# S.M.D. KIRAN PASHA v. GOVERNMENT OF ANDHF.A PRADESH AND ORS

- **Citation:** [1989] Supp. 2 S.C.R. 105
- **Court:** Supreme Court of India
- **Decided:** 1989-11-09
- **Case number:** Criminal Appeal No. 702 of 1989
- **Bench:** K.N. Saikia, M. Fathima Beevi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-m-d-kiran-pasha-v-government-of-andhf-a-pradesh-and-ors-10360
- **Pages:** 19

## Headnote

Constitution of India, 1950: Articles 32 & 226-Life and personal
liberty-Right to--'Enforcement' of right in Court-Whether Court can
insist that person surrenders and then files habeas corpus petition-Post
violation resort and pre violation of protection-Distinction between.
A
B
The appellant is a Municipal Councillor of the Cuddapah MuniciC
pal Council. He was elected to the Council as an independent candidate.
According to him, he enjoys popularity in his area and had previously
held important positions in the District. He states that the local leadership of the ruling Telugu Desam Party having failed to woo him into
their fold, he was pressurised through the Excise and Police authorities D
foisting false cases upon him. Scenting a move to detain him under the
provisions of the Andhra Pradesh Prevention of Dangerous Activities of
Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic
Offenders and Land Grabbers Act, 1986, the appellant filed a writ
petition on 6.6.1988 in the High Court, averring in.ter alia that the
successive actions initiated against him were a part of political vendetta.
E
A learned Single Judge on 8.8.1988 was pleased to direct interim the
respondents not to take the appellant into preventive custody for a
period of 15 days on the basis of the cases already registered. However,
on 10.6.1988 the appellant was served the detention order dated
3.6.1988 as well as the grounds of detention, and he was taken into
custod~, but was released after four days.
F
The appellant filed on 25.6.1988 in his pending writ petition a
miscellaneous petition, as an additional affidavit. He assailed therein
the order of detention on various grounds. A Division Bench of the High
Court, on reference by the learned Single Judge, held that the prayer in
the writ petition had become infructuous, and that there were no extraG
ordinary or special reasons to depart from the normal rule, namely,
that in such a case the appellant should first surrender and move for a
writ of habeas corpus. The Division Bench accordingly, dismissed the
writ petition.
B.Core this Court it was inter alia contended on behalf of the
H
105
106
SUPREME COURT REPORTS
[ 1989] Supp. 2 S.C.R.
appellant that the High Court erred in holding that there were no
extraordinary circumstances or special reasons to depart from the
normal role, thereby refusing to grant relief to the appellant against
infringement of his fundamental right to liberty; that the detention
order having not been approved by the State Government as required
nuder Section 3(3) of the Prevention of Dangerous Activities Act and the
appellant's case having not been placed before the Advisory Board as
required under section IO thereof, the detention order ceased to be in
force and hence was liable to be quashed.
On behalf of the respondent, it was contended that the detention
order having been passed before the writ petition was filed, the High
Court was right in dismissing the writ petition following the court's
practice and procedure, and that there were no extraordinary or special
reasons to depart from the normal role inasmuch as granting relief at
such a stage would defeat the very purpose of the Act. Counsel, however, could not deny that the detention order was not approved by the
State Government and that the appellant's case was not placed before
the Advisory Board.
Allowing the appeal and quashing the order of detention, this
Court,
HELD: (1) The position of a person who is actually under illegal
detention and of a person who is in imminent jeopardy of illegal detention are not far dissimilar. Refusal to interfere in such a case may
amount to denial of the fundamental righ itself. I 114A]
Jayantital Bhagwandas Shah v. The State of Maharashtra, [1981]
I Cr. L.J. 767, referred to.
(2) There could be no reason why in an exceptional and rare case,
detention order already made, and either served or yet to be served,
and the person is still free, could not be legally brought under
challen

