# PURANLAL LAKHANPAL v. UNION OF INDIA

- **Citation:** [1958] 1 S.C.R. 460
- **Court:** Supreme Court of India
- **Decided:** 1958
- **Bench:** Bhagwati, Jafer Imam, s. K. DAS, J. L. Kapur, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/puranlal-lakhanpal-v-union-of-india-1474
- **Pages:** 39

## Headnote

Preventive Detention-Order continuing such detention beyond
three months-Validity-Opinion of Advisory Board, if a pre-requisite
-'Such detention', meaning of-Constitution of India, Art. 22 (4)(a)
-Preventive Detention Act, 1950 (Act IV ofl960) as amended by the
amending Act of 1951 (No. of 1951), s. 11 (I)
The appellant was arrested under s. 3 of the Preventive
Detention Act, 1950 (IV of 1950) as amended by the amending Act
of 1951. The grounds of his detention were communicated to him
as required by s. 7 of the Act and his case was thereafter put up
before the Advisory Board constituted under s. 8 of the Act. The
Board reported that there was sufficient reason for his detention
and thereupon the Central Government acting under s. 11(1) of the
Act confirmed the order of detention and directed that such detention should continue for a period of twelve months from the date
of detention. The appellant challenged the validity of this order
by an application to the Punjab High Court under Art. 226 of the
Constitution for a writ
of habeas corpus and contended
that
sub-s. (I) of s.11 of the Act was constitutionally invalid as
it
contravened the provision of Art. 22(4) (a) of the Constitution. The
High Court found against him. The same point was canvassed in
appeal to this Court and it was contended that the expression
'such detention' occurring in sub-cl. (a) of cl. (4) of Art. 22 referred
to detention for a period longer than three months mentioned in
cl. (4) of the Article ands. 11 (!)of the Act, in so far as it permitted detention for more than three months without
a• specific
report from the Advisory Board that there was sufficient cause
for detention for more than three months, was ultra vires. It was
contended on behalf of the Union of India that the expression
'such detentiop.' referred to 'preventive detention~ occurring in
the first line of cl. ( 4) of Art. 22 and what an Advisory Board
contemplated by sub-cl. (a) of that clause was intended to do was
only to give its opinion as to whether there was suJlicient cause
for the detention itself and not as to the P,eriod of detention.
Held (per Bilagwati, Jafer Imam, S. K. Das and J. L.
Kapur J. J., Sarkar J. dissenting). The contention advanced on
behalf of the respondent was correct and the appeal must fail. The
expression 'sucn detention' in Art. 22 (4) (a) of the Constitution
refers
to prevemive detention and not to any period for which
suc;1 detention 3aou1tl continue and s. 11 (;) of the Preventive
Detention Act do'"' not contravene the provision of Act. 22 (4)(a)
of the Constitution.
S.C.R.
SUPREME COURT REPORTS
461
The true scope and effect of cl. (4) of Art. 22 must be judged
in the light of the entire scheme envisaged by Art. 22 and so
understood, it becomes clear that the Constitution could not have
intended that while the determination of the necessity of preventive detention should be left to the Executive, the determination
of the period for which such detention should continue should be
left to the Advisory Board.
In the very nature of things any
decision as to the period of such detention can be taken only by
the detaining authority upon which has been placed the responsibility for the detention. The reference to the Advisory Board is
intended to be a safeguard against any possible misuse of its power
by the Executive and affords a machinery for the review of its
decision on the basis of the representation made .by the detenu,
the grounds of detention or the report of any Officer who may
have passed the order, it is not a limitation on the Executive's
discretion as to the discharge of its duties connected with preventive detention.
A. K.
Gopalan v. The State of Madras, (1950) S.C.R. 88,
referred to.
An examination of the scheme of the Act shows that its
provisions are in conformity with the relevant provisions of the
Constitution. While the Act authorises. detention for more than
three months, it does provide for a reference of the order of detention to the Advis

## Text

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1951
Septtmber 11.
460
SUPREME COURT REPORTS
[1958]
PURANLAL LAKHANPAL
v.
UNION OF INDIA
(BHAGWATI, JAFER IMAM, s. K. DAS, J. L. KAPUR
and A. K. SARKAR JJ.)
