
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Dr. Lohia, who argued his case in person, based his claim to
be released on a number of grounds. I do not propose to deal
with all these grounds for I have come to the conclusion that he
is entitled to be released on one of them and to the discussion of
714
SUPllBIO COU1T llBPOR.TS
[1966] 1 S.C.R.
that ground alone I will confine my judgment.
With regard to his
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other grounds I will content myself only with the observation that
as at present advised, I have not been impressed by them.
The order of detention runs thus : "Whereas I, J. N. Sahu,
District Magistrate, Patna, am satisfied ........ that with a view
to preventing him from acting in any manner prejudicial to the
II
public safety and the maintenance of law and order, it is necessary
to make an order that he be detained.
Now, therefore, in exercise
of the powers conferred by clause <b) of sub-rule ( 1) of rule 30
of the Defence of India Rules, 1962 read with Notification No.
!80/CW ............ I hereby direct that .......... Dr. Ram
Manohar Lohia be arrested ........ and detained in the Central c
Jail Hazaribagh, until further orders."
Now the point made by
D1. Lohia is that this order is not in terms of the rule under which
it purports to have been made and, therefore, furnishes no legal
justification for detention.
The reason why it is said that the
order is not in tenns of the rule is that the rule does not justify the
detention of a person to prevent him from acting in a manner preD
judicial to the maintenance of law and order while the order
directs detention for such purpose.
It is admitted that the rule
provides for an order of detention being made to prevent acts
prejudicial to the maintenance of public order, but it is said that
public order and law and order are not the same thing. and,
therefore, though an order of detention to prevent acts prejudicial
to public order might be justifiable, a similar order to prevent
acts prejudicial to law and order would not be justified by the
rule.
It seems to me that this contention is well founded.
Before proceeding to state my reasons for this view, I have to F
dispose of an argument in bar advanced by the respondent State.
That argument is that the petitioner has, in view of a certain order
of the President to which I will presently refer, no right to move
the Court under Art. 32 for his release.
It is said that we cannot, therefore, hear Dr. Lohia's application at all.
To appreciate
this contention, certain facts have to be stated and I proceed to G
do so at once.
Article 352 of t.he Constitution gives the President of India
a power to declare by Proclamation that a grave emer1?ency exist.I;
whereby the security of India is threatened inter a/ia by external
aggression.
On October 26, 1962, the President issued a Procla11
mation under this article that such an emergency existed.
Thi~
presumably was done in view of China's attack on the north eastern
frontiers of India in September 1962.
On the same day as the
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R. M. LOHIA v. STATE (Sarkar, I.)
715
Proclamation was made, the President passed the Defence of India
Ordinance and rules were then made thereunder on November 5,
1962. The Ordinance was later, on December 12, 1962, replaced
by the Defence of India Act, 1962 which however continued in
force the rules made under the Ordinance.
On November 3, 1962,
the President made an order under Art. 359 ( 1) which he was
entitled to do, declaring "that the right of any person to move any
court for the enforcement of the rights conferred by article 21
and article 22 of the Constitution shall remain suspended for the
period during which the Proclamation ........ is in force, if such
person has been deprived of any such rights under the Defence of
India Ordinance, 1962 or any rule or order made thereunder."
There is no doubt that the reference in this Order to the "Defence
of India Ordinance, 1962" must, after that Ordinance was replaced
by the Act, as earlier stated, be understood as a reference to the
Act : see Mohan Chowdhury v. The Chief Commissioner,
Tripura ( 1). I should now state that the Proclamation is still
in force.
It is not in dispute that the present petition has been made for
the enforcement of Dr. Lohia's right to personal liberty under Arts.
21 and 22. These articles in substance-and it should suffice for
the present purpose to say no more-give people a certain personal
liberty.
It is said by the respondent State that the President's
Order under Art. 359 (1) altogether prevents us from entertaining
Dr. Lohia's petition and, therefore, it should be thrown out at
once.
This would no doubt, subject to certain exceptions to which
a reference is not necessary for the purposes of the present judgment, be correct if the Order of November 3, 1962 took away
all rights to personal liberty under Arts. 21 and 22.
But this,
the Order does not do.
It deprives a person of his right to move
a court for the enforcement of a right to such personal liberty only
when he has been deprived of it by the Defence of India Act-it
is not necessary to refer to the Ordinance any more as it has been
replaced by the Act--or any rule or order made thereunder. If
he has not been so deprived, the Order does not take away his
right to move a court. Thus if a person is detained under the
Preventive Detention Act, 1950, his right to move the Court for
enforcement of his rights under Arts. 21 and 22 remains intact.
