# F,AGU SHAW v. WEST BENGAL - **Citation:** [1974] 2 S.C.R. 832 - **Court:** Supreme Court of India - **Decided:** 1973-12-20 - **Case number:** Writ Petition Nos. 41, 106 etc. etc. of 1973 - **Bench:** A. N. Ray, K. K. M;Athew, Y. V. CHANDRACHlJD, A A. Alagir!Swami, P. N. Bhagwati - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f-agu-shaw-v-west-bengal-6199 - **Pages:** 35 ## Headnote B Constitution of India, 1950- Art. 22(4)(a)(b); (1)(a) ond (b)-Wheth0rlod of detention, namely. the expiry of the Defence of India Act, 1971 is dependina upon the requirement of the !)roclamation of emera:ency, the period fixed in Sec. 13 is not "the maximum period" as visualised by Art. 22(7)(b); ilnd (iii) that the Parliament ha1 abdicated its power and duty to fix the maximum period to the executive as the determination of the operation of the proclamation of emeraency is a matter within the discretion of the President and he is. therefore, the authority to deter- ·mine the retirement age of the Defence of India Act. HELD: (Per Ray C. J., Mathew and Chandrachud, JJ :) (I) Thero is no ··provision in the Constitution which either expreaslv or by necessary .implication. ·compeJS. Parliament to prescribe the maximum period of detention und~r Art. 22(7)(b). The proviso does not proprlo vlgort compel the Parliament ll>·&K·Cho c D E G H F,AGU SHAW v. WEST BENGAL 833 A n1aximum period. Nor does Art. 22(7) (b). On the other hand it expressly says otherwise. [841 BJ B c D E F G H The language of Art. 22(4) (b) is in marked contrast with th.i.t of Art. 22(4)a (a) read with the proviso. Art. ::!2(4)(b) makes it obligatory upon Parliament, if it wants to pass a law for detaining a person for a period of more than three moo.tbs, without making a provision in that Jaw for ob ## Text _Characters 0–39,931 of 115,120. This is a partial read: ask again with offset=39931 for what follows._ 832 F,.O.GU SHAW, ETC., E.TC. v: THE STATE OF WEST BENGAL December 20, 1973 [A. N. RAY, C.J., K. K. M;ATHEW, Y. V. CHANDRACHlJD, A A. ALAGIR!SWAMI AND P. N. BHAGWATI, JJ.J B Constitution of India, 1950- Art. 22(4)(a)(b); (1)(a) ond (b)-Wheth0rlod of detention, namely. the expiry of the Defence of India Act, 1971 is dependina upon the requirement of the !)roclamation of emera:ency, the period fixed in Sec. 13 is not "the maximum period" as visualised by Art. 22(7)(b); ilnd (iii) that the Parliament ha1 abdicated its power and duty to fix the maximum period to the executive as the determination of the operation of the proclamation of emeraency is a matter within the discretion of the President and he is. therefore, the authority to deter- ·mine the retirement age of the Defence of India Act. HELD: (Per Ray C. J., Mathew and Chandrachud, JJ :) (I) Thero is no ··provision in the Constitution which either expreaslv or by necessary .implication. ·compeJS. Parliament to prescribe the maximum period of detention und~r Art. 22(7)(b). The proviso does not proprlo vlgort compel the Parliament ll>·&K·Cho c D E G H F,AGU SHAW v. WEST BENGAL 833 A n1aximum period. Nor does Art. 22(7) (b). On the other hand it expressly says otherwise. [841 BJ B c D E F G H The language of Art. 22(4) (b) is in marked contrast with th.i.t of Art. 22(4)a (a) read with the proviso. Art. ::!2(4)(b) makes it obligatory upon Parliament, if it wants to pass a law for detaining a person for a period of more than three moo.tbs, without making a provision in that Jaw for obtaining the opinion of an Advisory Board. (841 DE] Under entry 3.of List Ill of the Seventh Schedule. both Parliameil-t and State Legislatures have plenary power t.o pass la\\'s for preventive detention as ·respects the subjects mentioned thtrein. A power to pass a law for detention carries with it the incidental power to provide for the period of such detention. Therefore, both Parliament and State Legislatures have power under ·the entry to provide for detention of a person for a specified period \Vithout fixing a specified period. The purpose of Art. 22(4}(a) is to put a curb on that power. What the proviso n1e:>.ns is that even if the Advisory Board has reported before.the expiration -of three months that there is sufficient cause ft;:ir detention, the period of detention,beyop.d thre-e months shall not exceed the maximum period that ·might be fixed by an-Y- - law made by Parliament under Art. 22(7}(b). The proYiso c--1nnot meJn that. even if Parliament does not pass a law fixing the maximum period undtr Art. 22(7} (b}, the State legislatures cannot pass a law which provides for detention of a person beyond three months. The period of such detention, viz., detention be· .