# Anotller v. Tiie Stale of De/Iii ( 1 ) and Romesh Thapparv. TheS111te

- **Citation:** [1951] 1 S.C.R. 451
- **Court:** Supreme Court of India
- **Decided:** 1950-08-15
- **Bench:** SHRI HARILAL KANIA c. J, Patanjali Sastri, Mehr Chand Mahajan, S. R. DAs, VIVIAN BosE JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anotller-v-tiie-stale-of-de-iii-1-and-romesh-thapparv-thes111te-98
- **Pages:** 23

## Headnote

451
Constitution of lnaia, Arts. 19(1) & (2), 22 (5)-Freedom of
speech-Preventive detention to prevent speeches with a view to maintain public ordei-Omission
to
state objectionable passages
ill
grounds supplied-Legality of detention.
The District Magistrate of Delhi, "being satisfied that with
a view to the maintenance of public order in Delhi it is necessary
to do so" ordered the detention of the petitioners under s. 3 of
the Preventive Detention Act, 1950.
The grounds of detention
communicated
to
the
petitioners were
"that
your · speeches
generally in
the past
and particularly on the 13th
and 15th
August, 1950, at public meetings in
Delhi has been such as to
excite disaffection between Hindus and Mussalmans and thereby
prejudice the maintenance of public order in Delhi and that in
order to prevent you from
making
sucft speeches it is necessary
to make the
said order."
The petitioners contended that under
the Constitution the maintenance of public order was not a purpose for
which
restriction
can be imposed on the freedom of
1951
Jfpil, 6.
1951
11 ... s • .,.
""' 011wr,
...
TIN Stalt ef
D1lhi and
Another.
452
SUPREME COURT REPORTS
[1951]
speech guaranieed by Art. 19 (1) and that the grounds commuI;i.
cated were too vague and
inde6nitc to enable them Io make a
representation and the provisions of Art. 22 (5) of the Constiiution were not complied with, and their detention was therefore
ultra virtt and illegal :
Held by the Full Court (KANIA C. J., PATANJ.UI SASTRI, Mm•
CHAND MAHAJAN, S. R. D.u am!
VIVIAN
Bos. JI.)
th.at
though
personal
liberty
is suffi.cicnrly
comprehensive
to include
the
freedoms enumerated in Art. 19 (1) and its deprivation would
result in the extinction of rho~ -freedoms, the
Constitution has
treated these civil
liberties
as
disinct
fundamental
rights
an<l
made separate provisions in Arts. 19, 21 and 22 as to Ihe 1imit:>-
tioos and conditions subject to which alone they could be taken
a\vay or abridged. Consequently, c\'Cn
though a law
which
restricts freedom of speech
::ind cxprc~sion \vhich
i.s not
<lirected
solely ag:iinst the undermining of the .o;ecurity of the State or its
ovcrthro\\· but is concerned
gcncr~lly in the interests of public
order 111ay not fall within the reservation of cl. (2) of Art. 19 and
may therefore
be void, :in orJcr of
preventive detention cannot
be held to be invali<l merely bc,ause the detention is n1ade with
a
view to prevent
the making of spe<:ches
prejudicial to the
maintenance of public order.
The decisions in Rrij Bl1ushan and
Anotller v. Tiie Stale of De/Iii ( 1 ) and Romesh Thapparv. TheS111te
Madra1(1) arc not inconsistent with. the decision in A ..
1'.. Gopalan
v. Tiie S1111e(1 ).
.
Held per
KANIA C. J.,
PATANjAl.I SAsTRI and S. R. DAS JJ.
(Mum CHAND
MAHAJAN and BosE JJ. dissenting)-As the time
and place at which the speeches \Vere alleged to haye heen made
and their general nature and effect, namely, that they were such
as to excite disaffection between Hindus and Muslims were also
stated in the grounds communicated, they were not too vague or
indefinite to enable the petitioners to 1nake an effective representation
and the
detention
cannot be held to be illegal
on
the
ground that Art.
22 ( 5) was
not complied
with.
Per MEuR
CHAND M.<HAJ AN and
BoSE JI.
(contra )-In the
absence of any
indication in the grounds as to the nature of the
\.Vords used by
the petitioners
in their speeches, fron1 which an inference
has
been drawn against them, the petitioners would not be able fully
to exercise their
fundamental right
of making a
representation
and as there were no such
indic..1tions
in the grounds supplied.
JhcrC \Vas a non~compliancc with the provisions of
cl.
(5) of,
Art. 22 and the detention was illegal.
The State of Bombay v. Atma Ram Sridhar Vaidya(') applied.
Oa1c1NAL
JURISDICTION :
Petitions
Nos. 21, 22 and
44 of 1951.
(I) [I950] S.C.R. 6o5.
(•) (1950] S.C.R. 594.
(3) [ 1950] S.C.R. 88.
(4) [1951] S.C.R. 167.
S.c.R.
SUPREME COURT REPORTS
453
Applications
under
Art.

## Text

_Characters 0–39,860 of 49,526. This is a partial read: ask again with offset=39860 for what follows._

S.C.R.