Preventive Detention-Order continuing such detention beyond
three months-Validity-Opinion of Advisory Board, if a pre-requisite
-'Such detention', meaning of-Constitution of India, Art. 22 (4)(a)
-Preventive Detention Act, 1950 (Act IV ofl960) as amended by the
amending Act of 1951 (No. of 1951), s. 11 (I)
The appellant was arrested under s. 3 of the Preventive
Detention Act, 1950 (IV of 1950) as amended by the amending Act
of 1951. The grounds of his detention were communicated to him
as required by s. 7 of the Act and his case was thereafter put up
before the Advisory Board constituted under s. 8 of the Act. The
Board reported that there was sufficient reason for his detention
and thereupon the Central Government acting under s. 11(1) of the
Act confirmed the order of detention and directed that such detention should continue for a period of twelve months from the date
of detention. The appellant challenged the validity of this order
by an application to the Punjab High Court under Art. 226 of the
Constitution for a writ
of habeas corpus and contended
that
sub-s. (I) of s.11 of the Act was constitutionally invalid as
it
contravened the provision of Art. 22(4) (a) of the Constitution. The
High Court found against him. The same point was canvassed in
appeal to this Court and it was contended that the expression
'such detention' occurring in sub-cl. (a) of cl. (4) of Art. 22 referred
to detention for a period longer than three months mentioned in
cl. (4) of the Article ands. 11 (!)of the Act, in so far as it permitted detention for more than three months without
a• specific
report from the Advisory Board that there was sufficient cause
for detention for more than three months, was ultra vires. It was
contended on behalf of the Union of India that the expression
'such detentiop.' referred to 'preventive detention~ occurring in
the first line of cl. ( 4) of Art. 22 and what an Advisory Board
contemplated by sub-cl. (a) of that clause was intended to do was
only to give its opinion as to whether there was suJlicient cause
for the detention itself and not as to the P,eriod of detention.
Held (per Bilagwati, Jafer Imam, S. K. Das and J. L.
Kapur J. J., Sarkar J. dissenting). The contention advanced on
behalf of the respondent was correct and the appeal must fail. The
expression 'sucn detention' in Art. 22 (4) (a) of the Constitution
refers
to prevemive detention and not to any period for which
suc;1 detention 3aou1tl continue and s. 11 (;) of the Preventive
Detention Act do'"' not contravene the provision of Act. 22 (4)(a)
of the Constitution.
S.C.R.
SUPREME COURT REPORTS
461
The true scope and effect of cl. (4) of Art. 22 must be judged
in the light of the entire scheme envisaged by Art. 22 and so
understood, it becomes clear that the Constitution could not have
intended that while the determination of the necessity of preventive detention should be left to the Executive, the determination
of the period for which such detention should continue should be
left to the Advisory Board.
In the very nature of things any
decision as to the period of such detention can be taken only by
the detaining authority upon which has been placed the responsibility for the detention. The reference to the Advisory Board is
intended to be a safeguard against any possible misuse of its power
by the Executive and affords a machinery for the review of its
decision on the basis of the representation made .by the detenu,
the grounds of detention or the report of any Officer who may
have passed the order, it is not a limitation on the Executive's
discretion as to the discharge of its duties connected with preventive detention.
A. K.
Gopalan v. The State of Madras, (1950) S.C.R. 88,
referred to.
An examination of the scheme of the Act shows that its
provisions are in conformity with the relevant provisions of the
Constitution. While the Act authorises. detention for more than
three months, it does provide for a reference of the order of detention to the Advisory Board and it is only after the Advisory Board
has made its report that the Government can fix the period of
detention under s. 11 (I) of the Act.
Makhan Singh Tarsikka v. State of Punjab, (1952) S.C.R . .368
and Dattatreya Moreshwar Pangarkar v. State of Bombay, (1952)
S.C.R. 612, referred to.
Held further, that where the appropriate authority refuses to
disclose any facts or particulars as to dates, persons and place, on
the ground that such disclosure would be against public interest,
under cl. (6) of Art. 22, the person in detention cannot be heard
to say, apart from the question of mala fides, that the grounds did
not disclose the necessary facts or particulars or that in the
absence of such facts or particulars he was not in ·a position to
make an effective representation. In the present case
the
grounds gave him a sufficient opportunity to make an effective
representation.
Lawrence Joachim Joseph D'Souza v. The State of Bombay,
(1956) S.C.R. 382 and State of Bombay v. Atma Ram Sridhar Vaidya,
(1951) S.C.R. 167, relied on.
The test of the mala fides of the Executive in passing, an
order of preventive detention is whether the Executive in making
such ·order was actuated by any ulterior purposes other than those
mentioned in the order of detention.
19~7
p,,,an1a1
Laklulllpal
v.
Union of India
19S7
Pllf'anla/
Loldtanpal
"·
Union of lndifl
462
SUPREME COURT REPORTS
[1958]
Per Sarkar, J.-The expression
'such
detention'
in
Art. 22(4)(a) of the Constitution means detention for a period
longer than three months a)ld cannot mean detention simpliciter.
The object of Art. 22(4) is to impose a limitation on the power
which the Parliament and the State Legislatures have,
under
Art. 246 of the Constitution, to enact laws for preventive detention by making such detention, where it is to be extended beyond
three months, dependent on the opinion of an Advisory Board.