- yond the period of three months, ·would then be a matter within the plenary po\ver of Parliament or State legislatures, as the case may be, as such a power is inciden·· tat to the power to pass a law with respect to the topics covered by entr:· 3 of List Ill. [839 H; 840 A-DJ Therefore, but, for th.e proviso to cl. (4)(a) of Art. 22, the Act as it provides for the opinion of the Advisory Board, can authorise detention of a persor, for a'ny period, by virtue of the plenary character of the legislative power con1:!rred by the entry. The proviso says in effect that if Parliament fixed the maximum period under Art. 22(7) (b}, the power of Parliament and State legislatures to fi.i: the period of detention in a law passed under the entry would be curtailed to that extent. (840 E-F] Gopalan v. The State of /t.fadras, [1950] S.C.R. 88, Krishnan v. The State .of Madras. [1951JS.C.R. 621 and State of West Bengal v. Ashok Dey and Otl1er:s, (1972] I S.C.C. 199, referred to. (2) (a) The meaning of the word 'maximum' is "thC highest attainable mag· nitude or quantity (of something); a superior limit," The meaning of the word 'period' is "a course or extent of time; time of duration." Therefore the words 'maximum period' mean the highest or the greatest course or extent or stretch Of time, which may be measured in terms of years, months or days as well tlS in terms of the occurrence of an event or the continuance of the_state of nffairs. [842 G] (b) It is not necessarY that the ParUament should have fixed a p~riod. in terms of years, months or days in order that it might be the "maxin1un1 period" for the purpose of Art. 22(7)(b). As the object of preventive· detention is to prevent persons from acting in a manner prejudicial to the maintenance of internal security or public order or supplies or services essential to the community or other objects specified by Entry 9 List I, the power to detain must be adequate in point of duration to achieve the object. If the maximum period can be fixed only in tern1s of years, months or days, certainly it would have been open to Parliament to fix a long period in s. 13 and justify it as ''the maximum period". [843 D-E] {3) It is not correct to say that the Parliament in fixing the duration of the maximum period of detention with reference to an event like the. cessation of the:.,.:. period of emergency, has in any way, abdicated its poWcr or function to fix th~·' maximum period or delegated it to the President. The:e can be no doubt th '".< it is Parliament that has fixed the maximum period ins. 13 of the Act. lt cann ~,, be presumed that the President will act unreasonably and continue the ProclamA~ ·· tion of l;mergency eyen after the Emergency has ceased to exist. Seeing that the maximum period of deienlion has been fixed by s. 13 and that the discretion to fix the period of detention in a particular case has to be exercised afterti!ing 834 SUPREME ·COURT REPORTS [1974] 2 S.C.R. into account a number of imponderable circumstances three is no substance in the araument that the power of Oover:unent to determine the period of detention is discretionary or arbitrary. [844 DE; FJ Su11a Ullah v. State of I. & K. A.l.R. 1972 S.C. 2431, refererd to Per Alagiriswami, J: (a) An analv;lis oi the provisions of els. 4 and 7 of An. 22 clearly shows that a maximuni period of detention should be laid down by Parliament whether it is a case of. dete: ~Ion after obtaining the opinion of B an Advisory Board or without obtaiaing the orh·,ion of an Advisory Board. It is clear from the provisions of els. (4) and (;) thi.>;:; a law providing for preventive detention can authorise the detention of a ~rson for a longer period than three months only if an Advisory Board has reported that there is sufficient cause for such detention, that even with the advice of an AdviSory Board the detention cannot exceed the maximum periOd prescribed by law made by Parliament under sub-cl. (b) of ·c1. (7) an4 that if a person is detained in accordance with the provisions of any law made by Parliament under sub-els. (a) C an\! (b) of cl. (7) the detention can bo for a period longer than three months. Therefore, the parliamentary statute can provide for preventive detention without obtaining the opinion of an Advisory Board by laying down the circumstances under which, the class or classes of cases in which it can be done. In that case the maximum period for which a perM>n can be detained should also be specified by the parliamentary law, that is, a pe:non cannot be detained for a period exceedin1 three months without obtainilli the opinion of an Advisory Board unless the concerned provision of law also provides for the maximum period for which such a