# KHUDIRAM DAS 'A v. THE STATE OF WEST BENGA.L & ORS

- **Citation:** [1975] 2 S.C.R. 832
- **Court:** Supreme Court of India
- **Decided:** 1974-11-26
- **Case number:** Writ Petition No. 324 of 1974
- **Bench:** P. Jaganmohan Reddy, P. N. Bhagwati, P. K. Goswami, R. S. Sarkarxa
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/khudiram-das-a-v-the-state-of-west-benga-l-ors-6361
- **Pages:** 22

## Headnote

B
Constitution of 1ndia, 1950, ·Art. 22(5)-Scope of-Power of detention if
should satisfy Art. 19(1).
Maintenance of ln(ernal Security Act, 1971, s. 3-Satisfaction of detaining
authority, if subjective-Powe.r, if unreasonable-Right of Court ro exami11e
record to see if detaining authority was influenced by material not disclosed to
detenu-'Other particulars' meaning of-Duty lo disclose to detenu.
The petitioner was detained by an order of the District Magistrate under
s. 3(1) and (2) of the Maintenanee of Internal Security Act, 1971. The grounds
of detention slate<) that the petitioner was involved in 3 incidents of removal
of transformers and !heft of c.opper wires. disrupting the supply of water and
electricity and thus acted in a manner prejudicial to the maint~nance of suppli~s
and services essential to the community. The District Magistrate sent a report
to the State Government sending along with the report, the history-sheet of t11e
petitioner. The
1 State Government after receiving the report" of the Adviso1ry
Board confirmed the detention.
In a petition under Art. 32, the petitioner challenged .his detention on the
following grounds :-
(1) The 3 inddents of theft mentioned as. i:rounds of detention were n,~t
. sufficient, objectively, to justify the District Mag1Strate's satisfaction that it w:as
necessary to detain the petitioner;
·
(2) If the power to detain could be exercised on ti)e subjective satisfactinn
of the detaining authority under the section, then it
impo&~d unreasonable
restrictions on the fundamental right of the petitioner under Art, 19(1);
(3) The history sheet of the petitioner was before the Dist. Magistrate,
who, though he' stated that beyond the 3 incidents mentioned in the grounds
he did not take any other material into account in passing the detentfon orde:r.
must have been inlluen:ed bir the other material in the history sheet; and
since that material was not disclosed to the petitioner, there was a '!olaticin
of Art. 22(S), a,nd ss. 3 and 8 of the Act. "and
(4) The history sheet of the petitioner was also.before the State Government
when it approved the order of detention and the State Government must al110
have taken the material into account in confirming the detention order &Ild
this was also contrary to the Constitutional mandate in Art. 22( S) and tlie
legal mandate ir! ss. 3 and 8 of the J\,ct, to give him an opportunity to make
an effective representation against his detention.
Dismissing tlje petition,
HELD : l(a) The Constitutional imperatives enacted in Art. 22(5) aro two
fold : (i) the detaining authority mu~t. a~ soon as may be, that is, as soc•n
as practicable after the detention. communicate to the detenu the ·grounds on whic:h
the order has be,en made; and (ii) the deiaining authority must afford the detenu
the earliest oppo,rtunity of making a representation against the detention order.
In the context, 'grounds' doe"S not merely mean a recital or reproduction of a
ground of satisfaction of the authority in the hmguage of s. 3; nor is .its connoil"°
tion restricted to a bare statement of conclusion of fact.
Nothln~s1 than all
the basic focts alld materials which influenced the detaining autho
' in making
the order of detention must be communicale<l. to the detenu; [83$ : 840C]
.
(b) Th~ \11'.0rds ~sed i!t s. 3(1) and (2) are ~f ~tisfi~, amLtliey clearly
import subiec!lve' satisfaction on .the part o.f the deteinlng,authorii~ .before an
.
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KHUDIRAM v. WEST BENGAL (Bhagwati, J.)
833
order of detention can be made. The power of detention
is a preventive
measu.re. Since every preventive measure is based on the principle that a person
should be prevented from doing something which, if left free and unfattered
it is reasonably probable he would do, it must necessarily proceed in all cases,
to some extent, on suspicion or anticipation as distinct from proof. This being
the nature of the pro:eeding, it is impossible to conceive how it can possibly
be regarde

## Text

_Characters 0–39,825 of 71,671. This is a partial read: ask again with offset=39825 for what follows._

832
KHUDIRAM DAS
'A
v.
THE STATE OF WEST BENGA.L & ORS.
November 26, 1974
[P. JAGANMOHAN REDDY, P. N. BHAGWATI, P. K. GOSWAMI AND
R. S. SARKARXA, JJ.)
B
Constitution of 1ndia, 1950, ·Art. 22(5)-Scope of-Power of detention if
should satisfy Art. 19(1).