## Text

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S.M.D. KIRAN PASHA
v.
GOVERNMENT OF ANDHF.A PRADESH AND ORS.
NOVEMBER 9, 1989
[K.N. SAIKIA AND M. FATHIMA BEEVI, JJ.]
Constitution of India, 1950: Articles 32 & 226-Life and personal
liberty-Right to--'Enforcement' of right in Court-Whether Court can
insist that person surrenders and then files habeas corpus petition-Post
violation resort and pre violation of protection-Distinction between.
A
B
The appellant is a Municipal Councillor of the Cuddapah MuniciC
pal Council. He was elected to the Council as an independent candidate.
According to him, he enjoys popularity in his area and had previously
held important positions in the District. He states that the local leadership of the ruling Telugu Desam Party having failed to woo him into
their fold, he was pressurised through the Excise and Police authorities D
foisting false cases upon him. Scenting a move to detain him under the
provisions of the Andhra Pradesh Prevention of Dangerous Activities of
Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic
Offenders and Land Grabbers Act, 1986, the appellant filed a writ
petition on 6.6.1988 in the High Court, averring in.ter alia that the
successive actions initiated against him were a part of political vendetta.
E
A learned Single Judge on 8.8.1988 was pleased to direct interim the
respondents not to take the appellant into preventive custody for a
period of 15 days on the basis of the cases already registered. However,
on 10.6.1988 the appellant was served the detention order dated
3.6.1988 as well as the grounds of detention, and he was taken into
custod~, but was released after four days.
F
The appellant filed on 25.6.1988 in his pending writ petition a
miscellaneous petition, as an additional affidavit. He assailed therein
the order of detention on various grounds. A Division Bench of the High
Court, on reference by the learned Single Judge, held that the prayer in
the writ petition had become infructuous, and that there were no extraG
ordinary or special reasons to depart from the normal rule, namely,
that in such a case the appellant should first surrender and move for a
writ of habeas corpus. The Division Bench accordingly, dismissed the
writ petition.
B.Core this Court it was inter alia contended on behalf of the
H
105
106
SUPREME COURT REPORTS
[ 1989] Supp. 2 S.C.R.
appellant that the High Court erred in holding that there were no
extraordinary circumstances or special reasons to depart from the
normal role, thereby refusing to grant relief to the appellant against
infringement of his fundamental right to liberty; that the detention
order having not been approved by the State Government as required
nuder Section 3(3) of the Prevention of Dangerous Activities Act and the
appellant's case having not been placed before the Advisory Board as
required under section IO thereof, the detention order ceased to be in
force and hence was liable to be quashed.
On behalf of the respondent, it was contended that the detention
order having been passed before the writ petition was filed, the High
Court was right in dismissing the writ petition following the court's
practice and procedure, and that there were no extraordinary or special
reasons to depart from the normal role inasmuch as granting relief at
such a stage would defeat the very purpose of the Act. Counsel, however, could not deny that the detention order was not approved by the
State Government and that the appellant's case was not placed before
the Advisory Board.
Allowing the appeal and quashing the order of detention, this
Court,
HELD: (1) The position of a person who is actually under illegal
detention and of a person who is in imminent jeopardy of illegal detention are not far dissimilar. Refusal to interfere in such a case may
amount to denial of the fundamental righ itself. I 114A]
Jayantital Bhagwandas Shah v. The State of Maharashtra, [1981]
I Cr. L.J. 767, referred to.
(2) There could be no reason why in an exceptional and rare case,
detention order already made, and either served or yet to be served,
and the person is still free, could not be legally brought under
challenge. [114F]
Vedprakash Devkinandan Chiripal v. State of Gujarat, AIR 1987
Gujarat 253.
A.K. Gopalan v. State of Madras, AIR 1950 SC 27; Addi. District
Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, referred
to.
A
B
c
D
E
F
G
H
S.M.D. KIRAN PASHA v. GOVT. OF. A.P.
107
(3) For enforcement of one's right to life and personal liberty
resort to Article 226(1) has been provided for. The word 'enforcement'
has also been used in Article 32 of the Constitution which provides
the remedy for enforcement of rights conferred by Part III of the
Constitution. The word 'enforcement' has not been defined by the
Constitntion. [llSB]
(4) 'Enforce' means to compel obedience to laws; to compel
performance, obedience by physical or moral force. [I !SC]
(5) Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that
right, that is to say, not to act or to do anything which would amount to
infringement of that right, except in accordance with the procedure