l)Crson is to be detained. [851 E; 849FG] D (b) The word "may" in Art. 22(7) amounts to "shall". The power to dispense with the opinion of an Advisory Board is given only to Parliament. When it makes a law under els. (7) (a) and (b) of Art. 22 that also would bind the State Legislatures in so far as they enact any legislation with regard to prcveDtive detention. Though the State Legislatures have the power with reJ(ard to preventive detention, they do not have the power to prescribe the circumstances under which and the class or- >elasses of cases in which a person may be detained for a period longer than three months without obtain.jog the opinion of an Advisory E Board. That pawer ia completely that of Parliament and any State legislation will al~o be subject to the maximum period prescribed by Parliament under a legislation made under Art. 22(7)(a) an<) (b). [849 H; 850 Al)] A. K. Gopalan v. The State of Madras, (1950] S.C.R. 88,"S. Krishnan v. The Stat~ of Madrns. fl9S11 S.C.R. 621. and State of West Bengal v. Ashok Dey, [197ZJ 1 s.c.c. 199. distinguished. (2) (a) The power to prescribe a maximum period given to Parliament (referred to in this proviso) is to prevent the State l.egiilatures making laws with F regard to preventive detention without any maximum limit. The Constitution makers apparently did not-want the State Legislatures to have an unfettered power with regard to prcventiv' detention even in the field allotted to them under Entry 3 of List m of Seventll Schedule. [850 D--E] (b) An harmonious construction of the whole of Arts. 22 ( 4) and (7) would thus necessitate that Parliament should provide a maximum -period of detention not merely in respect of laws relatinf to preventive detention made by State Lcgis~ G laturcs but also its own laws regard1pg preventive detention. If the proviso to sub-cl. (a) contemplates Parliament making a law providing for the maximum period of detention which cannot be exceeded by any State law rea,arding preven· tive detention the reasonable construction would be to hold that it is obligatory on Parliament to legislate under sub-cl. (b} fettering the hands in the matter: of legislating with regard to the maximum ocriod of detention. If the Parliament can fix the maximum period it can also alter it. _Jf legislation with regard to the provisions of a maximum period is merely optional there was no need for the proviso at aU. The concept of f . maximum period of detention runs through the H whole of Art. 22(4) and (7). This is because while Parliament and State Legis- ·laturcs mate laws it' i' the executive th~t mak•s orde" of detention and if no maximum period of detention Is 1pecifled by law It would be open to the execuflve to keep persons in detention indefinitely. [850 H; BS I A-q · A B c D E F G H 1'/.GU SHAW V. WEST BENGAL 835 Per Bhagwati, J : (I )(a) Parliament is under no obliaation to make a · law under sub-cl. (a) of cl. (7). It is only if the requirement of obtaining the opinion of the Advisory Board is intended to be dispensed with that the Parliament must make a law under sub-cl.. (a) of cl. (7). If the Parliament does not make such a law, cl. (4)(b) will not come into operation and detention for a period longer than three months whether under Parliamentary law or under State law, would be impermissible without obtaining the opinion of the Advisory Board. The language of cl. (4)(b) posits clearly and in no uncertain terms that there must be law both under sub-els. (a) and (b) of cl. (7) in order that cl. (4)(b) may operate. If ther:e is a law only under sub-cl. (a) of cl. (7) and no law under sub--cl. (b) of cl. (7), a person cannot be detained longer than three months without obtaining .the opinion of the Advisory Board as contemplated under cl. ( 4) (b). The makin11: of a law by the Parliament under sub-cl. (a) of cl. (7) is, therefore, obligatory 1f the detention is to be for a longer period than three months without the intercession of the Advisory Board. ·[824 -B-H] (b) It is clear on a combined reading of the proviso aild the main provision in cl. ( 4) (a) that the proviso is an integral part of the main provision. It is intend· ed to cut down the large amplitude of the power of detention conferred under the main provision. The scope and _boundary of the power of dci:;:ntion under cl. (4)(a) can, therefore, be defined only by reading the proviso and the main provision as one .single enactm~nt. If the proviso does not operate he main pro· vision also would not, for the main provision is intended to o~rate only with the limitation imposed by the proviso. The proviso i11 not used in 1ts traditional ortho· dox sense. It is intended to enact a