There is nothing in the language of Art. 22(4) to show that
the safeguard the Constitution intended to provide by the opinion
of the Advisory Board is available in other cases of detention.
A. K. Gopalan v. The State of Madras, (1950) S.C.R. 88,
referred to.
It cannot be said that since the Act provides for the obtaining of the opinion of the Advioory Board as to the sufficiency of
the cause for detention, that opinion, in view of Art. 22(4) (a),
necessarily is as to the sufficiency of the cause for detention for
more than three months. Where the statute does not contain the
provision that the Advisory Board must report that in its opinion
there is a sufficient cause for. detention for more than three months,
as required by Art, 22 (4) (a) of the Constitution, the lacuna cannot
be deemed to be cured by implication. A statute which authorises
detention for a period longer than three months without making a
proVision that the opinion of the Advisory
Board must be
obtained that there is sufficient cause for detention for a period
longer than three months is to that extent invalid.
Makhan Singh Tarsikka v. The State of Punjab, (1952) S.C.R.
368 and Dattatreya Moreshwar Pangarkar v. The State of Bombay,
(1952) S.C.R. 612, considered.
CRIMINAL APPELLATI!
JURISDICTION : Criminal
Appeal No. 96 of 1957.
Appeal by special leave from the judgments and
orders dated September 24, 1956; of the Circuit Bench
of the Punjab High Court at Delhi and dated September 26, 1956, of the Punjab High Court at Chandigarh
in Criminal Writ No. 128-D of 1956.
Appellant in person.
C. K. Daphtary, Solicitor.General of India, and R. H.
Dhebar, for the respondent.
1957. May 24.
BY TIIE CoURT.-We dismiss the
appeal by a majority of 4 to 1 (A. K. Sarkar J.
dissenting) for reasons to be recorded later.
1957. September 17. The Judgment of Bhagwati,
Jafer Imam, S. K. Das and J. L. Kapur JJ.
was
s~c.R.
SUPREME COURT REPORTS
463
delivered by S. K. Das J. Sarkar J. delivered a separate
judgment.
S. K. Das J.-This is an appeal by special leave,
and the appellant is Puranlal Lakhanpal. On July 21,
1956, the Government of India in the Ministry of
Home Affairs passed an order of preventive detention
against the appellant in which it was stated, inter alia,
that with a view to preventing the appellant from
acting in a manner prejudicial to the security of India
and the relations of India with foreign powers, it was
necessary to make an order against the appellant. The
order then coiicluded-"Now, therefore, in exercise
of the powers vested in the Central Government by
cl. (a) (i) of sub-s. (1) of s.3 of the Preventive Detention
Act 1950 (Act No. IV of 1950), as amended, the
Central Government hereby orders that the said Shri
Puranlal. Lakhanpal,
son of Shri Diwan
Chand
Sharma, be detained."
The appellant was arrested and taken in custody on
the same date. On July 24, 1956, the
grounds of
detention were communicated to the appellant under
s. 7 of the Preventive Detention Act, No. IV of 1950,
hereinafter ref erred to as the Act. The case of the .
appellant was then sent to an Advisory Board constituted under s. 8 of the Act, and the Advisory Board
having reported that there was, in its opinion,
sufficient cause for detention of the appellant, the
Central Government confirmed the order of detention
on August 20,
1956, and stated further that the
appellant "shall continue in detention for a period of
twelve months from the date of his detention". This
order was passed under sub-s. (1) of s. 11 of the Act.
Before that date, however, .the appellant moyed the
Punjab High Court as also this Court challenging the
legality of his detention and aked for the issue of a
writ in the nature of writ of habeas corpus. The
petition to this Court was dismissed and as nothing
turns upon that petition, no further reference need be
made to it. In the petition to the Punjab High Court
under Art. 226 of the Constitution, the appellant was
um
p,,,lllllaJ
Lak/uznpaJ
. v •.
Union of India
S.K. D01 I.
'"1
Puranla/
Loklumpa/
Y.
U11ian of India
S.K. Da.r J.
464
SUPREME COURT REPORTS
(1958}
permitted to urge an additional ground to the effect
that sub-s. (I) of s. 11 of the Act was unconstitutional
inasmuch as it offended against Art. 22(4) (a) of the
Constitution. This constitutional point was referred to
and decided by a Division Bench of the Punjab High
Court by an order dated September 24, 1956. The
High Court held that sub-s. (1) of s. 11 of the Act was
neither repugnant to nor inconsistent with the provisions of Art. 22( 4) of the Constitution. A single
Judge of the High Court then dealt with the petition
of the appellant on merits and dismissed it by an
order dated September 26, 1956. The appellant then
moved the Punjab High Court unsucessfully for leave
to appeal to this Court. He then moved this Court,
and obtained special leave to appeal from the aforesaid
orders of the Punjab High Court dated September 24,
and September 26, 1956, respectively.
