# DURGADAS SHIRALI v. UNION OF INDIA AND OTIIERS

- **Citation:** [1966] 2 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 1965-11-12
- **Case number:** Writ Petition No. 95 of 1965
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/durgadas-shirali-v-union-of-india-and-otiiers-3715
- **Pages:** 6

## Headnote

A
B
c
D
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G
[P.
DURGADAS SHIRALI
v.
UNION OF INDIA AND OTIIERS
November 12, 1965
B.
GAJENDRAGADKAR,
C.J., K.
N.
M. HIDAYATULLAH,
V.
RAMASWAMI
P. SATYANARAYANA RAJU, JJ.]
WANCHOO,
AND
573
Defence of India Rules, 1962, rule 30---Detention under-Membership
of a political party not declared illegal whether relevant consideration for
ordering detention.
The petitioner was detained under rule 30 of the Defence of India
Rules 1962, by an order of the District Magistrate and the necessary formalities were gone through. He filed a petition under Art. 32 and contended :
(1) The order of the District Magistrate was mala fide as he had not applied
his mind to the specific activities of the petitioner and there was complete
absence of material before him to suggest that the conduct of the petitioner
would be prejudicial to the defence of India etc.
(2) One of the grounds
of detention mentioned in the order ·.vas that the petitioner was a member
of the Leftist Communist Party of India and Secretary of one of its branches. This consideration was not relevant as the said party had not been
declared illegal or banned by the Government.
HELD: (i) It was open to the petitioner to challenge his detention on
the ground of ma/a fide or on the ground that all or any of the grounds
mentioned in the order of detention were irrelevant. Such pleas were not
covered by Art. 358 and were outside the purview of the · Presidential
Orders under Art. 359(1). [576 DJ
Makhan Singh Tarsikka v. State of Punjab, [1964] S.C.R. 797 referred
to.
(ii) Taking into account the affidavit filed by the District Magistrate it
could not be said that he did not apply his mind to the specific activitieo of
the petitioner or that '111ere was no material before him to
jugtify the
order. [577 CJ
(iii) It was not correct to State that the activities of the Leftist wing
of the Communist Party cannot in any circumstances be illegal and would
necessarily be irrelevant merely because the Government of India has not
declared the Party illegal or imposed a ban.
In the light of the reports
received by the District Magistrate the political association of the petitioner
and his membership of a particular political group was a relevant consideration in the matter of detention of the petitioner. This ground had close
and proximate connection with the security of State and maintenance of
public order as contemplated by rule 30 of the Defence of India Rules. [578
A-C]
ORIGINAL JURISDICTION: Writ Petition No. 95 of 1965.
Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights.
R. K. Garg, M. K. Ramamurthl, S. C. Agarwal and D. P.
H
Singh, for the petitioner.
G. S. Kas/iwal, Advocate-General, Rajasthan and R. N. Sachthey, for respondent no. 2.
574
SUPREME COURT REPORTS
[1966] 2 S.C.R.

## Text

A
B
c
D
E
F
G
[P.
DURGADAS SHIRALI
v.
UNION OF INDIA AND OTIIERS
November 12, 1965
B.
GAJENDRAGADKAR,
C.J., K.
N.
M. HIDAYATULLAH,
V.
RAMASWAMI
P. SATYANARAYANA RAJU, JJ.]
WANCHOO,
AND
573
Defence of India Rules, 1962, rule 30---Detention under-Membership
of a political party not declared illegal whether relevant consideration for
ordering detention.
The petitioner was detained under rule 30 of the Defence of India
Rules 1962, by an order of the District Magistrate and the necessary formalities were gone through. He filed a petition under Art. 32 and contended :
(1) The order of the District Magistrate was mala fide as he had not applied
his mind to the specific activities of the petitioner and there was complete
absence of material before him to suggest that the conduct of the petitioner
would be prejudicial to the defence of India etc.