substantive provision laying down as outside limit to the period of detention. If there is no outside limit by reason of Parlia• ment not having prescribed the maximum period under cl. (7}(b), the provision enacted in cl. (4)(a).cannot operate. and in that event detention cannot be continued beyond three months, even though the opinion of the Advisory Board may be obtained. Th~ proviso clearly posits ihe e;:dstence of a law made by Parlia· ment under cl. (7}(b) and makes it an essential element in the operation of ,cl. (4)(a). [859 B-E] A. K. Gopalan v. Stale of Madras, [19501 $.C.R. 88, S. Krishnan v. The State of Madras, [1951] S.C.R. 621 and Stare of Wtst Bengal v. Ashok Dey, [1972] 1 S.C.C., 199, distinguished. (c) Parliament is free to prescribe or not to prescribe ·the maximum period under cl. (7) (b). But if no maximum period is prescribed neither Parliament nor the State Legislature can authorise detention for a long period than ihree months either under sub-cl. (a) or sub-cl. (b) of cl. (4). If the Parliament or the State Lcgi~lature wishes to authorise detention for a period tonger than three months it must conform to the provisions of either sub..cl. (a) or (b) of cl. (4) and that requires that the maximum period must be prescribed -by Parliament by law made under cl. (7)(b). [860 HJ (2) The highest or the greatest extent or stretch of time may bd determined 'by means of a fixed date or In tet"ms of years, months or days or by reference to the occurrence of an event. But whatever be the mode of determination the maximum period must be a definite period. What is necessary is that the point of time at which the event would happen must be definite. [863 E] In the instant case since it cannot be predicated with any definiteness as to when the emergency would come to an end the period prescribed by s. 13 of the Act cannot be said to be the "maximum period" within the meaning of cl. (7) (b). Parliament has not prescribed the maximum period of detention as contemplated under cl. (7) (b) and so no person can be detained under the provisions of the Act for a period longer than three months. [866 C] ORIGINAL JURISDICTION : Writ Petition Nos. 41, 106 etc. etc. of 1973. Ulider Art. 32 of the Constitution for issue of a writ in the nature of habetm corpus. R. K. Maheshwari, for the petitioner (in W.P. 41). 836 ·SUPREME CO\!ll.T REPOl.TS. .(1974] 2 S.C.R. A. K. Gupta, for the pl'titioner (inW.P. Ne:". 106 & U3l. A M. S. Gupta, for the petitioner (in W.P. Nos. 441 & 214). T. S. Arora, for the petitioner (in W.P. 621). N}re11 De, .Au.orney General of India and D. N. Mukherjee, for the resp0nd.ent (in W.P. 106). Dilip Sinha, for the re.j1p0ndents (in W.P. Nos. 113, & 441). B M. M. Kshatriya, for the respondents (in W.P .. 214). P. K. Chatterjee and G. S. Chatterjee, for the respondent· (in W.P. 40. Niren De, Attorney Generdl of' India and R. N. Sachthey, ·for Attorney General of India. · Ramamurthy, for intervener No. 1 and for intervener No. 2. The J \ldgmerit of Ray CJ, Mathew & Chandrachud JJ. was delivered by Mathew J. Alagiriswami, J. and Bhagwati, J. gave partly dissenting Opinions. MATHEW, J. In these writ petitions filed under article 32 of the Constitution, the petitioners question the legality of their detenti0n and pray for issue of writs in. the nature of habeas corpus, These petitions raise a common constitutional question, namely, whether Parliament is bound to prescribe the maximum period of detention under article 22(7)(b) of the Constitution in order that the proviso to article. 22('1l(e) might operate, and, whether, bys. 13 of the Maintenance of Intemal Security Act, 1971. (Act 26 of 1971), hereinafter referred to as the Act, after it was amended by s. 6( d) of the Defence of India Act, 1971, the Parliament has prescribed the "maximum period". The orders passed by the Government of West Bengal under s.12 ( 1) of the Act in these cases provide that the Governor is pleased to confirm the orders of detention and to continue the detenuon of the detenues till the .expiration of 12 months from the dates of their detention or until•the expiry of the Defence of India Act, 1971, whichever is later. · The material part of s. 13 of the Act as it originally stood ran as follows : c D E F "The maximum period for which any person may be G detained in· pursuance of any detention order which has been confirmed under s. 12 shall be twelve months from the date of detention." After it was. amended by s. 6(d) of the Defence of India Act, 1971, the material part of s. 13 of the Act reads : "The maximum period for which any person may be detained i~ pursuance of any detention order which has been confirmed under