That is not a case in which his right to do so can be said to have
been taken away by the President's Order.
This Court has in
fact heard applications under Art. 32 challenging a detention under
(1) [1964] 3 S.C.R. 442.
716
SUPlll!MB COUllT REPORTS
(1966) I S.C.ll.
that Act : see Rameshwar Shaw v. District Magistrate of BurdA
wan('). If any person says, as Dr. Lohia does, that he has been
deprived of his personal liberty by an order not made under the
Act or the Rule~. there is nothing in the President's Order under
Art. 359( I) to deprive him of his right to move the Court under
Art. 32.
The Court must examine his contention and decide
whether he has b:cn detained under the Act or the Rules and can B
only throw out his petition when it finds that he was so detained,
but not before then. If it finds that he was not so detained, it
must proceed to hear his petition on its merits.
The right under
Ari. 32 is one of the fundamental rights that the Constitution has
guaranteed to all persons and it cannot be taken away except by
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the methods as provided in the Constitution, one of which is by
an order made ur.der Art. 359.
The contention that an order
under that article has not taken away the constitutional right to
personal liberty must be examined.
Mr. Verma said that Smith v. East F.l/oe Rural District Counri/(2) supported the contention of the respondent State. I do not
think so.
That case turned on an entirely difforent statute.
That
statute provided n method of challenging a certain order by which
property was comnulsorily purchased and stated that it could not
be questioned in any other way at all.
It was there held that an
action to set aside the order even on the ground of havin!! been
made ma/a fide, did not lie as under the provision no acfion was
maintainable for the r1urrose.
That case is of no assistance in
deciding the question in what c;rcumstance a right to move the
court has been taken away by the entirely different provisions that
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we have to consider.
Herc only a right to move a court in certain
circumstances has been taken away and the question is, has the
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court been moved on the present occasion in one of those circumstances ? The President's Order does not bar an enquiry into that
question.
Apart from the fact that the reasoning on which the
English case is ba~ed, has no aonlication here,
we
have clear
observations in judgments of this Court which show that the Order
of the President does not form a bar to all applications for release
from detention under the Act or the Rules.
I will refer only to
one of them. Tn Makhan Singh v. The State of Punjab(') it was
said, "If in challenging the validity of his detention order, rhe
detenu is pleading any right outside the rights specified in the
Order, his right to move any court in that behalf is not ~us.oended"
G
and by way of illustration of this proposition. a case where a
II
(I) [1964) 4 S.C.R. 921.
(2) [1956) L.R. A.C. 7'6.
(3) (1964) 4 S.CR. 797.
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R. M. LOHIA v. STATE (Sarkar, J.)
717
person was detained in violation of the mandatory vrovisions of
the Defence of India Act was mentioned.
That is the present case
as the petitioner contends that the order of detention is not justified
by the Act or Rules and hence is against its provisions.
The
petitioner is entitled to be heard and the present contention of the
respondent State must be held to be ill founded and must fail.
I now proceed to consider the merits of Dr. Lohia's contention
that the Order detaining him had not been made under the Defence
of India Rules.
I here pause to observe that if it was not so made,
there is no other justification for his detention; none is indeed
advanced.
He would then be entitled to his release.
I have already stated that the Proclamation of Emergency was
made as the security of India was threatened by external aggression.
That Proclamation of emergency was the justification for
the Act.
The Act in fact recited the Proclamation in its preamble. Section 3 of the Act gave the Central Government power to
make rules providing for the detention of persons without trial
for various reasons there mentioned.
Rule 30( 1) Cb) under which
the order of detention of Dr. Lohia was made was framed under
s. 3 and is in these terms : "The Central Government or the State
Government, if it is satisfied with respect to any particular person
that with a view to preventing him from acting in any manner
prejudicial to the defence of India and civil defence, the public
safety, the maintenance of public order, India's relations with
foreign powers, the maintenance of peaceful conditions in any part
of India, the efficient conduct of military operations or tl>.e maintenance of supplies and services essential to the life of the community, it is necessary to do so, may make an order-(a) ....... .
(b) directing that he be detained." As I have said earlier, the
order was made by the District Magistrate, Patna, to whom the
power of the Government of the State of Bihar in this regard had
been duly delegated under s. 40(2) of the Act.
Under this rule a Government can make an order of detention
against a person if it is satisfied that it is necessary to do so to
prevent him from acting in a manner prejudicial, among other
things, to public safety and the maintenance of public order.
The detention order in this case is based on the ground that it
was necessary to make it to prevent Dr. Lohia from acting in any
manner prejudicial to public safety and the maintenance of law
and order.