We heard the appellant, who argued his case in
person, on May 22, 23 and 24, 1957. At the conclusion of the arguments on the last day of the term
before the commencement of the vacation, we intimated to the appellant the majority decision of the Court
that his appeal was dismissed, but stated that reasons
for the decision would be given later. These reasons
we now propose to give in the paragraphs that follow.
The first and foremost point which the appellant
has urged in support of his appeal is the constitutional
point, that is, the validity of sub-s. (1) of s. 11 of the
Act. The argument of the appellant is that sub-s. (1)
of s. 11 of the Act does · not conform to the constitutional mandate given by sub-cl. (a) of cl.(4) of Art. 22
of the Constitution. Therefore, our primary duty is "to
lay the Article of the Constitution which is invoked
beside the statue which is challenged and to decide
whether the latter squares with the former". Article 22
of the Constitution, in so far as it is relevent for our
purposes, is in these terms:
"22. (1) ..................................... .
(2). . . . . . . . . . .
' ...................... .
13) Nothing in clauses (1) and(2) shall apply-
S.C.R.
. SUPREME COURT REPORTS
465
(a) to any person who for the time being is an
enemy alien; or
(b) to any person who is arrested or detained
under any law providing for preventive detention.
(4) No law providing for preventive detention shall
authorise the detention of a person for a longer period
than three months unless-
( a) an Advisory Board consisting of persons who
are, or have been, or are qualified to be appointed as
Judges of a High Court has reported before the expira-
, tion of the said period of three months that there is in
its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall
authorise the detention of any person beyond the
maximum period prescribed by any law made
by
Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with
the provisions· of any law made by Parliament under
sub-clauses (a) and (b) of clause (7).
(5) 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 aginst the order.
(6) Nothing in cluase (5) shall require the authority making any such order as is referred to in that
clause to.disclose facts which such authority considers
to be against the public interest to disclose.
(7) Parliament may by law prescribe-
(a) the circumstances under which, and the class
or classes of cases in which, a person may be detained
for a period longer then three months under any law
providing for preventive detention without obtaining
the opinion of an Advisory Board in accordance with
the provisions of sub-clause (a) of clause (4);
(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
(c) the procedure to be followed by an Advisory
Board in an inquiry under sub-clause (a) of clause (4)".
19'7
Pllranlal
Lak/ranpal
"·
Union of India
s:K. Dai J.
19$7
/'Ur ORI al
lakhanpal
••
Vnion of India
S.K. Das J.
466
SUPREME COURT REPORTS
[19581
Section 11 of the Act, which
is challenged
as
unconstitutional states :
"11. (1) In any case where the Advisory Board
has reported that there is in its opinion sufficient cause
for the detention of a person, the appropriate Government may confirm the detention order and continue
the detention of the person concerned for such period
as it thinks fit.
(2) In any case where the Advisory Board has
reported that there is in its opinion no sufficient cause
for the detention of the person concerned, the appropriate Government shall revoke the detention order
and cause the person to be
released forthwith."
Now, the point taken by the appellant is this. According to him, the expression 'such detention' occurring in
sub-cl. (a) of cl. 4 of Art. 22 refers not merely to
the original order of preventive detention but to the
detention of a person for a period longer than
three months;
therefore, the
Advisory
Board
when
it
makes
its
report
is required
under
the sub-clause to record its opinion that there is
sufficient cause not merely for the original order of
detention but also for detention of that person for a
period longer than three months. It is contended that
such an opinion was not recorded by the Advisory
Board in the present case, and sub-s. (2) of s. 10 of the
Act merely required the report of the Advisory Board
to specify its opinion as to whether or not there was
sufficient cause for the detention of the appellant.
The appellant's contention.is that sub-s. (1) of s. 11 of
the Act, in so far as it permits the appropriate Government to continue the detention of the person concerned
beyond a period of three months without a specific
report from the Advisory Board that there is sufficient
cause for his detention for more than three months, is
11/tra vires; because it does not conform to sub-cl. (a) of
cl. (4) of Art. 22, nor does it give effect to the true
meaning of the expression 'such detention' occurring
in the said sub-clause.
On behalf of the respondent, the argument is that
the expression 'such detention' occurring in sub-cl. (a)
S.C.R.
SUPREME COURT REPORTS
467
of cl. ( 4) of Art. 22 refers back to 'preventive detention'
occurring in the first line of cl. (4), and under the said
sub-clause the Advisory Board is to give its opinion as .
to whether there is sufficient cause for the detention of the person concerned; there is no duty cast on
the Advisory Board to determine the period of detention, and the failure of the Advisory Board to state in
its report that there is sufficient cause for the detention
of the person concerned for more than three months is
no violation of the constitutional mandate contained
in the said sub-clause.