Maintenance of ln(ernal Security Act, 1971, s. 3-Satisfaction of detaining
authority, if subjective-Powe.r, if unreasonable-Right of Court ro exami11e
record to see if detaining authority was influenced by material not disclosed to
detenu-'Other particulars' meaning of-Duty lo disclose to detenu.
The petitioner was detained by an order of the District Magistrate under
s. 3(1) and (2) of the Maintenanee of Internal Security Act, 1971. The grounds
of detention slate<) that the petitioner was involved in 3 incidents of removal
of transformers and !heft of c.opper wires. disrupting the supply of water and
electricity and thus acted in a manner prejudicial to the maint~nance of suppli~s
and services essential to the community. The District Magistrate sent a report
to the State Government sending along with the report, the history-sheet of t11e
petitioner. The
1 State Government after receiving the report" of the Adviso1ry
Board confirmed the detention.
In a petition under Art. 32, the petitioner challenged .his detention on the
following grounds :-
(1) The 3 inddents of theft mentioned as. i:rounds of detention were n,~t
. sufficient, objectively, to justify the District Mag1Strate's satisfaction that it w:as
necessary to detain the petitioner;
·
(2) If the power to detain could be exercised on ti)e subjective satisfactinn
of the detaining authority under the section, then it
impo&~d unreasonable
restrictions on the fundamental right of the petitioner under Art, 19(1);
(3) The history sheet of the petitioner was before the Dist. Magistrate,
who, though he' stated that beyond the 3 incidents mentioned in the grounds
he did not take any other material into account in passing the detentfon orde:r.
must have been inlluen:ed bir the other material in the history sheet; and
since that material was not disclosed to the petitioner, there was a '!olaticin
of Art. 22(S), a,nd ss. 3 and 8 of the Act. "and
(4) The history sheet of the petitioner was also.before the State Government
when it approved the order of detention and the State Government must al110
have taken the material into account in confirming the detention order &Ild
this was also contrary to the Constitutional mandate in Art. 22( S) and tlie
legal mandate ir! ss. 3 and 8 of the J\,ct, to give him an opportunity to make
an effective representation against his detention.
Dismissing tlje petition,
HELD : l(a) The Constitutional imperatives enacted in Art. 22(5) aro two
fold : (i) the detaining authority mu~t. a~ soon as may be, that is, as soc•n
as practicable after the detention. communicate to the detenu the ·grounds on whic:h
the order has be,en made; and (ii) the deiaining authority must afford the detenu
the earliest oppo,rtunity of making a representation against the detention order.
In the context, 'grounds' doe"S not merely mean a recital or reproduction of a
ground of satisfaction of the authority in the hmguage of s. 3; nor is .its connoil"°
tion restricted to a bare statement of conclusion of fact.
Nothln~s1 than all
the basic focts alld materials which influenced the detaining autho
' in making
the order of detention must be communicale<l. to the detenu; [83$ : 840C]
.
(b) Th~ \11'.0rds ~sed i!t s. 3(1) and (2) are ~f ~tisfi~, amLtliey clearly
import subiec!lve' satisfaction on .the part o.f the deteinlng,authorii~ .before an
.
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KHUDIRAM v. WEST BENGAL (Bhagwati, J.)
833
order of detention can be made. The power of detention
is a preventive
measu.re. Since every preventive measure is based on the principle that a person
should be prevented from doing something which, if left free and unfattered
it is reasonably probable he would do, it must necessarily proceed in all cases,
to some extent, on suspicion or anticipation as distinct from proof. This being
the nature of the pro:eeding, it is impossible to conceive how it can possibly
be regarded as capable of objective assessment. The matters which have to
be considered by the detaining authority are. whetller the person concerned, having
regard to his past conduct judged in the light of the surrounding circum1tances
and other relevant material. would be likely to act in a prejudicial manner as
contemplated by the A:t. These are not matters susceptible of objective determina.tion and they could not be intended to be judged by objective standards.
It must therefore be held that the subjective s11tisfac:tion
of the
detaining
au.thority constitutes the foundation for the exercise of the power of detention
. and the Court cannot be invited to consider the propriety or sufficiency of the
grounds on which the satis~action is based. [842C-843A]
Go/am @ Go/am MaUick v.
The State of West Bengal, W.P. No. 270 of
1974, dee. on 12th September, 1974, Dr. Ram Krishan Bhardwaj v. The State of
Delhi & Ors., [1953) S.C.R. 708; Shamrao Vishnu Parulekar v.
The District
Magistrate, Thana, [19561 S.C.R, 644; State of Madras v. V. G. Row A.I.R. 1952
S.C. 591 followed.
(c,) In Bliut Nath Mate v. State of West Bengal AIR 1974 SC 806, this
Court observed that the exercise of the power of detention 'implies a quasijud1cial approach'.
This observation was not meant to convey that the power
of detention is quasi-ju.dicial. It only intended to emphasise that the detaining
authority must exercise due care and caution and act fairly and justly in
. exercising the power of detention.
[843C-DJ
2(a) But that does not mean that the subjective satisfaction is wholly immune
from judidal .reviewability.