SUPREME COURT REPORTS
.RAM SINGH
"·
THE STATE Of DELHI AND ANOTHER
BALRAJ KHANNA
t'.
THE ST ATE OF DELHI AND ANOTHER
RAM NATH KALIA.
• t'.
THE ST ATE OF DELHI AND ANOTHER
[SHRI HARILAL KANIA c. J., PATANJALI SASTRI,
MEHR CHAND MAHAJAN, S. R. DAs and VIVIAN
BosE JJ.J
451
Constitution of lnaia, Arts. 19(1) & (2), 22 (5)-Freedom of
speech-Preventive detention to prevent speeches with a view to maintain public ordei-Omission
to
state objectionable passages
ill
grounds supplied-Legality of detention.
The District Magistrate of Delhi, "being satisfied that with
a view to the maintenance of public order in Delhi it is necessary
to do so" ordered the detention of the petitioners under s. 3 of
the Preventive Detention Act, 1950.
The grounds of detention
communicated
to
the
petitioners were
"that
your · speeches
generally in
the past
and particularly on the 13th
and 15th
August, 1950, at public meetings in
Delhi has been such as to
excite disaffection between Hindus and Mussalmans and thereby
prejudice the maintenance of public order in Delhi and that in
order to prevent you from
making
sucft speeches it is necessary
to make the
said order."
The petitioners contended that under
the Constitution the maintenance of public order was not a purpose for
which
restriction
can be imposed on the freedom of
1951
Jfpil, 6.
1951
11 ... s • .,.
""' 011wr,
...
TIN Stalt ef
D1lhi and
Another.
452
SUPREME COURT REPORTS
[1951]
speech guaranieed by Art. 19 (1) and that the grounds commuI;i.
cated were too vague and
inde6nitc to enable them Io make a
representation and the provisions of Art. 22 (5) of the Constiiution were not complied with, and their detention was therefore
ultra virtt and illegal :
Held by the Full Court (KANIA C. J., PATANJ.UI SASTRI, Mm•
CHAND MAHAJAN, S. R. D.u am!
VIVIAN
Bos. JI.)
th.at
though
personal
liberty
is suffi.cicnrly
comprehensive
to include
the
freedoms enumerated in Art. 19 (1) and its deprivation would
result in the extinction of rho~ -freedoms, the
Constitution has
treated these civil
liberties
as
disinct
fundamental
rights
an<l
made separate provisions in Arts. 19, 21 and 22 as to Ihe 1imit:>-
tioos and conditions subject to which alone they could be taken
a\vay or abridged. Consequently, c\'Cn
though a law
which
restricts freedom of speech
::ind cxprc~sion \vhich
i.s not
<lirected
solely ag:iinst the undermining of the .o;ecurity of the State or its
ovcrthro\\· but is concerned
gcncr~lly in the interests of public
order 111ay not fall within the reservation of cl. (2) of Art. 19 and
may therefore
be void, :in orJcr of
preventive detention cannot
be held to be invali<l merely bc,ause the detention is n1ade with
a
view to prevent
the making of spe<:ches
prejudicial to the
maintenance of public order.
The decisions in Rrij Bl1ushan and
Anotller v. Tiie Stale of De/Iii ( 1 ) and Romesh Thapparv. TheS111te
Madra1(1) arc not inconsistent with. the decision in A ..
1'.. Gopalan
v. Tiie S1111e(1 ).
.
Held per
KANIA C. J.,
PATANjAl.I SAsTRI and S. R. DAS JJ.
(Mum CHAND
MAHAJAN and BosE JJ. dissenting)-As the time
and place at which the speeches \Vere alleged to haye heen made
and their general nature and effect, namely, that they were such
as to excite disaffection between Hindus and Muslims were also
stated in the grounds communicated, they were not too vague or
indefinite to enable the petitioners to 1nake an effective representation
and the
detention
cannot be held to be illegal
on
the
ground that Art.
22 ( 5) was
not complied
with.
Per MEuR
CHAND M.<HAJ AN and
BoSE JI.
(contra )-In the
absence of any
indication in the grounds as to the nature of the
\.Vords used by
the petitioners
in their speeches, fron1 which an inference
has
been drawn against them, the petitioners would not be able fully
to exercise their
fundamental right
of making a
representation
and as there were no such
indic..1tions
in the grounds supplied.
JhcrC \Vas a non~compliancc with the provisions of
cl.
(5) of,
Art. 22 and the detention was illegal.
The State of Bombay v. Atma Ram Sridhar Vaidya(') applied.
Oa1c1NAL
JURISDICTION :
Petitions
Nos. 21, 22 and
44 of 1951.
(I) [I950] S.C.R. 6o5.
(•) (1950] S.C.R. 594.
(3) [ 1950] S.C.R. 88.
(4) [1951] S.C.R. 167.
S.c.R.
SUPREME COURT REPORTS
453
Applications
under
Art. 32 of the
Constitution
praying for the issue of writs in the nature of habeas
Corpus.