s. 12 shall be twelve months from the date H At B of detention· or uritit the exj)iry of the Defence of India Act, 1971, whichever is later/' The Defence of India Act, J 971, came into force on December 4, 1971. Section I ( 3) of that Act provides that the ~ct shall come into force at once and shall remaiii in force during the period of operation of the Proclamation of Emerge11cy and for a period of six months thereafter. Section 2 {g) of that Act defules "Proclamation of Emerg\)ncy" as !lie proclamation issued under clause (l) of article 352 of the Constitution on the 3rd day of December, 1971. The President issued the Proclamation of Emergency under article 352 of the Constitution on December 3, 1971. CArticle 22 ( 4) (a) of the Constitution sa~ that no Jaw providing for preventive detention shall authorize the detention of a person for a period longer then three months unless an Advisory Board has reported before the expiry of three months that there is in its opinion sufficient cause for such detention. The proviso to the article provides that nothing in sub-clause (a) shall autborii.e the detention of any person "beyond the maximum period prescribed by any law made by D Parliament under sub-clause (bl of clause (7)" of article 22. By reason of article 22(4)(b), a person can be detained for a longer period than three months without the nece•sity of consulting an Advisory Board if "such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (al and (b) of clause (7)" of article 22. And, arti~le 22(7) sli~ : E " ( 7) Parliament may by law prescribe- ·(a) the circumstances under which, and the c1ass or classes of cases in which, a person may be · detained for a period longer than three months under any law providing fOr preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub· F clause (a) of clause (4J; G H (b) the maximum period for which any person may in any. class or classes of cases be detained under any law providing for preventive detention; and (cl the procedure to be followed by an Advisory Board in a11 inquiry under sub-clause (a) of clause (4)." Tlie contentions of the petitioners were that the Parliameht was bound to pre&::ribe the maximum period of ~tention under article 22(7) (b) of the Constitution in order that the proviso to .article 22(4) (a) might operate and, as s. i3 of the Act as amended did not prescribe "the maximum period" of .retention, the confirmation of the detention orderi; in terms of s. 13 of the Act was bad. The learned ~. ttorniey General, who appeared for the resportdent in these petitions, submitted that in s. 13 of the Act the Parliament has prescribed "the maximum period" of detention. And. in the alter- 838 -SIJP_REME ,COURT REPORTS [1974] 2 s.c.R. native, he s_aid that the Parliament was not bound to presi:ribe the maximum period of detention for the proviso to article. 22( 4J (a) to operate. · · In.A. K. Gopalan v. The'State of Madras(i) Kania, C. J. said that ar.ticle -22(7) (b) is permi~sivc, it being not obligatory on Parliament to prescribe the maximum period and that if this construction resulted in a Parliamentary law enabling the detention_of a person for an indefinite 'period without trial, that unfortunate consequence is the result of the words of article 22(7) itself and that the Court could do nothing about it. In Krishnan v. The State of Madras('>, s.11 of the Preventive Detention (Amendment) Act, 1951, was impugned as violative of article 22(4)(a) on the ground thats.- If did not fix a maximum period of detention but on the contrary, empowered the Government in express terms to order that the detenu was to continue in detention for such period as it thought fit. '!be Court, by a majority, held that s.11 was not invalid on the ground that it did not fix the maximum period of detention inasmuch as the Act was to be in force only for a perio4 of ·one year and no .;,,tention nnder that Act could be continued after the expiry of the Act. Mahajan, J. pointed out that the point was concluded by the decision in Gopalan's case(1) where Kania, C.J. had obsel"Ved that it was not .obligatory on Parliament tO prescribe any maximum period. On the other hand, B.