We have to determine the correctness ot otherwise of
these rival contentions. No decision directly deciding
the point at issue has been brought to our notice.
There are, however, certain observations made
in
A.K. Gopalan v. The State of Madras (1), with regard
to the meaning and effect of sub-cl. (a) of cl. (4) of
Art. 22, to which a reference must now be made.
At page 117 of the report, Kania C.J, said :
"Article 22(4) opens with a d011ble negative. Put
in a positive form it will mean that a law which provides
fo:r preventive detention for a period longer than
three months shall contain a provision· ·establishing
an advisory board, [consisting of persons with the
qualifications mentioned in sub-clause (a)], and which
has to report before the expiration of three months if
in its opinion there was sufficientcause for such detention. This clause if it stood by itself and without
the remaining provisions of Article 22, will apply both
to the Parliament and the State Legislatures. The
proviso to this clause further enjoins ,that even though
the advisory board may be of the opinion that there
was sufficient cause for such detention, i.e., detention
beyond the period of three months, still the detention
is not to be permitted beyond the maximum period,
if any, prescribed by Parliament under Article 22(7)(b).
Again the whole of this sub-clause is made inoperative
by Art. 22(4)(b) in respect,of an Act of preventive
detention passed by Parliament under clauses (7)(a) and
(b). Inasmuch as the impugned Act is an Act of the
(lj [1950) S.C.R 88, I J 7.
60
1957
Puran/al
Lak/ranpal
v.
Union of India
S.IC. Das J.
19S7
Puronlal
Lalchanpal
v.
Union of India
S. K. Dtul.
468
SUPREME COURT REPORTS
[1958}
Parliament purported to be so made, clause 22(4) has
no operation and may for the present discussion be
kept aside."
His Lordship was considering the Act of 1950 previous
to the amendments subsequently made therein from
1951 onward, and the observations appear to establish
the. following three points: first, clause ( 4) of Art. 22,
put in affirmative form, has reference to a law which
provides for preventive detention and authorises
detention for a period longer than three months;
second, the expression 'such detention'
has
again
reference to such a law providing for detention beyond
a period of three months; and lastly, cl. (4) of Art. 22
had no application to the Act of 1950 as it then stood.
We shall presently show that the first and the second
points do not really support the appellant's contention
and the last had particular reference toss. 9 and 12 of
the Act of 1950, as it then stood. The appellant has,
however, pointed 9ut that under the Act as it now
stands, every order of detention has to be placed before
the Advisory Board (s. 9 of the Act) and the Advisory
Board has to report ab6ut ev~ry order of detention
(s. 10 of tI:ie Act). Though under s. llA of the Act the
maximum period for which any person may be detained
in pursuance of a detention order which has been
confirmed under s. 11, is twelve months from the date
of detention, the Act now contains no provisions as to
the circumstances under which, or the class or classes
of cases in which, a person may be detained for a
period longer than three months without obtaining
the opinion of the Advisory Board; therefore, the
argument of the appellant is that the last point made
by the observation of Kania C.J. is no longer valid
in view of the amendments made in the Act of 1950.
We have proceeded. in this case on the footing that
sub-cl. (a) of cl. (4) of Art. 22 applies to the Act as it
stands after the amendments, and even on that footing
there is, in our opinion, no inconsistency between that
sub-clause and the impugned provisions of the Act, aa
we shall presently explain.
In his dissentient judgment in Gopalan's case (supra),
Fazl Ali J., made the following observations with
S.C.R.
SUPREME COURT REPORTS
469
regard to cl. (4) of Art. 22. Said his Lordship at pages
170 and 171 of the report :
"In connection with the first Faint, the ques~ion
arises as to the exact meaning o the words 'such
detention' occurring in the end of Clause (4)(a). Two
alternative interpretations were put forward : (1) 'such
detention'
means
preventive detention; (2) 'such
detention' means detention for a period longer than
three months, If the first inter,Pretation is correct,
theii the function of the Advisory Board would be to
go into the merits of the case of each person and
simply report whether there was sufficient cause for
his detention. According to the other interpretation,
the function of the Advisory Board will be to report to
the Government whether there is sufficient cause for
the person being detained for more than three months.
On the whole, I am inclined to agree with the second
interpretation. Prima facie, it is a serious matter to
detain a person for a long period (more than three
months) without any enquiry or trial. ·But article
22(4) (a) provides that such detention may be ordered
on the report of the Advisory Board. Since the report
must be directly connected with the object for which
it is required~ the safeguard. provided by the article,
viz., calling tor a report from the Advisory Board,
loses its value, if the Advisory Board is not to apply
its mind to the vital question before the Government,
namely, whether prolonged detention (detention for
more than three months) is justified or not. Under
article 22 (4) (a), the Advisory Board has to submit its
report before the expiry of three months and may
therefore do so on the eighty-ninth day.