Hardaylll Hardy
for the
petitioners in Petitions
Nos. 21 and 22.
Gopal Singh for the petitioner in Petition No. 44.
• S. M. Sikri for the respondents.
1951.
April. 6.
The following judgments were
delivered.
PATANJALI
SAsTRl J.-These three
petitions have
been presented to this Court under article 32 of the
Constitution of
India praying for the issue of writs in
the nature of habeas corpus
for
release
of the petitioners who are
respectively
the
President,
VicePresident and Secretary of the Hindu Mahasabha of
the Delhi State.
The petitioners were arrested on 22nd
August, 1950,
by order of the District Magistrate, Delhi, made under
sub.section
(2) read with clause (a)
sub.clause (i) of
sub.section (1) of section 3 of the Preventive Detention Act, 1950 (hereinafter referred to as the Act). The
order ran as ·follows :
"Whereas I, Rameshwar Dayal, District Magistrate,
Delhi, am satisfied that with
a view to the maintenance of public order in Delhi it is necessary to do
so, I, Rameshwar
Dayal, District
Magistrate, Delhi,
hereby order the detention of. . . . . . . . . . . . . . under sub-section (2) of section 3 (1) (a) (ii) of the Preventive Detention Act. Given under my seal and signature".
The grounds of detention communicated
to the
petitioners were in
identical terms,
save as · to the
-dates on which the speeches were said to have been
made, and read thus :
"In pursuance of section 7 of the Preventive Detention Act you are hereby informed that the grounds on
which the detention order dated 22nd
August, 1950,
has
been made against you arc that your speeches
generally
in the past and particularly on .... August,
1951
R.,,, SinJ;h
and 01htrs
v.
Tiu S1au of
Delhi and
Anolhtr.
Palanjali
Saslri].
1951
Ram s;nth
and Others
v.
The State of
Delhi and
Atwth,r.
Pata!Jjali
Sostri J.
454
SUPREME COURT REPORTS
[1951]
1950, at public meetings in Delhi 'has been such as to
excite disaffection
between
Hindus and Muslims and
thereby prejudice the maintenance of public order in
Delhi and that in order to prevent you from making
such speeches it is necessary to make the said order".
The petitioners applied to the High Court at Simla
for similar relief under article 226 of the
Constitutiop,
but the petitions were dismissed. It appears to have
been contended before the learned Judges (Khosla and
Falshaw JJ.) who heard those petitions that although
this Court held in A. K. Gopalan v. The State of
Madras (') chat the provisions of section 3 of the Act
were constitutional and valid, detention under chat
section was ultra vires and illegal
where, as here, it
was based on the ground of making speeches prejudicial to the security of the Seate or the maintenance
of public order. This was said to be the result of the
later pronouncements of this Court in
Brij Bhushan
and
Another v. The State of Delhi ( 1) and Ramesh
Thappar v. The State of Madras (•). This contention
was rejected on the ground that no such proviso could
be read into section 3 on the strength of the later
decisions referred co above which related to a different
point, viz. the scope of authorised restrictions
on the
right to freedom of speech conferred by article 19 (1).
Falshaw J. (with whom Khosla J. concurred), proceeded, however, to draw attention to what he conceived
to be an "anomaly" -while a State
Government should
not be allowed co interfere with the freedom of the
press by way of stopping the circulation
of newspapers
or by pre-censorship of news, the
Government shoul<l,
for the same object, be entitled to place a person under
preventive detention which is "even greater restriction
on personal liberty than
any restriction
on a newspaper ever could be".
This
distinction
appeared to
the learned
Judge to be illogical, and he thought that
there was "an apparent conflict" between the decisions
of this Court in Go pal an' s case ( 1 ) and the other cases,
which could
only
be resolved
by this
Court. "k
(1) [1950] S. C.R. 88.
(1) (1950] S. C.R. 594·
(1) (1950] S. C.R. 605.
S.C.R.
SUPREME COURT REPORTS
455
would be well" the
learned Judge concluded "if the
point were raised in this form at an early date in the
Supreme Court".
No wonder
that,
after this
encouragement, the
petitioners have
preferred these petitions raising the .
same contention before us. On
behalf
of the petitioners Mr. Hardy submitted that the provisions of the
Act should not be used to prevent a citizen· from
making speeches though they might be considered to
be prejudicial to the maintenance of public order, for
maintenance of public
order is not
a purpose for
which imposition of a restriction on freedom of speech
is authorised by
the
Constitution, as held by this
Court in the Cross-Roads( 1 ) and the Organizer(•) cases.
It is true that in those cases this
Court decided
by a
majority of 5 to 1 that "unless a· law restricting freedom of speech and expression is directed solely against
the undermining of the security of the State or the
overthrow of it such law cannot fall within the reservation of clause (2) of article
19 although the restrictions
which it seeks to
impose may have
been conceived
generally in the interests of public order". But it will
he noticed that the statutory provisions which
were
there declared void and unconstitutional. authorised the
imposition, in the one case, of a ban on the circulation
of a newspaper and, in the other, of pre-censorship on
the
publication of a journal.