>se, J. who wrote a dissenting judgment, held that though it was not obligatory on Parliament to fix the maximum period of detention under article 22(7l(b), if it wanted to detain a person for a periQd lon£er than three months, it could only do so by providing in the Act the maximum period of detention. In the State 'of West Bengal v. A.shok Dey and Others(') the central issue was whether a State Legislature has power to pass a Jaw providing for preventive detention of a person for a period Jooger than three months even after obtaining the opinion of an Advisory Board that there was sufficient cause for detention, unless the Parliament· has prescribed the maximum period of detention under article 22(7)(bJ. The contention was that there was no such power. The Court negatived the contention and said that article 22e1) is couched i11I a permissive way, that there is nothing mandatory. aqout it and that the majority decision in Krishnan's case(') following the observation of Kania, C.J. in Gopa/an's case(' J was binding on the Court. The Court also said that under entry 3 of list III of the Seventh Schedule, both Parliament and State legislatures have concurrent power to make laws in respect of ''prevent_ive detention for reasons connected with the security of a State, the maintenance of public order, or the matntenance of supplies and services essential to the community; persons subject to such detention", and that as the State legislatures have plenary power to make law providing for preventive detention within the limitations imposed by the Constitution, the power must necessarily extend to all -··--(tYTi9i6f"s:c:R::-s8~- (2) [195t) S.C-R. 621 (3) [1972] 1 s.c.c. 199. A B c D E G H FAGU SHAW v. WBST BENGAL (Mathew, /.) 839 A matters incidental to preventive detention ~s contemplated by this entry subject only to the condition that the law made by the State should not come into· conflict with a law made by Parliament with respe<;t to the same matter. The Court came to 'the conclusion that there was no limitation on the power of a State legislature to make a law providing for deteniion for a period beyond three months for the reason that Parliament has not made a· law prescribing the maximum period of B detention under article 22(7) (bl. c D E Great reliance was placed by the petitioners on the reasonina; con• tained in the dissenting judgment of Bose, J. in Krishnan's case(supra) for the proposition that the fixation by Jaw of the maximum period of detention is obligatory upon Parliament in order that the proviso lo article 22 (14> (a) may operate. According to Bose, J ., a law providing for detention of " person beyond a period of three months must satisfy either clause ( 4 Ha) or clause· (4l(b) of article 22. The leai;ned judge was not, however, 11repared to read the word 'may' in clause ( 7) of article 22 as meaning must' as that would chao,ge the usual meaning of the word. He was of the view that Parliament is free to prescribe or not to prescribe the maximum period of detention under article 22(7)(b) and thaf neither Parliament nor S\ate legislature can be compelled to pass a Jaw autho· rising preventive detention beyond three months but, if, however, either wishes to do so, then it is bowld to conform to the provisions of either sub-<:).ause (It) or (bl of article 22( 4) or both, and that, in the case of sub-clause (a), the proviso is as much' a ~ of the sub-clause as its main provision. The learned judge then. said that if no maximum limit is prescribed under sub-clause (bl of article 22(7), the provis9 to article 22(4)(a) cannot operate, and, if it cannot operate, no legislative action can be taken under clause ( 4 )(a), and rell>rted to reasoning from analogies to fortify his conclusion. Ile observed : "If A is told byB that he msy go to a bank and withdraw a ~um of money not exceeding such limit as may be fixed by C, it is evident that until C fixes the limit no money can .be withdrawq. Eqnally, if A is told that II he may withdraw money not exceeding a limit which he himself may fix, there can, in .mY opinion, be no right of withdrawal until he fixes the limit". He concluded his judgment by saying that tlio majority judgment abounted to the COl)lltitution telling all J>Crsons resident in the l!'Jl~ that "tho~gh .w~ au!horiee Parliament to prescribe a maximum llllllt !>f' detention if It SO chooses, We -p)8ce DO comeuJsion on it to do G so and we ailtho;ise it ~o pass legislation which will empower any person or authority Parliament chooses to name, right down to a police oonst~ble, to arrest Y?ll w*1 detain. you as long as he pleases, for the H dllration of your life if. he wants, so that you may lirtger and rot in jail till you i:lie; as did men in. the Bastille". We think the analogies 'which the learned jWige referred to are. In. fact, Dlisleading and his reasonings from them- not c~nclng. · Under entry 3 cit List III of the Seventh Schedule, both Parliament and _S!ale le~slatures )lave p~enary po~r .lei P.1188 .laws for preventive detention as respects the subiects mentioned therem. As ancillary to 840' SUPREME COURT REPORTS [1974) 2 s.C.R. that. power, or, as an inseparable part of it Parliament aDd State legislatures have power to fix the period of detention also. One cannot imagine a power to pass a law for detention unlcls that power carries with it the incidental power to provide for the period of such detention. Therefore, both Parliament and State iegis!atures ,have power under the entry to provide. for detention of a person for a specified period. 