Courts have, by judicial decisions, cairved out an
area, limited though it be, within which the· validity of the subjective satisfaction
can yet be subjected to judicial scrutiny. There are several' criteria evolved
for examining whether the requisite satisfaction is arrived at by the authority
and for saying that no subjective satisfaction is ·arrived at by the authority as
required .under the statute. One such criteria is whether the grounds on which
the authority ha~ rea1:hed its subjective satisfaction are such that any reasonable
person could possibly arrive at such satisfaction. This Court Will not go into
the adequacy or sufficiency of the grounds on which the order was based. but
will merely examine whether on the grounds given, any reasonable authority
could possibly come to the conclusion to which the District Magistrate did.
This ground in a sense, tends to blur the dividing line between subjective
satisfaction and objective determination but the dividing line is there however
faint or delicate it may be, and courts have never failed to recognise it. Therefore, there is nothing like unfettered discretion immune from judicial rcviewability. [843D-F; 845B-G}
I
Emperor v. Shibnath Bannerji A.I.R. 1943 F.C. 92 Commissioner of Police
v. Gordhandas Bhanji [1952) S.C.R. 135; Simas Motor Units Ltd, v. Minister of
Labour and National Service [19641 2 All E.R. 201; Machindar v. King A.I.R.
[1950] F.C. 129; Pratap Singh v. State of Pun;ab A.T.R. 1964 S.C. 72: Sharp v.
Wakefield [1891] A.C. 173 at 179; Associated Provincial Picture Houses Ltd. v.
Wednesbury Corporation [1948] 1 K.B. 223; Smith v. East El/or Rural District
Council [1956] A.C .. 136;.Fawceit Properties Ltd. v. Buckingham County Council
[1%1] A.C. 636; Ross v. Papadopo/Ios ( 1958) 1 W.L.R. 546 and Debu Maltto
v. State of West Bengal A.I.R. 1974 S.C. 816 referred to.
(b) A law of preventive detention which falls within Art. 22 must also meet
the requirements of Arts. 14 and 19, but in Haradlw.n Salw. v. State of Wtst·
Bengal [1975] 1 S.C.R, 778, this Court has held that the Act doos not violate
any of the constitutional guarantees embodied in Art. 19 and is not invalid on
that account. The petitioner cannot be permitted to reagitatc the same question
834
SVPREMB COURT REPORTS
fl975] 2 s.c.:R.
merely on the s;round that some argument directed agajas its constitutional vlliC~ly
A
under Art. 19 was not advanced or considered by the Court. [847B-DJ
A. K. Gopa/an v. State of Madras [1950} S.C.R. 530, Rustom Cavasjee Coof'lr
v. Union of India [1970] 3 S.C.R. 530; andl Sam/Jhu Nath Sarkar v. State •I
West Bengal [1973] 1 S.C.R. 856 followed.
3(a) It is the right and duty of the Court to examine what are the bask
facts and materials whizb actually and in fact weighed with the detaining autho1ity
B
in reaching the requisite satisfaction. The judicial S"11ltiny cannot be foreclosed
by a mere statement of the detaining authority that it has taken into acco1mt
only certain basic facts and materials and '1,bougli other basic facts and material'
were before it, it bas not allowed them to infiuen.::e its sa.:isfaction. The Court
is entitled to examine the correctness of Olis state.men! and determine for itself
whether there were any other basic facts or materials, apart from those admitted
by it, which could have reasonably iofiuenced the decision of the
detaining
authority, and for that purpose, the court· can require the authority to produce
C
the entire record of the case which was befo<e the authori:y. Tberefo1\!, in a
case where the material before the ,Dist. Magistrate, is of. a character which could
in all reasonable probability be likely to ioauenoe.lhc decisiao of a reasonable
person, the court will not accept the ipse: dixit of 1be Dist, Magistrate that be
was not so influenced, and, a fortiorarl. if such material was not disclosed to
the detenu, his order of detention would• be vitiated both on the ground that
all the basic facts and materials Which influenced '.jhe Dist. Magistrate w1rre
not communicated to the deteuu as well 1:1 on the ground that the detenu vi·as
denied an
opportunity of making an effective representation. [848H-849:D:
D
150A·E]
Daktar Mudi v. State of West Bengal, AJ.R. 197.4 S.C. 2086 followed.