I will, in discussing the contention of Dr. Lohia,
proceed on the basis as if the order directing detention was only
for preventing him from acting in a manner prejudicial to the
718
SUPllEME C:OUR.T REPOllTS
(1966) 1 S.C.R.
maintenance of law and order.
I will consider what effect the
A
inclusion in the order of detention of a reference to the necessity
for maintaining public safety has, later.
The question is whether
an order could be made legally under the rule for preventing
disturbance of law and order.
The rule does not say so.
The
order, therefore, would not be in terms of the rule unless it could
be said that the expression "law and order" means the same thing
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as "public order" which occurs in the rule.
Could that then
be said ?
I find no reason to think so.
Many of the things
mentioned in the rule may in a general sense be referable to the
necessity for maintaining law and order.
But the rule advisedly
does not use that expression.
c
It is commonplace that words in a statutory provision take
their meaning from the context in which they are used.
The
context in the present case is the emergent situation created by
external aggression.
It would, therefore, be legitimate to hold
that by maintenance of public order what was meant was prevention of disorder of a grave nature, a disorder which the D
authorities thought was necessary to prevent in
view
of the
emergent situation.
It is conceivable that the expression "maintenance of Jaw and order" occurring in the detention order may
not have been used in the sense of prevention of disorder of a
grave nature.
The expression may mean prevention of disorder
of comparatively lesser gravity and of local significance only. To E
take an illustration, if people indulging in the Hindu religious
festivity of Holi become rowdy, prevention of that disturbance
may be called the maintenance of law and order.
Such maintenance of law and order wa~ obviously not in the contemplation
of the Rules.
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What the Magistrate making the order exactly had in mind.
by the use of the words law and order, we do not know.
Indeed,
we are not entitled to know that for it is well-settled that courts
cannot enquire into the grounds on which the Government
thought that it was satisfied that it was neces.~ary to make an
order of detention.
Courts are only entitled to look at the face G
of the order.
This was stressed on us by learned counsel for
the respondent State and the authorities fully justify that view.
If. therefore, on its face an order of detention is in terms of the
rule, a court is bound to stay its hands and uphold the order.
I
am leaving here out of consideration a contention that an order
good on the face of it is bad for reasons dehors it, for example,
11
because it had been made ma/a fide.
Subject to this and other
similar exceptions--to which I have earlier referred and as to
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R. M. LOHIA v. STATE (Sarkar, J.)
which it is unnecessary to say anything in the present context
and also because the matter has already been examined by this
Court in a number of cases-a court cannot go behind the face
of the order of detention to determine its validity.
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The satisfaction of the Government which justifies the order
under the rule is a subjective satisfaction.
A court
cannot
enquire whether grounds existed which would have created that
satisfaction on which alone the order could have been made in
the mind of a reasonable person. If that is so,-and that indeed
is what the respondent State contends,-it seems to me that when
an order is on the face of it not in terms of the rule, a court
cannot equally enter into an investigation whether the order of
detention was in fact, that is to say, irrespective of what is stated
in it, in terms of the rule.
In other words, in such a case the
State cannot be heard to say or prove that the order was in fact
made, for example, to prevent acts prejudicial to public order
which would bring it within the rule though the order does not
say so.
To allow that to be done would be to uphold a detention without a proper order. The rule does not envisage such a
situation. The statements in the affidavit used in the present case
by the respondent State are, therefore, of no avail for establishing that the order of detention is in terms of the rule.
The detention was not under the affidavit but under the order.
It is of
some significance to point out that the affidavit sworn by the
District Magistrate who made the order of detention does not say
that by the use of the expression law and order he meant public
order.
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It was said that this was too technical a view of the matter;
there was no charm in words used.
I am not persuaded by this
argument.
The question is of substance. If a man can be
deprived of his liberty under a rule by the simple process of the
making of a certain order, he can only be so deprived if the
order is in terms of the rule.
Strict compliance with the letter
of the rule is the essence of the matter.
We are dealing with a
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statute which drastically interferes with the personal liberty of
people, we are dealing with an order behind the face of which a
court is prevented from going.
I am not complaining of that.
Circumstances may make it necessary.
But it would be legitimate to require in such cases strict observancei of the rules. If
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there is any doubt whether the rules have been strictly observed,
that doubt must be resolved in favour of the detenu.
It is certainly more than doubtful whether law and order means the same
as public order.
I am not impressed by the argument that the
720
SUPREMB COUllT RBPORTS
(1966] I S.C.ll.
reference in the detention order to r. 30 (I )(b) shows that by
law and order what was meant was public order.