No question arose of
depriving
any
person of
his
personal
liberty
by
detaining him
in
custody,
whereas
here,
as
in
Gopalan's case (' }, the
Court is called upon to adjudge
the legality of the detention of the petitioners with a
view to prevent them from making speeches prejudicial
to the
maintenance of public order.
Although
personal liberty has a content sufficiently
comprehensive to include the freedoms enumerated in article 19
(1), and its deprivation would result in the extinction
of those freedoms, the
Constitution has treated these
civil liberties as distinct fundamental rights and made
separate provisions in article 19 and articles 21 and 22
as to the limitations and conditions subject to which
<:l fl950] S.C.R. 594.
(') [1950] S C.R. 88.
( .J [I 950] S. C.R. 605.
•
1951
Ram Sititlr
altd Othns
v.
TMStat•q/
D•lhi Md
AINl!w.
Palanjali
Sastri ].
19!tl
llam Sin1A
and Other1
v.
T/1' Stah ef
Delhi and
.Anothtr.
Patanja/i
.Sostri ].
(l
4%
SUPREME COURT REPORTS
[1951]
alone they could be taken away or abridged. The
interpretation. of these articles
and their correlation
were elaborately
dealt wich
by the full
Court in
Gopalan's case('). The question arose whether section
3 of the Act was
a law imposing restrictions on "the
right to. move freely
throughout the territory of
India" guaranteed under article 19 (1) (d)
and, as
such, was liable to be tested wl1h reference to its ·
reasonableness under clause (5) of that article.
It was
decided by a majority of 5 to 1 that a law which authc>-
rises deprivation of personal liberty did not fall within
the purview of article
19 and its validity was not to
be judged by the criteria indicated in that article but
depended on. its compliance with the requirements of
articles
21 and 22, and
as section 3 satifised those
requirements, it
was constitutional.
If the
learned
Judges in the High Court had paid close attention to
the Judgments delivered in this 'Court, they would have
found that there was nothing illogical in that view and
no conflict between the decisions in that case and in
the other cases to which reference has bee~ made. The
observations of the Chief Justice in
Gopalan's case( 1)
make the position quite clear :
"As the preventive detention order results in· the
detention 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 spe~ch as a!Jd 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 argument 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
abridgement 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
(') [1950] S.C.R. Jl!I.
S.C.R.
SUPREME COURT REPORTS
457
ordinary assault, will be illegal. Unless such conc;lusion
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 preconceived notions. So read, it clearly means that the
legislatio~ to be examined must be directly in respect
of one of the rights mentioned in the sub-clauses. 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- legislation 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
sub-clauses is
abridged, the question of the application of article 19
does not arise. The true approach is only to consider
the directness of the legislation and not what will be
the result of the detention otherwise valid, on the mode
of the <letenu's life. On
that short
ground, in my
opinion, this argument about the infringement of the
rights mentioned in article - 19 (1) generally must fail.
Any other construction put on the article, it seems to
me, will be unreasonabka" (1 )
Similar conclusions expressed by the other
learned
Judges will be found at pages 194, 229, 256 arid 305. It
follows that the petitions now before us are governed by
the decision in Gopalan' s case ( 1 ), notwithstanding that
the petitioner's right under article 19 (1) (a) is abridged
as a result of their
detention under the
Act. The
anomaly, if anomaly there be in the resulting position,
is inherent in the structure and language of the relevant articles, whose meaning and effect as expounded
by this
Court by an overwhelming majority in the
cases referred to above must now be taken to be settled
law, and courts in this country will be
serving no
useful purpose by discovering supposed conflicts and
illogicalities
and recommending
parties to re-agitate
the points thus settled.
( 1) [1950] S.C.R. 88, 100-101.
1951
Ram Sirl&/t,
and Otlier1
v.
The Stale of
Delhi and
..4.~ot/rn.
Patanjali
Sastri J~
1951
R.m Si11gh
.mu! Olhm
...
The Stal• qf
D•lhi and
.Anolfwr.
Pa1anjali
Sastri J.
458
SUPREME COURT REPORTS
[1951}
Mr. Hardy next contended that, in view of the recent
decision of this Court in The State of Bombay v. Atma
Ram Sridhar Vaidya (1 ), the grounds of detention communicated to each of the petitioners must be held to be
too vague and indefinite to enable them to make their
"representations" to the
Chief
Commissioner,
Delhi,
and the requirements of clause (5) of article 22 not
having thus been complied
with, the petitioners were
entitled to be set at liberty. According to Mr. Hardy
it was not sufficient that the time and place of the
alleged speeches and their general effect
were indicated,
but it was also necessary that the
offending passages
or at least the gist of them should be commuaicated
in order to enable
the petitioners to make effective
representations.