~
( b) In the pre-sent. case, the history sheet ·of the petitioner was before ~be
Dist Magistrate and the material in the history sheet of the petitiol)er was not
disclosed to him. But the material consisted of 2 circumstances; one, thai the
petitioner had picked up the habit of committing thefts of copper wire and tile
other, that there were thefts of transformers at varioUi places. The first was
only a geuerafoation based on the 3 incidents rtferred to in the g~ounds ,of
detention and the second provid,ed the background of the social malady whic:h
was excrdsing the mind of the authority charged with the administration ,of
law and order. Therefore, there was no .material before the Dist. Magistrate,
other than the '.l incidents set out in the grounds of detention which went into
the formation of his subjective s~tisfaction. and wlii<:h ought therefore to have
been communicatod to the petitioner. [8SOE-8S1CJ ·
(4) (a) The requirement of ·approval of the State Government imposed by
s. 3 ( 3) of the Act is intended tp act as a dleck '9r the exercise of the pow1:r·
of d~tention by the Dist. Magistrate. Therefore,· a11 the basic facts and materials;
whizh weighed with the Dist. Magistrate m reaching his subjective satisfaction:
must be placed before the State Governme111t, so that the State Government,
can, as a supervisory authority, decide whether the Dist. Magistrate has acted
propei'ly. In addition to the basic facts and materials. which constitute <he
grounds of detention, the Dist Magistrate i'S . also required to send ID the
State Government under.s. 3(3) such other particulars as in bis opinion haVIng
a bearing on the matter. Obvious1y 'other particulars• c;ould be different from
basic facts and materials and would not be material which has gon:e into the
formation of the su.bjective· satisfaction, because, if they are of such a nature
as could reasonably be said to have influenced the Dist. Magistrate in arrivini
at his satisfaction, they could be part of the 'llfOUllds of- detention• and not
'other particulars•. Though it is not possi'ble to categorise precisely what those
'other particulars' can be, they may inclnde particulan relating to the backgroun11
of the circumstances in which the Dist. Magistrate reached his satisfaction, or
particulars found to be administrativelx. necessary· for· him to communicate tc>
the State Govern.men!, so that its supervisDl'1/ fllnctioii may be efl'ectively dis··
charged. There is nothing in Art. 22(5) of tlJe"COnstlllllion or in any provision
<>f the A::t which requires that these 'other partlCulars' eltould be communicabcl
to the detenu. 1:851C·H]
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EHUl>IllAM V, Wl!llT BENGAL (Bhagwatf, /.)
835
(b)· Jn Hardhan Saha's case this Coun observed that the 'detenu has a right
te be apprised of all the materails on which an order of detention is passed
or approved.' What the court had in mind was only materials which cvnstituted
the grounds of detention and not the 'other particu·ars', because, (i) this Court
· could not have intended that in addition to the grounds 'other pa:rticulars' should
also be communicated when there is no requirement to that effect in Art. 22(5),
and (ii) no such question arose for decision in that case and the court was not
called upon to decide whether 'other particulars• communicated to the State
Government under s. 3 ( 3) are required to be disclosed to the detenu. [8S2C-H]
( c) In the present case, the material from the history sheet which was not
disclosed to the petitioner did not form part of the grounds of detention on
which the order Df detention was made by the Dist. Magistrate and approved
by the State Govt., but merely constitu.ted 'other partkulars'
communicated
by the Di~t. Magistrate to the State Government under s. 3 (3). There was
therefore. no obligation on the Dist. Magistrate or the State Government to
disclose the material to the petitioner, and the non-disclosure did not invalidate
the approval by the Stale Government of the detention order. [8S2H-8S3B]
ORIGINAL JURISDICTION : Writ Petition No. 324 of 1974.
Petition under Article 12 of the Constitution of India.
R. K. Jain, for the petitioner.
D, N. Mukherjee, Sukurnar Basu and G. S. Chatterjee, for the respondents.
The Judgment of the Court was delivered by
BHAGWATI, J. This is a petition for a writ of habeas corpus under
article 32 of the Constitution challenging the validity of the detention of
the petitioner under an. order of detention dated 3rd November, 1973
passed by the District ·Magistrate, Maida under sub-section ( 1) read
with sub-section ( 2) of section 3 of the Maintenance of Internal Security Act, 1971. The questions raised in this petition. are of importance
as they effect the fundamental right of personal .liberty which is one of
the most cherished fundamental rights guaranteed by the Constitution.
It is necessary to state the facts giving rise to this petition in so far as
they are material to a proper understanding of the important issues in·
volved in this petition.
The District Magistrate, Maida passed an order of detention dated
3rd November, 1973 under sub-section ( 1) read with sub-section (2)
of section 3 of the Act directing that the petitioner be detained on the
ground that it was necessary so to do "with a view to preventing him
from acting in any manner prejudicial to the maintenance of supplies
and services essential to the community". Within two days after the.
making of tqe order of detention, that is on 5th November1 1973, the
District Magistrate made a report to the State Government and forwarded to the State Govermpent1 along with his report, copies of the order
of detention, the history-sheet of the petitioner a document to whi<;h we
shall have occasion to refer in some detail a little later-and the grounds
on which the order of detention was made. The State Government,
presumably on a consideration of the total material forwarded by the·
District Magistrate, approved the order of detention on 12th November, 1973 under sub-seqion (3) of section 3 of the Act. It appears that
the petitioner could not be apprehended for some time and it was only
on 25th December, 1973 that he was ultimately arrested pursuant to
8 36
SUPREME COURT REPORTS
[1975) 2 _§.C.JR..
the order of detention. Immediately on )lis arrest, the petitioner was
served with a copy of the grounds of detention as required by section. 8,
sub-section ( 1) of the Act. The grounds of detentioa stated that the
petitioner was being detained :
" ... on the grounds that you have been acting in a manner
prejudicial to the maintenance of supplies and services-essential to the community as evidenced , from the particulars
given below:-
1. That on 22.4.73 at night at about 20.00 hrs. you along
with your associates brake open an electrical tiansformer of
STC clm1ter No. 8 at Uttar Laxmipur village, P. S. Kaliachak.