That is a most
mischievous way of approaching the question. If that
were
right, a reference to the rule in the order might equally justify all
other errors in it.
Indeed it might with almost equal justifica·
tion then be said that a reference to the rule and an order of
detention would be enough.
That being so, the only course open
to us is to hold that the rules have not been strictly observed.
If for the purpose of justifying the detention such compliance by
itself is enough, a non-compliance must have a contrary effect.
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Carltona Ltd. v. Commissioners of Works(') is an interesting
case to which reference may be made in this connection. It turned C
on a statutory Regulation empowering a specified authority to
take possession of land for the purposes mentioned
in it in
various terms but which renns did not include the expres.sion
"national interest".
Under this Regulation possession of cenain
premises of the C'arltona Company was t:iken after serving
a
notice on it that that was being done "in the national interest".
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It was contended by the Carltona Comcany that it had been
illegally deprived of the possession of its premises because the
notice showed that that possession was not heing taken in terms
of the Regularion.
This contention failed as it was held that •he
giving of the notice wa< nnt a pre-rcqui~ik to the exercise of the E
powers under the Regulation and that the notice was '10 more
than a notification that the authorities were exercising the powen.
It was said that the notice was useful only as evidence of the
state of the mind of the writer and, that being so, other evidence
was admissible to establish the fact that the possession of the
premises was being taken for the reasons mentioned in the Regulation.
Our case is entirely different.
It is not a case of a
notice.
Under r. 30(1 )(b) a person can he detained only by
an order and there is no doubt that the order of detention has to
be in writing.
It is not a case where the order is only evidence
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of the detention having been made under the rule.
It is the
only warrant for the detention.
The order funher is conclusive
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as to the state of the mind of the person who made it; no evidence
is admissible to prove that state of mind.
It seems to me that
if the Car/tona case was concerned with an order which alone
resulted in the dispossession. the decision in that case might well
have been otherwise. I would here remind. to prevent any
possible misconception, that I am not considering a case where
H
(!) (!943( 2 All E.R. ~60.
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R. M. LOIDA v. STATE (Sarkar, J.)
721
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the order is challenged on the ground of mala fides
or other
similar grounds to which I have earlier referred.
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Before leaving this aspect of the case, it is necessary to refer
to two other things.
The first is a mistake appearing in the
order of detention on which some argument was based by Dr.
Lohia for quashing the order.
It will be remembered that the
order mentioned a certain Notification No. 180/CW. The Notification intended to be mentioned however was one No. 1115/CW
and the Notification No. 180/CW had been mentioned by
mistake. It was under Notification No. 1115/CW that the power
of the State Government to make an order of detention was
delegated to the District Magistrate under the provisions of
s. 40(2) of the Act to which I have earlier referred.
The reference to the notification was to indicate the delegation of power.
The Notification actually mentioned in the order did not, however,
contain the necessary delegation.
The result was that the order
did not show on its face that the District Magistrate who had
made it had the necessary authority to do so.
This mistake
however did not vitiate the order at all.
Nothing in the rules
requires that an order of detention should state that the authority
making it has the power to do so.
It may be that an order made
by an authority to whom the Government's power has not been
delegated, is a nullity and the order can be challenged on that
ground.
This may be one of the cases where an order good on
its face may nonetheless be illegal.
When the power of the person
making the order is challenged, the only fact to be proved is
that tbe power to make the oraer had been duly delegated to
him.
That can be proved by the necessary evidence, that IS,
by the production of the order of delegation.
That would be a
case somewhat like the Carltona case.
In spite of the mistake
in the order as to the Notification delegating the power, evidence
can be given to show that the delegation had in tact been made.
To admit such evidence would not be going behind the face of
the order because what is necessary to appear on the face of the
6
order is the satisfaction of tbe authority of the necessity for the
detention for any of the reasons mentioned in r. 30( 1) (b) and not
the authority of the maker of the order.
The second thing to which I wish to refer is that it appeared
from the affidavit sworn by the District Magistrate that prior
to the making of the order, he had recorded a note which ra1i
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in these words : "Perused the report of the Senior S. P. Patna for
detention of Dr. Ram Manohar Lohia, M.P. under rule 30(1)(b)
of the Defence of India Rules, on the ground that his being at
L8Sup. C. 1./65-3
722
SUPllEMB COU1T UPORTS
(1966) I S.C.R.
large is prejudicial to the public safety and maintenance of public
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order.
From the report of the Sr. S. P., Patna, I am satisfied
that Dr.