In the case relied on, this Court, no doubt, held by
a majority that, though the first part of article 22 (5),
which casts an obligation on the detaining authority to
communicate the grounds of the order of detention,
would be sufficiently complied with if the "deductions or
conclusions of facts from facts" on which the order was
based were disclosed, the
latter part of the clause,
which confers on the person detained the right of making
a "representation" against the order, imposed, by necessary implication, a duty on the · authority to furnish the
person with further particulars to enable him to make
his representation. It was further held that the suffidency of this "second communication" of
particulars
was a justiciable issue, the test being whether "it is
sufficient to enable the detained person to
make a
representation which, on being considered, may give
relief to the detained person." While
the communication of particulars
should,
subject to a claim of
privilege under clause (6), be "as full and adequate as
·the circumstances permit", it did not, however, follow
from clause ( 6) that ''what is not stated or considered
to be withheld on that ground must be disclosed and
if not disclosed there is a breach of a fundamental
right. A wide latitude is left to the authorities in the
matter of disclosure."
Referring to the use of the term
(1) [1951] S.C.R. 167.
S.C.R.
SUPREME COURT REPORTS
459
'Vague" in this connection, it · was remarked "If on
reading the ground furnished it is capable of being
intelligently understood and is sufficiently
definite to
furnish materials to
enable the detained
person to
make a representation against the order of detention,
it cannot be called vague".
This decision docs not, in our opinion, support the
broad proposition· contended for by Mr. Hardy that
wherever an order of detention is based upon speeches
made by the person sought to be detained, the detaining
authority should communicate to the person the offendin3 passages or at least the gist of such passages on
pain of having the order quashed if it did not. In the
cases now before us the time and place at which the
speeches were alleged to have been made were specified
and their general nature and effect (being such as to
excite disaffection between Hindus and Muslims) was
also stated. It is difficult to see how the communication of particular passages
or their substance-one of
the petitioners denied having made any speech on the
day specified-was necessary in addition to the
particulars already given, to enable the petitioners to make
their representations. It should be remembered in this
.connection that the
Court is not called upon in this
class of cases to judge whether or not the speech or
speeches
in question
constituted a prejudicial
act
falling within the purview of section 3 of the Act as
it is called upon in prosecutions for offences under
section
124A or section 153A of the
Indian
Penal
· Code to find whether the speech attributed
to the
accused person
constituted an offence
under
those
sections. That is a matter for the detaining authority
to be . satisfied about. Nor do these cases belong to the
category where a reference had to be made to the Advisory Board under the
Act, so that any attempt by the
petitioners to rebut the inference drawn by the detaining
authority from their speeches had to be. made only rn;.
fore the
executive
authorities.
In such circumstances
the suggestion that without the communication of the
offending passages
or . their substance the
petitioners
were not in a position to make their representations
1951
Rt1tn Sinp
mu/ Othns
v.
Tl# Stolt of
Dllhi ad
.4notltn.
Pa14rifoli
Saitti J
1951
Ram Sin&h
and Others
Y.
The Sta11 of
De/m and
Anot.ln
Potatliali
Sallri].
460
SUPREME COURT REPORTS
[19511
to the
executive
authorities
sounds
unreal and is.
devoid of substance. It may be possible to conceive
of peculiar situations where perhaps the person detained
on ground of prejudicial speeches might be in a better
position to make a representation if he was given the
objectionable passages or the gist of them, but the
p~esent cases are not of such peculiar character. On
the other hand, cases have come before this Coun
where speeches were alleged to have been made after
. midnight at secret gatherings of Kisans and workers
inciting them to violence,
crime and disorder. Such
allegations could only be based in most cases on information
received by the
executive
authorities from
confidential sources and it would not be practicable in
all such cases to have a record made of the speeches
delivered. To hold that article
22 (5) requires that,
wherever detention is grounded
on alleged prejudicial
speeches, the
detaining authority
Should indicate to
the person detained the passages which it regards as
objectionable would rob the provisions of the Act of
much of their usefulness in the
very
class of
cases
where those
provmons
were
doubtless
primarily
intended to be used and where their
use would be
most legitimate.
In the
case
of
these
petitioners,
no doubt, the speeches are said to have been made at
public meetings, and it is not suggested on behalf
of the respondents, that no record was made of the
speeches, so that the details asked for could have been
furnished. The
omission to do 50, for
which no
reason is disclosed in these proeecdings,
is regrettable, as it has given rise to avoidable grievance and
complaint. The authorities who feel impelled in discharge of their duty to issue orders of detention will do
well to bear in mind the following remarks of the Chief
Justice in the case referred to above :
"In numerous cases that have been brought to our
notice, we have found that there has
been quite an
unnecessary obscurity on the
pan of
the detaining
authority in stating the grounds for the order. Instead
of giving the information with reasonable details, there
is a deliberate attempt to use the minimum number
S.C.R.
SUPREME COURT REPORTS
461
Of words in the communication conveying the grounds
of detention. In our opinion, this attitude
is quite
deplorable".
This, however, does not affect our conclusion in these
cases that the grounds communicated to the 'petitioners
contain sufficient particulars to enable them
to make
their representations to the authority
concerned, and
that the requirements of article 22 (5) have thus been
complied with.