At the time of oper,ation the guard detected it am;l challenged.
You and your associates chased him with hasμas, iron rod etc.
to assault, when the guard fled away to save his life. You and
your aS1>ociates took away copper wire from transformer. At
a result tube wells of the cluster became inoperative. Thus
you disrupted the supply of water in cultivation of paddy
resulting, failure of crops.
2. That on 1.5.73 at ;ibout 23.00 hrs. you along with yoilr
associates broke open the transfortner at village. Dariapur
under Mauza Bedrabad, P.S. Kaliachak and took away the
valuable portions and the copper wire of the transformer when
the villagers protested, you and your associates threatened
them with death. As such the villagers left the place out of
fear. As a result of such theft supply of ·!!lectricity was disrupted in the area.
3. That on 23-5-73 at 00.15 hrs. you along with your associates Abdul Hamid son of Nur Md. of Uttar Laxmipur
Dafadortola, Mehini Ranjan Das & Hittan s/o L. Arjeen
Monda! of Uttar Laxmipur, Nafar Bhakattolal and two others
removed the transformer from the electrical. part of village
Natichapa Nayagram Deep tube well for the ·purpose of committing theft of copper wire. When the same_ was brought
down to the ground, 0. <!:. Kaliachak P. S, with other staff
who were on ambush patrol caught held of you and two of
your associates the spot. Thus yoi11 acted in a manner prejudicial to the maintenance of supplies and services-essential
to the cdmmU:nity."
·
The petitioner did not make his representation against the order of detention until the beginning of February 1974, but iq the mean time, in
obedience .of section 10 of the Act, the case of the petitioner was placed· by the State Government before the Advisory Board on 22nd Jan·11-
;<Uy, 1974 and the grtiund of detention were also forwarded to the A11 ...
visory Board iii order to enable it to· give its opinion. The representa- .
tion of the petitfoner against the order of detention was in the meai11while received by the State Government on Sth February, 1974. TI1e
State Government considered the representation of the. petitioner and
.rejected i~ on 7th. Feb";WY, 1974, but since the case of the petitioni~r
was pendmg consideration by the Advisory Board, .the State GoWl'I!~
.ment forwardep it to the Advisory. Board for its consideration. Tbe
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KHUDIRAM v. WEST BENGAL (Bhagwati, /.)
8 37
Advisory Board thereafter submitted its report to the State Government
on 26th February, 1974 under section 11 of the Act stating that in its
opinion there was sufficient cause for the detention of the petitioner. The
State Government, on receipt of the report of the Advisory Board, passed an order dated 5th March, 1974 confirming the detention of the
petitioner under section 12, sub-section ( 1) of the Act, and this order
of confirmation was served on the petitioner through the Superintendent
of Police, Murshidabad. It is this detention, originating in _the order of
detention, approved by the State Government and continued under the
order of confirmation passed by the State Government that is being chal- ·
lenged in the present petition.
The petition was presented by the petitioner from jail and since he
was not represented by any counsel, this Court appointed Mr. R. K.
Jain, amicus curiae to present the case on behalf of the petitioner. Mr.
R. K. Jain on behalf of the petitioner urged the following grounds against
the validity of the order of detention :-
(a) It is apparent from the grounds of detention furnished
to the petitioner that there were only three incidents
of theft on which the Disti:ict Magistrate relied for the
purpose of coming to a satisfaction that it was necessary to detain the petitioner with a view to preventing
him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. These three incidents were objectively not
sufficient to justify such satisfaction and the order of
detention based on such satisfaction was,· therefore,
bad ..
(b) If the view be taken that the power to detain a person
could be exercised by the detaining authority merely
on its subjective satisfaction which could not be tested
·
with reference to objective standards, section 3 of the
Act, which empowered the detaining authority to exercise the power of detention on the b11.Sis of its subjective satisfaction, imposed unreasonable restrictions on
the fundamentsl rights" of the petitioner under Art.
19 ( 1) and was, therefore, ultra vires that article.'
( c) The history-sheet of the petitioner was before the District Magistrate when he made the order of detention
and though the District Magistrate stated in his affi.-
davit in reply that beyond the three incidents mentioned in the grounds of detention he did not take any
other material in the history-sheet into account in passing the order of detention, it was impossible to say
that he was not influenced by spch other material and
since no opportunity- was given to the petitioner to
make an affective representation against such other
material, the order of detention was in· contravention
of Art. 22(5) of the Constitution and section 8, subsection ( 1) of the Act and was on that account invalid.