(2) One of the grounds
of detention mentioned in the order ·.vas that the petitioner was a member
of the Leftist Communist Party of India and Secretary of one of its branches. This consideration was not relevant as the said party had not been
declared illegal or banned by the Government.
HELD: (i) It was open to the petitioner to challenge his detention on
the ground of ma/a fide or on the ground that all or any of the grounds
mentioned in the order of detention were irrelevant. Such pleas were not
covered by Art. 358 and were outside the purview of the · Presidential
Orders under Art. 359(1). [576 DJ
Makhan Singh Tarsikka v. State of Punjab, [1964] S.C.R. 797 referred
to.
(ii) Taking into account the affidavit filed by the District Magistrate it
could not be said that he did not apply his mind to the specific activitieo of
the petitioner or that '111ere was no material before him to
jugtify the
order. [577 CJ
(iii) It was not correct to State that the activities of the Leftist wing
of the Communist Party cannot in any circumstances be illegal and would
necessarily be irrelevant merely because the Government of India has not
declared the Party illegal or imposed a ban.
In the light of the reports
received by the District Magistrate the political association of the petitioner
and his membership of a particular political group was a relevant consideration in the matter of detention of the petitioner. This ground had close
and proximate connection with the security of State and maintenance of
public order as contemplated by rule 30 of the Defence of India Rules. [578
A-C]
ORIGINAL JURISDICTION: Writ Petition No. 95 of 1965.
Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights.
R. K. Garg, M. K. Ramamurthl, S. C. Agarwal and D. P.
H
Singh, for the petitioner.
G. S. Kas/iwal, Advocate-General, Rajasthan and R. N. Sachthey, for respondent no. 2.
574
SUPREME COURT REPORTS
[1966] 2 S.C.R.
The Judgment of the Court was delivered by
Ramaswami, J, In this case the petitioner-Durgadas Shirali
has obtained a rule calling upon the respondents to show cause
why a writ of habeas corpus should not be issued under Art. 32
A
of the Constitution directing his release from detention under an
order passed by the District Magistrate of Bhilwara, Rajasthan B
under Rule 30( 1 )(b) of the Defence of India Rules. Cause has
been shown by the Advocate-General of Rajasthan on behalf of
the respondents to whom notice of the rule was ordered to be
given.
The petitioner was arrested on January 2, 1965 at Jaipur in
pursuance of an order dated December 29, 1964 made by resC
pendent no. 3, Shri Narayan Das Mehta, District Magistrate of
Bhilwara which states as follows :
"It is reliably brought to my notice that the Leftist
wing of the Communist Party has been carrying on antinational and pro-Chinese propaganda and are preparing
to act as Peking's member.
The party having been
formed at Peking's behest are preparing for widespread
agitation with the object of establishing communist
regime by subversion and violence. I, therefore, come
to the irresistible conclusion that the Leftis~ Communist
Party constitutes a real danger to external and internal
security of the country and that it has become necessary
to take immediate action.
I am also satisfied from the report that Shri Durgadas Shirali of Bhilwara is the Secretary of the Leftist
Wing of the Communist Party and he is likely to act
in manner which is prejudicial to the Defence of India
and Civil Defence, India's relations with Foreign powers,
public safety and the maintenance of the public order.
I, Narayan Das Mehta, District Magistrate, Bhilwara
in exercise of the powers delegated to me under rule
30 ( 1) clause (b) of the Defence of India Rules 1962
vide Government of Rajasthan
Notification
No. F.
7/1(16)Home(A.Cr. I)63 dated the 4th November,
1963 and all other powers enabling in that behalf
direct the Superintendent of Police,
Bhilwara that
Shri Durga Das Shirali be arrested and detained in the
Bhilwara Jail until further orders."
·On January 13, 1965 the orders of the District Magistrate
was reviewed by the Reviewing Authority who recommended that
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DURGADAS v. UNION (Ramaswami, J.)
575
A the detention order dated December 29, 1964 should be confirm·
ed. · The State Government confirmed the detention order by its
order No. F7/1(19)Home(A-Cr. I)/65 dated January 22, 1965.