It would be
somewhat farcical to provide, that after a man has
been detained for eighty-nine days, an Advisory Board
is to say whether his initial detention was justified.
On the other hand, the determination of the question
whether prolonged detention (detention for more than
three months) is justified must necessarily involve the
determination of the question whether the detention
was justified at all, and such an interpretation only
can give real meaning . and effectiveness
to
the
provision. The provision being in the nature of a
19S7
Pur1111fal
Laklumpa/
v.
Union of Indio
S.K. Da:J.
19,7
Pwtm/al
LakhanpaJ
v.
Unian of lltliia
S.K. D08 l.
470
SUPREM~ COURT REPORTS
[19S8J
protection or safeguard, I must naturally lean towards
the interpretation which is favourable to the subject
and which is also in accord with the object in view."
These observations, it is urged, support the appellant's
contention.
Patanjali Sastri J. (as he then was) took a view
different from that of Faz! Ali J. in Gopa/an's case
(supra), and made the following observations at
pages 209 and 210 of the report:
"It was argued that the words 'sufficient cause for
such detention in sub-clause (a) of clause (4) had
reference to the detention beyond three months mentioned in clause (4) and that this view was supported
by the l;mguage of sub- clause (a) of clause (7) whereby
Parliament is authorised to prescribe the circumstances
under which and the class or classes of cases in which
a person may be detained for a period longer than
three months without the opinion of an Advisory
Board. In other words, learned counsel submitted,
the combined effect of clauses (4) and (7) was that no.
person could be detained
for a period over three
months without obtaining the opinion of an Advisory
Board that there was sufficient cause for detention for
the ·Jonger period, except in cases where Parliament
passed a law authorising detention for such period
even without the opinion of an Advisory Board. Thus,
these two clauses were concerned solely with the
duration of the preventive detention, and so was the
Advisory Board which those clauses provided for that
purpose. I am unable to accept this view. I am
inclined to think that the words 'such detention' in
sub-clause (a)· reler back to the preventive detention
mentioned in clause (4) and not to detention for a
longer period than three months. An Advisory Board,
composed as it.has to be of Judges or lawyers, would
hardly be in a position to judge how long a person
under preventive detention, say, for reasons co.nnected
with defence, should be detained. That must be a
matter for the executive authorities, the Department
of Defence, to determine, as they alone are responsible
for the defence of the country and have the necessary
data for taking a decision on the point. All that an
S.C.R.
SUPREME COURT REPORTS
471
Advisory Board can reasonably be asked to do, as a
safeguard against the misuse of the power, is to judge
whether the detention-._ is justified and not arbitrary
or ma/a fide. The fact that the Advisory Board is
required to make its report before the expiry of three
months and so could. submit it only a day or two
earlier cannot legitimately lead to an inference that
the Board.was solely concerned with the issue whether
or not t.he detention should continue beyond that
period. Before any such tribunal could send
in its
report a reasonable time must elapse, as the grounds
have to be communicated to the person detained, he
has to make his representation · to the detaining
authority which has got to be placed before the Board
through the appropriate departmental channel. Each
of these steps may, in the course of official routine,
take some time, and three months' period might well
have been thought a reasonable period to allow before
the Board could be required to submit its report."
These observations are undoubtedly against
the
contention of the appellant.
It is necessary to consider the whole scheme of Art.
22 in order to appreciate the true scope and effect of
cl. (4). Article 22 provides for protection against
arrest and detention in certain cases. Clauses (1) and
(2) refer to arrest and detention in certain circumstances and provide for certain safeguards. Clause (3)
. then states, inter alia, tJ;iat nothing in els. (0 and (2)
shall apply to any person who is arrested or detained
under any law providing for "preventive detention";
in other words, a law relating to "preventive detention" is put in a special category and is dealt with in
claqses (4) to (7). The power to legislate laws of
preventive detention is given to Parliament and the
State Legislatures by the Constitution. This power,
however, is not absolute, but is controlled by the provisions of els. (4), (5), (6) and (7) of Art. 22. ·The
maximum period of detention is not prescribed by the
Constitution, but Parliament may by law ·prescribe
such a period. The Constitution contemplates that
any law which authorises detention for more than
three months should be subject to certain safeguards,
l9S7
Ptrran/al
LokliatrpaJ
v.
Unlo11 of 111/Jia
S.K. Du J.
1957
Pmanlal
Ltlkhanpal
v.
Union ofllftilo
ti.K. Dasi.