'The purpose of article 22 ( 4) (a) is to put a curb on that power by providing that no Jaw shall authorize the deten,tio0_of a person for a period exceeding three months unless an Advisory Board has reported within the period of three months that there is sufficient cause for detention. And, what the proviso means is that even if the Advisory Board has reported before the expiration of three months that there is sufficient cause for detention, the period of detention beyond three months shall not exce_ed the maximum period that might be fixed by any law made by Parliament under article 22(7)(b). 'fhe proviso catinot mean that even if Parliament does not pass a law fixing the maximum period under article 22(7)(b), the State legislatures, for example, cannot pass a law which provides for detention of a person beyond three months. The period of such detention, viz., detention beyond the period of three months, would then be a matter within the plenary power of Parliament or State legis:"tures, as the case may be, as such a power is incidental to the power to pass. a Jaw with respect to the topics covered by entry 3 of List III. ?··· It is therefore clear that, but for the pruviso to clause (4)(a) of article 22, the Act, as it provides for the opinion of the Advisory Board, can authorize detention of a person for any period, by virtue • of the plenary charac"ter of the legislative power cenferred by the entry. . Whether such a Jaw is liable to be stru~k down_ on the ground that it imposes unreasonable restrictions upon the fundamental rights under article lY is an altogether different question. The proviso says in effect that if Parliament fixes the maximum period under article 22(7) . (bl, the power of Parliament and State legislatur~ to fix the period of . _ detention in a Jaw passed under the entry would be curtailed to that --~J~xtent. : ~. Seeing, therefore, that the power to pass a Jaw prc>Viding for deten- ·' tion cif a person after obtaining the opinion of the Advisory Board focludes the power to fix any reasonable tieriod beyond three months by virtue of the plenary character of the legislativ~ POWer conferee~ by the . entry, the proper analogy would be : A has authority from B to draw any amount from a bank but he is told that if C fixes a limit upon that authority, then he can only draw the amount as fixed by C: in such a case. if C does not fix the amount. the power of A to draw is plenary. Or. if A is told that he mav withdraw monev not exceeding ii limit which he himself may fix. A bas power to draw any amount, nay, the whole amount in the Bank, if only he fixes the limit at that amount. The condition-precedent, namely, the fixation of the amount bv A in such a case, would be wholly illusory, for whatever he chooses to draw would be the limit of his authority. To put it differently, as Parliament and State legislatures have power under the entry to pass a law enabling the detention of a person for a period longer than three B c D E F G H ) J - A B c FAGO SHAW v. WEST BENGAL. (Mathew, /.) 841 months in case . the law provides. fdr' the opinion of the Advisory Boaid, th.ere could be no· limit to that period, except in the context of . its reasonai>Jeness; as-the power to fix the . period of detention · is inci\lental io the plenary power to legislate on the topic of preventive detention. • The proviso merely enables Parliament· to put a curb on that power by preScribing the inaitimum period of detention under article 22(7)(b); The proviso does· not, proprio vigore, compel the Parliament to· fix the· maximum period: Nor does article 22 ( 7). On the other hand, it expressly says otherwise. Whence ·then arises the · obligation· of Parliament to· fix the maximum· -period under article 22(7) (b) ? . We see' no provision which eitlwr ~xpressly or by nece~ sary implication compels Parliament· to do so. Personal liberty· 1s a cherished freedom, more cherished perhaps· than all other freedoms, and we are deeply concerned that no man may linger and rot in de¢ntion. As jl!dges and citiuno, personal liberty is as dear to us as to anyone else and . we may respectfully venture to make the same assumption in regard to those jajges who were parties to the decisions in GopaXin's case(l), Krishnalts case(') and Ashok Dey's cy a law passed und~ article 22(7)(b) would, sub-silmtio repeal the provision in reJ(lU"d to · the maxim Um period in the law passed under. article 22 ( 7), and make that period "the maximum period" for the purpose of article 22(7)(b) _.does, not also strictly arise for consideration. But this much we think is certain, namely, that the prescription of a 'maximum period' by a H law made under article 22 ( 7) (b) bas no particlilar sanctity so far as parliament is concerned, as it colild pass a law for detention ,the '(I) . [1950] S.C.R. 88. (2) [i951] S.C.R. 621. (3) [1972] I S.C.C. 1_99. 