B
On behalf of the petitioner it was contended by Mr. Garg
th.at the District Magistrate had not applied his mind to the specific
activities of the petitioner and there w,is complete absence of
material before the District Magistrate to suggest that the conduct of the petitioner would be "prejudicial to the Defence of
ln!lia and Civil Defence, India's relations with foreign powers,
public safety and the maintenance of the public order". It was,
therefore, submitted on behalf of the appellant that the order of
c detention made by the District Magistrate was
ma/a fide
and
illegal.
Mr. Garg submitted, in the second place, that one of
the grounds mentioned in the order of detention was that the petitioner was a member of the Leftist Wing of the Communist Party
of India and Secretary of the local branch of that party at BhilD
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wara.
The Leftist Communist Party has been carrying on anti·
national and pro-Chinese propaganda and the District Magistrate
was of the opinion that the Leftist Communist Party, therefore,
constituted a real danger to external and internal security of the
country. It was submitted by Mr. Garg that the Leftist wing of
the Communist Party had not been declared illegal or banned by
the Government of India and the membership of the petitioner
of the Leftist Communist Party of India was, therefore, not a
relevant ground for the order of detention.
Before proceeding to deal with these points raised on behalf
of the petitioner it is necessary to state that in Makhan Singh
Tarsikka v. The State of Punjab(') this Court had occasion to
consider the legal effect of the proclamation of Emergency issued
by the President on October 26, 1962 and two orders of the
President--one dated November 3, 1962 and the other dated
November 11, 1962 issued in exercise of the powers conferred by
cl. ( 1) of Art. 359 of the Constitution.
It was held by this
Court that the sweep of Art. 359(1) and the Presidential Order
iss.11ed under it is wide enough to include all claims made by
citizens in any Court of competent jurisdiction when it is shown
that the said claims cannot be effectively adjudicated upon without
examining the question as to whether the citizen is, in substance,
~eeking to enforce fundamental rights under Arts. 14, 19, 21 and
22. It was pointed out that during the pendency of the Presiden·
tial Order the validity of the Ordinance or any rule or order made
tb~reunder cannot be questioned on the ground that it contravenes
'.(1)11964] 4 S.C.R. 797
576
SUPREME COURT REPORTS
(1966] 2 S.C.R·
Arts. 14, 21 and 22.
But this limitation cannot preclude . a
A
citizen from challenging
the validity of the Ordinance or any
rule or order made thereunder on any other ground. If the petitioner seeks to challenge the validity of the Ordinance, rule or
order made thereunder on any ground other than the contravention of Arts. 14, 21 and 22, the Presidential Order cannot come
into operation.
It is n<n also open to challenge the Ordinance,
B
rule or order made thereunder on the ground of contravention
of Art. 19, because as soon as a Proclamation of Emergency is
issued by the President under Art. 358 the provisions of Art. 19
are automatically suspended.
But a petitioner can challenge the
validity of the Ordinance, rule or order made thereunder on a
ground other than those covered by Art. 358, or the Presidential
C
Order issued under Art. 359(1). Such a challenge is outside
the purview of the Presidential Order.
For instance, a citizen
will not be deprived of his right to move an appropriate Court
for a writ of habeas corpus on the ground that his detention has
been ordered mala fide.
Similarly, it will be open to the citizen
to challenge the order of detention on the ground that any of the
D
grounds given in the order of detention is irrelevant and there
is no real and proximate connection between the ground given
and the object which the legisla~ure has in view.
It is contended, in the first place, on behalf of the petitioner,
that the order of detention is bad because the District Magistrate
E
had not applied his mind to the specific activities of the petitioner.
lt was pointed out that in the order of detention the District
Magistrate has mainly dealt with the activities of the Leftist Wing
of the Communist Party of India which was carrying on antinational and pro-Chinese propaganda.