472
SUPREME COURT REPORTS
[1958]
as provided in cl. ( 4) of Art. 22 which directs that the
case of a detained person under any law authorising
detention for more than three months must be the
subject of a report by an Advisory
Board. The
Advisory Board is to report whether there is sufficient
cause for such detention. If the Advisory Board
reports that the detention is justified then only the
detaining authority determines the period of detention.
On the other hand, if the Advisory Borad reports that
the detention is not justified, the detained person
must be released.
Clause (4) of Art. 22 does not state
that the · Advisory Board has to determine whether
the person detained should be detained for more than
three months. What it has to determine is whether
the detention is at all justified. The setting up of an
Advisory Board to determine whether such detention
is justified is considered as a sufficient safeguard
against arbitrary detention under any law of preventive detention which authorises detention for more
than three months. The matter before the Advisory
Board is the
subject 0£. detention of the
person
concerned and not for how Jong he should be detained.
Clause (7) of Art. 22 is an exception to cl. (4) of that
Article. It authorises Parliament alone to pass a law
of preventive. detention authorising detention
of a
person for more than three months without obtaining
the opinion of an Advisory Board so long as the
circumstances under which and the class or classes of
cases in which a person may be detained for a longer
period than for three months are set out in the enacted
law.
The Constitution evidently does not contemplate
detention of the person for a period of three months
or less as sufficiently serious to have the safeguard of
a report by an Advisory Board to the effect that there
is sufficient cause for detention.
Under the Constitution an Advisory Board is to be set up for all cases of
detention ll\ld.er a law authorising detention for more
than three months. When.. the case of a detained
person is placed before the Advisory Board under such
law it must be assumed that the Advisory Board
knows that if it reports that the detention is justified,
the cletenu may be detained
for more than three
S.C.R.
SUPREME COURT REPORTS
473
months and up to the maximum period provided by
the law. The expression "such detention" in Art.
22(4)(a) refers to preventive detention and not to how
long the person is to be detained.
Moreover, it is clear that clause (4) lays down a
prohibition against any Jaw providing for detention
for more than three months without a provision for
_an Advisory Board, and cl. (5) provides for furnishing
the grounds of detention and affording an opportunity
of making a representation against the order of
detention. But these safeguards are subject to els. (6)
and (7). Under the former, facts, the disclosure of
which the detaining authority considers against the
public interest, are not required to be furnished.
Under the latter, Parliament may prescribe the
circumstances under and the class or classes of cases
in which a person may be detained for a period longer
than three months without ootaining the opinion of an
Advisory Board. The Constitution has therefore in
one case given discretion to the
Executive not to
furnish facts in certain circumstances and in the other
case left it to Parliament to prescribe cases or classes
of cases in which reference to the Board need not be
made. Therefore, both the furnishing of grounds and
the report of the Board are, in a sense, limited
safeguards. Considering the circumstance that the
detention is of a preventive nature, the Executive has
necessarily to consider whether a persdn should be
detained and the period for which he should be
detained. It could not have been the intention to give
the power of determining the necessity of detention of
a particular person to the Executive, and leave to
another authority-the Board in this case-to say
whether the detention should be for three months or
more. In the very nature of things the decision as to the
period of detention must be of the detaining authority,
because it is the authority upon which responsibility
for detention has been placed. The reference to the
Board is only a safe~ard against Executive vagaries
and high-handed action and is a machinery devised by
the Constitution to review the decision of the Executive
M2SCIV-2
1957
Puranlaf
Lakhanpal
v.
Union of India
S. K. Das J.
19S7
Puranla/
Lakhanpal
v.
Union of India
S.K. Das J.
·474
SUPREME COURT REPORTS
[1958]
on the basis of a representation made by the detenu,
the grounds of detention, and where the' order is by
an officer, the report of such officer. It is not a
limitation on the Executive's discretion as to the
discharge of its duties connected with preventive detention ; it is a safeguard against misuse of power.
What then is
the scheme of the Act under our
consideration ? An order of detention is made under
s. 3 of the Act. If the order is made by any officer
under sub-s. (2) of s. 3 a report has to be submitted to
the State Government to which the officer is subordinate and the order does not remain in force for
more than twelve days unless in the meantime it has
been approved by the State Government. Under s. 7
of the Act, the grounds of detention have to be communicated to the detenu, as soon as may be
but
not later than five days from the date of detention.
Section 8 relates to the .constitution of an Advisory
Board. Under s. 9 in every case where a detention
order has been made under the Act, the appropriate
Government shall, within thirty days from the date of
detention under the order, place before the Advisory
Board the grounds on which the order has been made
and the representation, if any made by the detenu.