It is. also urged that the orders of detention were
bad because they did not
specify the period during
which the petitioners were to be under detention. Thi1
point is now concluded against the petitioners by the
decision of this Court in Ujager Singh v. The State of
Punjab ( 1 ) and /agjit Singh v. The State of Punjab ( 1 )
where it was pointed out that as section 12 of the Act
itself prescribed a maximum period of one year for
detention thereunder, such orders could not be said to
be of indefinite ·duration and unlawful on that ground.
Lastly, it was said that the petitioners were prominent members of a political organisation which was
opposed to the ideals and
policies of the party in
power, and that the orders of detention were made:
"for the collateral purpose of stifling effective political
opposition and legitimate criticism of the policies pursued by the Congress Party and had nothing to do
with the maintenance of public order". Allegations: ·
of ma/a fide conduct arc easy to make but not always.
as easy to prove. The District
Magistrate has, in hi&.
affidavit filed in these proceedings, stated that, from
the materials placed before him by persons experienced
in investigating matters of this kind, he
was satisfied
that it was necessary to detain the petitioners with a
view to preventing them from acting in a manner prejudicial to the maintenance of public order, and he haS;
emphatically repudiated
the
purpose
and
motive
imputed to him. We have thus allegations on the one
side and denial on the other, and the petitioners made
no attempt to discharge the burden, which
undoubtedlv
lay upon them, to prove that the
District
(r) Petition No r 19 or l950
(~) Petition No. r67of1950.
M5SCI
62 S, C. India/59.
1951
Ram Sint
and Others
'If.
Thi Stale of
D1llii and
AllDlher.
Patanjali.
Sastti J.
1951
Ram Sin.fill
and Othm
v.
Thi State OJ ..
Delhi and
Another.
Mahajan],
462
SUPREME COURT REPORTS
[1951]
Magistrate acted ma/a
fidt: in issuing the orders of
detention.
The petitions are dismissed.
MAHAJAN J.-These three petitions
under article 32
of the Constitution of
India were presented
by Prof.
Ram Singh, Bal Raj Khanna and
Ram Nath
Kalia,
all three of whom were arrested and placed in detention on the 22nd
August, 1950, under the orders of the
District Magistrate of
Delhi,
under
the
Preventive
Detention Act, 1950.
The petitioners are
resp~ctively.
the President, Vice-President and the
Secretary of the
Delhi State Hindu Mahasabha.
The grounds of detention
supplied
to them are almost identical. Those
furnished to Prof. Ram Singh read as follows :-
"In pursuance of
section 7 of the Preventive
Detention
Act, you
are
hereby informed that the
grounds on which the detention order dated August
22, 1950, has been made against you • are that your
speeches generally in the past and particularly on the
13th and 15th August, 1950, at public
meetings in
Delhi have been such as to excite disa.ffection between
Hindus and Muslims and thereby prejudice the maintenance of public order in
Delhi and that
in order to
prevent you from making such speeches it is necessary
to make the said order.
You arc further informed that you are entitled to
make a representation
against your detention
to the
State Government, that is, the
Chief Commissioner,
Delhi."
The grounds supplied to the other two petitioners
were the same except
that in the case of
Bal
Raj
Xhanna only the 15th · August, 1950, is metioned as
·the date on which the public speech was
made, and
·in the case of the third petitioner, it is only the
13th
>
August, 1950.
Mr. Hardy on behalf of the
pet1aoners inter alia
-urged that the grounds served on the petitioners as
justifying the orders of detention are quite indefinite
and are not sufficient to enable them to make an effective representation to the
State
Government against
S.C.R.
SUPREME COURT REPORTS
463
their detention and that being so, their detention is
illegal.
An affidavit of the District
Magistrate was placed
before us at the hearing of the cases stating that he
was satisfied that the petitioners' speeches
generally,
and particularly those
made
on the
13th and 15th
August, 1950, at public meetings in Delhi had been
such as to excite
disaffection
between
Hindus
and
Muslims.
No particulars of the
oe:ending
words or
passages or any indication of the nature of the language
employed by the petitioners was mentioned either in
the grounds or in this affidavit.
Reference was
made
to two speeches of the 13th and 15th in the
case of
the first petitioner and to only one speech delivered on
the Bth and 15th respectively by the other two. So
far as the earlier speeches are concerned, it is not even
stated on what occasions, on what dates and during
what years
were those
speeches made
or delivered.
After a reference to the dates of the two speeches, the
conclusion drawn ·by the
District Magistrate
has been
mentioned. The question for decision is whether
what
is stated in the grounds is sufficient material on the
basis of which the fundamental right conferred on the
petitioners by article 22 (5) of the
Constitution can be
adequately
exercised and
whether without knowing
the substance of the offending passages in the speeches
from which the
inference
has
been drawn
by
the
District
Magistrate it is possible
to
prove
that this
inference is not justified.