838
(d)
SUPREME COUU REPORTS
[1975j 2 s.c.R.
The history-sheet of the petitioner which contained
other relevant material in regar~ to the petitioner in
addition to the three incidents referred to in the
grounds of detention was before the State Government
when it approved the order of detention and in the absence of any ~,tatement to the contrary on behalf of the
State Government in the affidavit in reply, it must be
inferred that the State Government took such other
material into account in approving the order of detention. This was contrary to the constitutional mandate in Art. 22 ( 5) of the Constitution and the legal
mandate in section 3 read with s. 8 of the Act and it
vitiated the order of approval made by the State Gov-
':rnment and n:ndered the detention of the petitioner
illegal.
These were the main grounds of challenge urged by Mr. R. K. Jain
on behalf of the petitioner. We shall proceed to examine them.
We will first consider the constitutional background against which 1the
Act has been enacted and then refer to the material provisions of 1he
Act. The relevant l!rticle of the Constitution having a bearing on tbis
;question is article 22. This article has. been analysed in more cases
than one by this Court and it is clear from the decided cases that this
article providc:s various safeguards calculated to protect personal liberty
.against arbitr11ry restraint without trial. These safeguards cannot be
regarded as substantial. They are essential procedural in character a:11d
their efficacy depends on the care and caution and the sense of respon-
·sibility with whi~h they are regarded by the detaining authority. Two
.of these safeguards, which relate to the observance of the principle of
natural justice and which a fortiorari are intended to act_ as a check c>n
;arbitrary exercise of power, are to be found in Art. 22(5) of the Constitution. This provision of the Constitution introduces two procedural
requirements embodying the rule of audi alteram paritem to a limit<)(!
but a crucial and compulsive extent by providing that : "When any
person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as
soon as may be, communicate to such person the grounds on which the
order has been made and shall afford him the earliest opportunity of
making a representation against the c>rder". The constitutional imperatives enacted in this article are two-fold : ( 1) the detaining authority must, as soon as may be, thar is, as soon as practicable after tbe
·detention, communicate to the detenu thf: grounds on which the order <lf
detention bas been made, and (2) the detaining authority must afford
the detenu the earliest opportunity of making a representation against
the order of detention. These are the barest minimum safeguards
which must be observed before an executive authority can be pennitteci
to preventively detain a person and thereby dro~n his right of personal
liberty. in the name of public good and social security. But, what is the
content of these safeguards ? What does the word 'grounds' mean ?
Does it mean only the final conclusion reached by the detaining autho·
rity on which 2~one the order of detention can be made, or does it
include the basic facts and materials from which the conclusions justify ..
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KHUD!RAM v. WEST.BENGAL (Bh11gwati, /.)
8 39
ing the order of detention are drawn by the detaining authority? What
·is the inter-relation between the requirements of the first and the second
safeguards ? Is the efficac1 of the second safeguard violated by nonobservance of the requirement of the first safeguard? If all the 'gruunds'
which weighed with the detaining authority are not communicated to
the detenu, does it constitute merely a breach o'f the first safeguard or
does it also involve the vk>lation of ·the second ?
. The answer to these questions does not present any serious difficulty if only we consider the reason why the grounds are required to
be communicated to the detenu 'as soon as may be' after. the detention.
Obviously the reason is two-fold. In the first place, the requirement
of communication of grounds of detention acts as a check against
arbitrary and capricious exercise of power. The detaining authority
cannot whisk away a person and put him behind bars al' its own sweet
will. It must have grounds for doing so and those grounds must be
communicated to the detenu, so that, not only the detenu .may know
what are the facts and materials before the detaining authority on the
basis of which• he is being deprived of his personal liberty, but he can
also invoke the power of judicial review, howsoever limited and _peripheral it may be. Secondly, the'detenu has to be afforded an opportunity of making a representation against the order of detention. But
if the grounds of detention are not communicated to him how can he
make an effective representation ? The opportunity of making a representation would be rendered illusory. The communication of the
grounds of detention is, therefore, also intended to subserve the purpose
of. enabling the detenu to make an effective representation. If this
be the true reason for providing that the grounds on which the order
of detention is moade should be communicated to the detenu, it is
obv\pus that the 'grounds' mean all the basic facts and materials which
have been taken into. account by the detaining authority in makintj
the order of detention and on which, therefore, the order of detention
is based. To quote the words of one of us (Sarkaria, J.) in Golam
@ Golam Mallii:k v. The State of We.11t Bengal('1)" ••• • in the context.
'grounds' does not merely mean a recital or reproduction of a ground
of satisfaction. of the authority . in the language of section 3 of the
Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more.