84'2 SUPREME COURT REPORTS [197 4] 2 s.c.R. next day providing for a higher 'maximum period' and justify that law as a law passed both under th.e relevant en.try relating to. preventive detention and undet article 22(7) (b). To put it differently, the view !hat the piescriptiqn of the ·maximum period under ar,ticle 22(7)(b) is ~ guarantee that the Parliament cannot pass a law providing for longer period of detention than the maximum period fui:ed under article 22(7) (b) has no solid foundatiqn, as the law of detention fixing the longer period would sub silentio repeal the law under article 22.(7)(b) fixing the .'maximum period'. As Parliament has power to repeal a law fixing ,the maximum period under article 22(7)(b), the longer period fixed under the later law of detention would become the maximum period. Detention without trial is a serious matter. It is only natural that it should conjure up lurid pictures of men pining in Bastille. But malignant diseases call for drastic remedies. And it was this realization that made the Constitutiou-makers-all lovers of liberty-to recon. die themselves to the idea of detention without trial. Even if it is granted that Parliament is bound to fix the maximum period of detention, as we said, such a fixation cannot be immutable. what then is the great guarantee of personal liberty in the fixation of ·the maximum period of detention by Parliament, if that fixation .can fluctuate with the mood of Parliament? The learned Attorney General contended in the alternative i:hat ·if s. 13 as amended is regarded as fixing the maximum period of -detention under article 22(7)(b), it c;loes not suffer from any infirmity -0n the score that the period fixed is indefinite as contended by the petitioners. The petitioners had contended that the expression "the maximum period" occurring in article 22(7)(b) connotes a definite period .-eckoned in terms of years,_ months or days and that no period can be said to be a maximum period unless it is possible to predicate its beginning and end in term~ of years, months or days. In other words, .the argument was that since the determination of the period of detenr tion; namely, the expiry of the Defence of India Act, 1971, is dependent upon t!:ie revocation of the Proclamation of Emergency, the period fixed in s. 13 is not "the maximum period" as visualized by article 22(7)(b). The meaning of the word 'maximum' is, "the' highest attainable magnitude or quantity (of some thing), a superior limit" (Shorter Oxford Dictionary, p.1221, (1953), 3rd ed.) .. The meaning of the word 'period' is " A course or extent of time; · Time of duration" (Shorter Oxford Dictionary, p. 1474). Therefore, the .words "maximum period" mean the highest or greatest course or extent or stretch of time. Tlie highest or greatest course or extent or stretch of time may be measured in terms of years, months. or days, as well as in terms of the occurrence of an event or the continuous of a state of affairs. In Juggilal Kamlapat v. Collector, Bombay( 1), the High Court of Bombay was conc.erned with the question whether a requisition (I) A.I.R. 1946 Bombay 280. A B c D E F G H A B c D E J F G H FAGU SHAW v. WEST BENGAL (Mathew, /.) 843 order which stated that the requisition of the immovable property in . question was to continue during the period of "the present war and six months thereafter" was vague and indefinite. Bliagwati, J. said : "The period of the present war through indefinite in duration was definite in itself in so far as the petitioners were given in as clear terms as it could be an indication of the period for which their property was sought to be requisitioned by respondent I viz., the duration of the present war. The user of this term was as definite as the user of the expression "the life time of A" which is used when settling or bequeathing a remainder in favour of B. B could not be heard to say that the life time of A which was the period prescribed as the one which was to come to an end before the remainder would vest in possession in his favour was a term which was vague or indefinite.