After considerable thought
I have reached the deci- .
sion that these cases fall within the ambit of the decision of this Court in The State of Bombay v. Atma Ram,
Shriahar
Vaidya ( 1 ). In that case certain general
principles applicable to cases of this nature were stated
by the learned
Chief
Justice, who delivered the majority judgment, in the following terms :
(1) That ·if the
representation has
to
be intelligible to meet the
charges contained in the grounds,
the information conveyed to the detained person must
(1) [195l]S. C.R. 167.
1951
Ram Singh
and Others
v.
The Stauqf
Delhi and
Another.
Mahajan].
1951
Ram Singh
and Other.,
v.
Till Sta11 of
Delhi and
Anotht<.
MaJuij .. ].
464
SUPREME COURT REPORTS
[1951]
be suflicicnt to attain
that
object. Without get~ng
information suflicient to make a representation against
the order of detention it is not possible for the
man
to make the representation. Indeed, the right will be
only illusory but not a real right at all.
(2) That while there is a connection between thccobligation on the
pllrt of the detaining authority to
furnish grounds and the right given to the detained
person
to have an earliest opportunity
to make thccrepresentation, the test to be applied in respect of the
contents of the grounds for the two purposes is quite
different. For the first, the test is whether it is· sufficient to satisfy the authority. For the second,
the test
is, whether it is sufficient to enable the detained person
to make the representation at the earliest opportunity.
On an infringement of either
of these two rights the
detained person has a right to approach the court and
to complain that there has been an
infringement of a
fundamental right and even if the
infringement of the
second part of the right under
article 22(5) is established he is bound to be released by the court1
(3) That it cannot be disouted that the representation mentioned in the second
part of article 22(5)
must be one which on being considered
may give relief
to the detaining person. It was pointed out that in
the numerous cases that had been brought to the notice
of the court it was found that there had been quite
an unnecessary obscurity on the part of the detaining
authority in stating the grounds for the
order, and
that instead of giving the information
with reasonable
details, there is a deliberate attempt
to use the minimum number of words in the communication convevin~
the grounds of detention and that such an attitude
was quite deplorable.
In my opinion, these observations have an apposite
application to the grounds
furnished to the petitioners
in the present
cases. The speeches
alleged
to have
been made hy the
petitioners were made
in
public
meetings and could not be described as of a confidential nature and no privilege in respect of them was
s.c.R.
SUPREME COURT REPORTS
465
claimed under article 22 ( 6) of the Constitution. That
being, so the material on the basis of which the District
Magistrate drew the inference that these speeches
. would cause or were likely to ca.use disaffection amongst
Hindus and
Muslims should have
been communicated
to the petitioners so that they may be able to make a
representation, which on being
considered
may give
relief to them.
For ·that purpose
either the
words
used by them or the substance of the speeches should
have been ·communicated· to the detenus · so that they
may be able
to prove that such
words
or passages
never formed part of the speeches and
have
been introduced in them as a result of some error or that no
reasonable person could draw an inference
from them
that those
were likely . to cause hatred
and enmity
between the two communities. The sufficiency
of the
material supplied is a
justiciable
issue,
though . the
sufficiency of the grounds on which the detaining
authority made up his mind is not a justiciable
issue.
In my opinion, in the absence of any indication in the
grounds as to the nature of the words used by the
detenus in their speeches from which an inference has
been drawn against them they would not be able fully
to exercise their fundamental
right
of making a representation and would not be able to furnish
a proper
defence to the charge made against them.
Envisaging oneself in the position of a person asked
to draw out a '!ritten representation on
behalf of the
detenus on the materials supplied to them, the effort
could not proceed beyond a bare denial of the speeches
having been made, or a bald statement that no words
were used which could
possibly
excite disaffection between
Hindus and
Muslims.
Such a
representation
would be an idle formality
inasmuch as mere denials
without any cogent arguments to support them
would
convince nobody. Without a knowledge of the offending words or passages, or their substance, it is
not
possible to argue that the inference drawn is not a
legitimate one
or to allege that the
words Used fall
within the ambit of legitimate
criticism permissible in
law and cannot be considered to excite disaffection
1951
Ram Singh
and OtMrs
v •
Thi Stat• of
Delhi and
.Anotlrer.
Mahajan].
1951
Ram Singh
arrd Others
v.
The State of
Delhi and
Another.
Mahajan].
SUPREME COURT REPORTS
[1951]
amongst Hindus and Muslims.
The phraseology employed by the detaining authority in the charge sheet
supplied to the detenus seems to have been borrowed
from the language used in sections 124A and 153A of
the Indian Penal Code.
Judicial literature abounds in
cases where words and passages
likely to cause disaffection between
Hindus and Muslims or which have
that effect have been considered and discussed.
If the
words objected to were known, the representation on
behalf of the detenus
~ould easily have been drawn up
with the help of judicial precedents and reasoning considered good in those cases. Again, without knowing
the substance of the offending words
from which the
inference has been drawn by the
detaining authority
it is not even possible to urge that these words were
merely a quotation from some known author
or that
the words used fall within legitimate
religious propaganda permitted by article 25 of the
Constitution
or
concern the propagation
of
some
political
creed to
which no objection
could
be taken.