That 'something' is the
factual constituent of the 'grounds' on which the subjective satisfaction
of the authorit)r is based. The basic facts and material particulars,
therefore, which are the foundation of the order of detention, will also
be covered by 'grqunds' within the contemplation of article 22(5) and
section 8, and are required to be communicated to the .detenu unless
their disclosure is considered by the authority to be against the public
· interest." This has. always been the view consistently taken by this Court
in a series of decisions. It is not necessary to burden this judgment
with citation of all these decisions. It would be sufficient if we quote
the following observations of P'atanjali Sastri, C.J ., in Dr. Ram Krishan
Bhardwaj v. The State of Delhi & Ors.(2)
" .... the petitioner ha.s
(I) W. P. No. 270 of 1974. uecided on 12th September, 1974.
(2) [1953) S.C.R. 708,
840
SUPREME COURT kEPORTS
[1975] 2 s.c.11..
the right under article 22(5), as inte1preted by this .Court by a majority, to be furnished with particulars of the grounds of his detention
'sufficient to' enable him to make a representation which on being c:onsidered may give relief to him'. We are of opinion that this constitu~
tional requirements must be satisfied with respect to each of the grounds
communicated to the person detained." Venkatarama Ayyar, J., also
pointed out in Shamrao Vishnu Parulekar v. The District Magistrate,
Thana( 1) that consttuing the words 'grounds on which the order has
been made' in their natural and ordiiμ1ry sense, "they would include
any information or material on which the order was based. The Oxford Concise Dictionary gives the following meanings to the word
'ground' : 'Base, foundation, motive, valid reason'. On this definition,
the materials on which the District Magistrate considered that an order
of detention should be made could properly be described as grou.nds
therefor".
(emphasis supplied). It is, therefore, clear that nothing
less than all the basic facts and materials which influenced the detaining
authority in making the order of det,entii>n must be communicated to
the detenu. That is the plain requirement of the first safeguard! in
article 22(5). The second safeguard in article 22.(5) 'requires 1that
the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. No avoidable delay, no
shortfall in the materials communicated shall stand in the way of the
detenu in making an early, yet comprehensive and effective, representation in regard to all basic facts and material which may have influf:nced the detaining authority in making the order of detention depriving
him of . his freedom.
These ar!! the legal bulwarks enacted by the
constitution-makers against arbitrary or improper exercise of the vast
powers of preventive detention which may be. vested in the executive.
by a law of preventive detention such as the .Maintenance of Internal
Security Act, 1971.
We may now refer to the provisi011s of the Maintenance of Internal
Securitiy Act, 197 l. Section 3, sub-st:ction ( 1) confers powers of preventive detention on the Central and State Goverrun'ents in the following terms:
"The Central Government or the State Government may.~
(a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in
any manner prejudicial to-
(b)
( i) the
defence
of India, the relation of India with
foreign powers, or the security of India, or
(ii) the security of the State or the maintenance of"public
order, or
(iii) the maintenance of supplies and services essential to
the community, or
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it is necessary so to do, make order directing that such
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person be detained."
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(!) [1956] ~.C.R. 644.
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KHUDIRAM v. WEST BENGAL (Bhagwati, J.)
8 41
Sub-section ( 2) of section 3 vests this power of preventive detention
also· in a District Magistrate by enacting that a District Magistrate
"may, if satisfied as provided in sub-clauses (ii) and (iii) of clause
(a) of sub-'section (1), exercise the power conferred by the &aid subsection".
But when an order of detention is made by a District
.Magistrate, sub-section (.3) of section 3 requires that :
" .... he
shall
forthwith report the fact to the Statt;
Government to which he is subordinate together with the
grounds on which the order has been made and such other
particulars as in his opinion have 'a bearing on the matter,
and no such order. shall remain in force for more than twelve
days from the making thereof unless in the meantime it has
been approved by the State Government."
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Section 4, 5, 6 and 7 are not material for the purpose of the present
petition and we need not refer to them.
Section 8 is important and
it may be reproduced as follows-:
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"(1) When a person_.is detained in pursuance of a
. detention order' the authority making the order shall, as
soon as may be, but ordinarily not later than five days .and
in exceptional circumstances and for reasons to be recorded
in writing, not later ·than fifteen days, from the date of detention, communicate to him the grounds· on which the order
)las been made and shall afford him the earliest opportunity
of making a representation agains_!: the order to the appro- ·
. priate Goveri1ment.
_
, (.2) ~othing in sub-section (1) shall require th-e authority to disclose facts which it considers to be· against the
public interest to disClose."
. ·
Section 9 provides for ·the constitution oi an Advisory Board and
·section 10 lays on obligation on the appropriate Government, in every
case where an. order bf detention has been made, to place before
the Advisory Board, within thirty days from the date ol'
detention
f
under the order, "the grounds on which the order_ has been made
and. the representation, if any, made by the person affected by the
order, and in case where the order has been made by an officer, also
the report by such officer under. sub-section ( 3) of section 3 ".
The
· Advisory Board is required by section 11, sub-section (1) to submit
its report to the appropriate Government within ten week's from the
date of detention after consiclering the materials· placed before it and
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after calling for such further information as it may deem necessary,
and if, in any _particular case, it considers it essential so to do or if
the person concerned desires to be heard, after hearing him in person.