Section 10 prescribes the procedure of the Advisory
Board and lays down that the Advisory Board must
submit its report to the appropriate Government
within ten weeks from the date of detention. Sub-s. (2)
of s. 10 states that the report of the Advisory Board
shall specify in a separate part thereof the opinion of
the Advisory Board 11s to whether or not there is
sufficient, cause for the detention of the person concerned. Then comes s. 11 which we have already quoted
in extenso. The scheme of the Act has been explained
in several decisions of this Court. In Makhan Singh
Tarsikka v. State of Punjab ('), it was stated that
whatever might be the position under the Preventive
Detention Act of 1950, before it was amended in 1951,
under the Act as amended in 1951, the Government
must determine what the period of detention should
be only after the Advisory Board to which the case
(r) (1952] S.C.R. 368, 370.
S.C.R.
SUPREME COURT REPORTS
475
is referred reports that the detention is justified.
Patanjali Sastri C. J. observed:
"It is, therefore, plain that it is only after the
Advisory Board, to which the case has been referred,
reports that the detention is justified, the Government
should determine what the period of detention should
be and not before. The fixing of the period of detention in the initial order itself in the present case was,
therefore, contrary to the scheme of the Act and cannot be supported."
In Dattatreya Moreshwar Ppngarkar v. State
of
Bombay (1) Mukherjea J. (as he then was) said :
"It is now settled by a pronouncement of this
Court that not only it is not necessary for the detaining authority to mention the period of detention
when passing the original order under s. 3(1) of the
Preventive Detention Act, but that the order would
be bad and illegal if any period is specified, as it might
prejudice the case of the detenu when it goes up for .
consideration before the
Advisory Board.
The
Advisory Board again has got to express its opinion
only <;>n the point as to whether there is sufficient
cause for detention of the person concerned. It is
neither called upon nor is it competent to say anything
regarding the period for which such person should be
detained. Once the Advisory Board expresses its view
that there is sufficient cause for detention at the date
when it makes its report, what action is to be taken
subsequently is left entirely to the appropriate
Government and it can under s. 11(1) of the Act
'confirm the detention order and continue the detention of the person concerned for such period as it
thinks fit'. In my opinion, the words 'for such period
as it thinks fit' presuppose and imply that after
receipt of the report of the Advisory Board the detaining authority has to make up its mind as to whether
the original order of detention should be confirmed and
if so, for what further period the detention is to con~
tinue. Obviously, that is the proper stage for making
an order or decision of this description as the
(1) (19,52] S.C.R. 612, 626.
61
1957
Pur011/a/
Lakftairpal
...
Union of India
S. K. Das/.
1957
Puron/41
Lakhtmpal
••
Union of India
S.K. Da1 J.
476
SUPREME COURT REPORTS
[1958]
investigation with regard to a particular detenu such as
is contemplated by the Preventive Detention Act is
then at an end and the appropriate Government is in
full possession of all the materials regarding him."
At page 637 of the report, the learned Judge further
said :
"Under the Constitution, the detention of
a
person under any law providing for preventive detention cannot be for a period of more than three months
unless the Advisory Board is of the opinion that there
is· sufficient cause for the detention of the person
concerned. The Constrtution itself has specified the
maximum limit of the initial detention and detention
for a period longer than three months can only be
made on the basis of the report of the
Advisory
Board."
In view of these observations, it is quite clear what
the scheme of the Act is. The Act authorises
a
possible detention of more than three months ; the
order of detention is therefore referred to the Advisory
Board, and it is only when the Advisory Board makes
its report that the appropriate Government fixes the
period of detention under sub-s. (1) of s. 11 of the Act.
For all these reasons, we hold that sub-s. (1) of s. 11
of the Act does not contravene any of the provisions
of Art. 22 and is accordingly valid.
We now proceed to give our reasons with regard to
those points on merits which have been urged before
us by the appellant. The appellant has contended
that the grounds of detention communicated to him are
all vague, except ground No. 2, and that the grounds
so communicated did not give him an opportunity of
making an effective representation, a right guranteed
to him under cl. (5) of Art. 22. The grounds except
ground No. 2 were these :
"I. That since the last two years you are in
constant touch with foreign correspondents in India
and representatives of foreign countries to whom you
have been spreading reports and information about
-conditions in the State of Jammu and Kashmir which
.are false and calculated to prejudice the relaiions of
S.C.R.
SUPREME COURT REPORTS
477
India with foreign powers and also to prejudice the
security of the State.
............................................
3. That you are in constant touch with certain
persons in Pakistan and Pakistani occupied part of
Jam.mu and Kashmir who are hostile to India and you
are assisting these persons in their activities which
are prejudicial to the security of India.
4. That you are receiving financial assistance
from persons in Pakistan and Pakistani occupied
part of J ammu and Kashmir for supporting
and
furthering your aforesaid prejudicial activities.
5. That you are in regular connection
with
persons in India who are engaged in promoting false
propaganda against India in relation to Kashmir and
have been attending their secret meetings for planning
action and propaganda in relation to Kashmir prejudicial to the security of India.
6.