As regards
the
two speeches alleged to have been given by the detenus,
if the allegation that they were such as to excite disaffection between
Hindus and
Muslims is correct, the
detenus were guilty of the
offence under section 153A
of the Indian Penal Code and could not only have been
punished for the offence under that section but could
also have been kept out of harm's way for the
future
by that procedure. A charge sheet under that section
or in a trial under section 124A which uses
analogous
language would have been defective if it did
not mention the substance of the speeches alleged to have been
made by the person
charged. [Vide
Chint Ram v.
Emperor (1 ) ; Chidambaram
Pillai v. Emperor (•) ·
Mylapore Krishnaswami v. Emperor (").]
In some of
these cases the charge was in substance similar to the
charge here. If a charge in an open trial for an offence
under these
sections
is defective
without
the
substance of the words used or the
passages being
cited
· therein, a fortiori the material supplied
in a preventive
(1) A.I.R. 1931 Lah. 186.
(3) I.LR. 32 Mad, 384.
(2) I.L.R. 32 Mad. 3.
S.C.R.
SUPREME COURT REPORTS
detention case on ·a similar charge should be regarded
as insufficient when a man has not even a right · of being heard in person and has merely to defend himself
by means of a written
representation. It has to be
remembered in this connection that the
phrase "excite
disaffection amongst
Hindus ·and Muslims" ·is
of a
very general nature and an inference of this
kind may
easily have been drawn on material which
would
not
warrant such an inference. No reason
whatsoever has
been stated in the affidavit of the
District
Magistrate
for not disclosing the words used by the detenus even
after this length of time and from which he drew the
conclusions on the basis of which he has kept the petitioners
under detention for a period well
over six
months or more.
For the reasons given above I venture to dissent
from the opinion of the majority
of the
Court with
great respect and hold that the detention orders above
mentioned are illegal.
I accordingly order
the release
of the
petitioners. On the other points argued in the
case I agree with judgment of Sastri J.
BosE J.-1 agree with my brother
Mahajan whose
judgment I have had the advantage
of reading, and
with the utmost respect find myself
unable to accept
the majority view. I am of opinion that these
petitio'lers should all be released on the ground that their
detentions are illegal.
I do not doubt the right of Parliament and of the
executive to place restrictions upon a man's freedom.
I fully agree that the fundamental rights conferred bv
the
Constitution are not absolute.
They are limited.
In some cases the limitations are imposed by the
Constitution itself.
In others, Parliament
has been given
the power to impose further restrictions and in doing
so to confer authority on the executive to carry its purpose into effect.
But in every
case it is the right>
which are fundamental, not the limitations ; and it is
the duty of this Court and of all courts in the land to
guard and
defend
these
rights jealously.
It is our
duty and
privilege to see that rights
which were
1951
Ram Singh
arrd Others
"·
The Staie of
Delhi and
AMther.
Mahajan].
1~51
Ram Singh
ana Others
v.
TMStaitf
.Delhi an
Anothn.
1JoseJ.
468
SUPREME COURT REPORTS
[19511
intended to be fundamental are kept fundamental and
to see that neither Parliament nor the executive exceed
the bounds within which they are confined by the
Constitution when
given the power to impose a restricted
set of fetters on these freedoms ; and in the case of the
executive, to see further that it does not travel beyond
the powers conferred by
Parliament.
We are here to
preserve intact for
the peoples of
India the freedoms
which have now been guaranteed to them and
which
they have learned through the years to cherish, to the
very fullest extent of the· guarantee, and to
ensure that
they are not whittled away or brought to nought either
by
Parliamentary legislation or by executive action •
. It is the right to personal freedom which is affected
here : what the
Constitution calls the "right to move
freely throughout the territory of India."
Now I do
not for a moment
deny the right of
Parliament to
place limitations upon that right and to do it by preventive detention.
Much as all freedom loving persons
abhor the thought of locking men and women up without trial and keeping them behind bars indefinitely,
the regrettable necessity to do so is to my mind undoubted. The safety of the
State, which is paramount, requires it and, in any event, the
Constitution
allows
it but-and this is important-subject to limitations.
So far as the
Constitution is concerned, it has given
Parliament the powers to legislate on this subject by
article 246 read with item 9 of List I of the 7th Schedule and item 3 in
List III, and I have no doubt that
the legislation
sought to be impugned here is intra
vires. But I am unable to hold
that
the
executive
action . taken in these cases on the strength of that
legislation is within
the law. The executive
has no
power to detain except within the
four corners of the
Constitution and the
Act
now
challenged.
In my
opinion, it has not kept itself within those limits.
The provisions of the
Constitution relevant
to the
present purpose have been examined by this
Court in
previous cases and I have neither the right
nor the
desire to go behind them.
My brother
Mahajan has
S.C.R.
SUPREME COURT REPORTS
469
set out his view of the law
which
these
cases ltave
settled. I respectfully agree with him and
will not
cover the same ground. But I do wish to say this; I
am not prepared to place any narrow or stilted construction either upon the
Constitution
or upon the
decisions of this Court which have so far interpreted
it.