Where the Advisory Board reports that there is in its opimor
no sufficient cause for the detentio"1 of the person concerned,
the
appropriate Government is obliged under section 12, sub-section (2)
to r·:voke the order .of detention.
If, on the other hand, the opinion
H
of the Advisory B.oard is that there is sufficient cause for the deten.
tfon, the appropriate Government may unde_r' section 12, sub-section
(1) confirm the order of detention and continue the. detention or
7-1146 !'l1mCI/75
.
842
Sf.IPREME CQUU. R.EPOllTS.
[1975] 2 s.c.R.
revoke the order of detention as it thinks fit on a consideration of
all the facts and circumstances which. are before it. These are the
material provisions of the Ac·t which have a bearing on the determination of the question arising in thin petition.
Now it is clear on a plain reading of the language of sub-sections
( 1) and (2) of section 3 that the exercise of the power of detention
is made d.eJ>endent on the subjective satisfactiol} of the
detaining
authority that with a view to preventing a person from acting in a
prejudicial manner, as set out in sub-clauses (i), (ii) and (iii) of
clause (a) of _sub-section (1), it is necessary to detain such person.
The words .used in sub-sections ( 1) and (2) of section 3 are "if
satisfied" and they clearly import subjective satisfaction on the part
of the detaining authority before an order of detention can be ma.de.
And it is so provided for a valid reason w!llch becomes apparent if
we consider the nature of the power of detention and ·the conditions
on which it can be exercised. The power of detention is clearly a
preventive rrieasure. It does not partake in any manner of the nature
of punishment. It is taken by way of precaution to prevent mischief to the community; Since every preventive measure is based
on the principle that a .person should be prevented 'from doing something which, if left free and unfettered, it is reasonably probable he
would do, it niust necessarily procec~d in all cases, to some extent,
on suspicion or ·anticipation as distinct from proof. It.itanjali. Sas.tri,
C.J., poip.ted out in Sto.r~· of ~rμiras v. V. G. Row(') that preventive
detention is "largely precautionary and based on suspicion" and to
these ob,~rvations !llay be ad~~d the following worqs uttered by the
~earned Oiief Justice in ~t case with reference to the observatim1s
oi Loid Finlay in Rex v. HQl/iday,(2) nam.ely, that "the court was
the least appropri~te tribunal to investigate into' circumstances of
suspicion. on which such anncipiqory action must be largely based".
This being the nature of t~ proceeding, it is. impossible to oonce1ve how
it can possibly be regarded as capable. of objective assessment. The
matters which have to ~ co~idered by the de~nii;ig authority are
whether the person conc.erned, having regard to his past conduct
judged in the light of the SIUTl>Ullding circumstances and othei: r~le
vant material,, would be li.kely to act in a prejudicial, manner as cc:>ntemplated in any of sub-clauses (i), (ii) and (iii)" of clalll!e ( !l) of
sub-section ( 1) of section 3, ~
~ so, whether it is necessary to
detain him with a view to preventing him from so acting.
The&e are
not matters i1usceptible of objective deterinination and· they c,ould not
be intended to be judged by objective standards.
They are eSS(~n
tially matters which have to be administratively determined for llhe
purpose of· taking administrative action. Their &termination ·is,
therefore, deliberately and advisedly foft by the legislature to the subjective satisfaction of the detiiining · authority which by reason of itS
special . position, experience and expertise would .be besi fitted ro
decide them. It must in the circumstances be held that the subjective
satisfaction of the detaining authority as re~ds time matters cowititutes the fmindation for' the exercise of the power of detentic:i Md
(I) A.I.R. 1952 S.C. 597.
(2)'[~917] J\C. tro
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8 43
the Court .cannot be invited to consider the propriety or sufficiency
~f .the. grounds on which the satisfaction of the detaining authority
!S based.
'.f!1e Court cannot, on a review of the grounds, substitute
Its own opm1on for t~at of the authority, for what is made condition
preced~nt ~o the exemse of-the power of detention is not an objective
deternunali<?P. ~f the. ~ecessity pf d~te.ntion. for a specified purpose
?ut . the su?i~cliv~ opm1on of the detammg authority, and if a . sub1ect1ve. op1ruon is. formed by the detaining authority as regards tit.:
necessity o~ detention for a specified purpose, the condition of exercise
of the power of detention would be fulfilled.
This would clearly
show that the power of detention is not a quasi-judii/al p~wer. It
was~ howpver, .sought to. be contended on behalf of the petitioner,
r~lymg on the observation of this Court in Bhut Nath Mata v. The
5tate of West Bengal('.!) that the exercise of the power of detention
"implies .~ 9ua:r~-judici<;il apprQach", that the power must be regarded
as a q~asi-1ud1cial. po~er. But we do not think it _would be right to
read .this observalion In the manner contended on behalf of the petitioner. This observation .was not meant to convey that the power
of detention ls- a quasi-judicial power.