The District Magistrate
proceeds to say that the party was formed at Peking's behest F
and was preparing for widespread agitation with the object of
establishing communist regime by subversion and violence. The
District Magistrate, therefore, reached the conclusion that the
Leftist Wing of the Communist Party constituted a real danger
to external and internal security of the country.
So far as the
petitioner is concerned, the District Magistrate has described him
G
as Secretary of the Leftist Wing ·of the Communist Party and has
proceeded to state that he was satisfied that the petitioner was
likely to act in a manner which was prejudicial to the Defence
of India and Civil Defence, India's relations with foreign powers,
public safety and the maintenance of the public order. In reply
to the petition of the detenu the District Magistrate, Bhilwara
has filed an affidavit in this Court. In paragraph 3 of the affidavit
the District Magistrate has stated that he was satisfied from the
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DURGADAS v. UNION (Ramaswami, !.)
577
/l reports that the petitioner was cail'}'ing on anti-national and proChinese propaganda as a member of the Leftist Wing of the Communist Party. In paragraph 5 the District Magistrate has stated
that he passed the order of detention after satisfying himself on
the reports that the petitioner was the Secretary of the Leftist
Wing of the Communist Party of India, Bhilwara branch and that
B he was likely to act in a manner prejudicial to Defence of India
ana Civil Defence, India's relations with foreign powers, public
safety and the maintenance of public order. In view of the affi·
davit of the District Magistrate it is not possible for us to accept
the argument of Mr. Garg that the District Magistrate did not
apply his mind to the specific activities of the petitioner and that
C he made the order of detention solely on the ground that the
Leftist wing of the Communist Party of India was carrying on
anti-national and pro-Chinese propaganda.
It was next argued on behalf of the petitioner that the Leftist
wing of the Communist Party of India has not been declared
D illegal by the Government of India and the party has not been
banned. It was submitted, therefore, that membership of that
party was not per se illegal and the order of detention of the
petitioner cannot be legally based upon tl)is ground.
In other
words, it was submitted by Mr. Garg that the ground that the
E petitioner was the Secretary of the Leftist Wing of the Communist
Party of India was irrelevan~ for the purpose of Rule 30 of the
Defence of India Rules. The argument was put forward that if
this ground was irrelevant for the purpose of the Rule or was
wholly illusory, the order of detention as a whole was vitiated and
must be quashed by grant of a writ of habeas corpus. In support
F of his argument Mr. Garg referred to the decision of this Court
in Shibban Lal Saksena v. The State of Uttar Pradesh('). We are
unable to accept the argument of Mr. Garg as correct It is not
correct to state that the activities of the Leftist wing of the Communist Party cannot in any circumstances be illegal and would
necessarily be irrelevant merely because the Government of India
G has not declared the party illegal or imposed a ban. In considering the question whether the petitioner was acting in a manner
prejudicial to the defence of India within the meaning of Rule 30
of the Defence of India Rules it is open to the District Magistrate
to take into account the reports which he had received as to the
political association of the petitioner, his political friends and his
H political loyalties.
In considering the circumstance that the
petitioner was a member of the Leftist wing of the Communist
(I) [19l4] S.C.R. 418.
578
SUPREME COURT
REPORTS
(l 966) 2 S.C.R.
Party of India which, according· to the said reports, was preparing
A
for a widespread agitation with the object of establishing communist regime by subversion and violence the District Magistrate
was not applying his mind to any irrelevant circumstance with
regard to the need for detention of the petitioner under
the
Defence of India Rules. In our opinion, in the light of the reports
received by. the District Magistrate the political association of
B
the petitioner and his membership of a particular political group
is a relevant consideration in the matter of detention of the petitioner.
This ground has close and proximate connection with the
security of State and maintenance of public order as contemplated
by Rule 30 of the Defence of India Rules.
In our opinion,
Mr. Garg is unable to make good his submission on this aspect
of the case.
For these reasons we hold that the petitioner has not made
out a case for the grant of a writ under Art. 32 of the Constitution.
The Writ Petition fails and is accordingly dismissed.
Petition dismiRed.
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