prescribed by law. I 115F I
( 6) Resort to Article 226 after the right to personal liberty is
already violated is different from the pre-violation protection. Postviolation resort to Article 226 is for remedy against violation and for
restoration of the right, while pre-violation protection is by compelling
observance of the obligation or compulsion under law not to infringe the
right by all those who are so obligated or compelled. To surrender and
apply for a writ of habeas corpus is a post-violation remedy for restoration of the right which is not the same as restraining potential violators
in case of threatened violation of the right. ll16B-C]
(7) Law surely cannot take action for internal thoughts but can
act only after overt acts. If overt acts towards vioiation have already
been done and the same has come to the knowledge of the person
threatened with the violation and he approaches the court under Art.
226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the court call npon those
alleged to have taken these steps to appear and show cause why tlley
should not be restrained from violating that right? [II6C-D]
A
B
c
D
E
F
(8) The difference of the two situations have different legal
significance. If a threatened invasion of a right is removed by restrainG
ing the potential violator from taking any steps towards violation, the
rights remain protected and the compulsion against its violation is
enforced. If the right has already been violated, what is left is the
remedy against such violation and for restoration of the right. [ II6F-G I
(9) In the instant case, the appellant's fundamental right to H
108
SUPREME COURT REPORTS
[1989] Supp. 2 S.C.R.
A liberty is the rellex of a legal obligation of the rest of the society, including the State, and it is the appellant's legal power bestowed upon him to
bring about by a legal action the enforcement of the fulfilment of that
obligation existing towards him. Denial of legal action would, therefore,
amount to denial of his right of enforcement of his right to liberty. A
B
petition for a writ of habeas corpus would not be a substitute for this
:enforcement. [1200-E]
K.K. Kochunni v. The State of Madras and Ors., [1959] Su~p. 2
•.
SCR 316; Special Reference No. 1 of 1964, [1965] 1 SCR 413; M. C.
Mehta v. Union of India, [1987] 1SCC395, referred to.
C
(10) As the detention order was already passed and served' and
the detenu was already taken into custody during the pendency of the
writ petition, these subsequent events having being brought to the
notice of the court by a Misc. application iu the form of additional affidavit, the safue ought to have been dealt with by the High
D
Court. ,[113A-B]
(11) The detention order had not been approved by the State
Government within 12 days of its being made, as enjoined under .subsection (3) of section 3 of the Act. The result is that the order could not
remain in force more than 12 days after making thereof and as such
must be treated as to have ceased to be in force and non-existent
E
thereafter, [122A]
(12) Even though the detenu was released, if the detention order
was in force, his case was required to be placed before the Advisory
Board. This being a mandatory provision and having not been complied
with, the detention order even if otherwise in force, cannot be said to
p
have been in force after three weeks. [122H; 123A]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 702 of 1989.
From the Judgment and Order dated 4.7.1988 of the Andhra
G Pradesh High Court in W.P. No. 8610 of 1988.
M.C. Bhandare and Ms. C.K. Sucharita for the Appellant.
Ganesh, S. Muralidhar, T.V.S.N. Chari and Raghltv for the
H Respondents.
-
-
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. [SAJKJA, J.]
109
The Judgment of the Court was delivered by
K.N. SAIKIA,J, Special leave granted.
This appeal is from the Judgment and Order of the High Court of
Andhra Pradesh at Hyderabad dated 4.7.1988 passed in Writ Petition
No. 8610 of 1988.
The appellant states that he enjoys popularity in his area and
that he previously held several important positions in the Cuddapah
District of Andhra Pradesh, such as organising Secretary of the
Andhra Pradesh Congress Committee for several years, a Municipal
Councillor from 1982 to 1986 and a Vice-Chairman of Cuddapah
Municipal Council. According to him in Deceinber 1985 he was
elected as a Chairman of the Cuddapah Municipal Council for its
residuary term and in March 1987 he was elected to the Municipal
Council as an independent candidate defeating the Telugu Desam and
Congress {I) candidates by a large margin. It is his case that the local
leadership of the ruling Telugu Desam Party having failed to woo him
into their fold he was pressurised through the Excise and Police
authorities foisting false cases upon him. On 13.11.1987, the police
having summoned him to the Police Station for taking his photograph
as was done in case of criminals, he moved the Andhra Pradesh High
Court by Writ Petition No. 79038 of 1987 and the High Court was
pleased to issue directions as prayed for, by its order dated 17 .12.1987.
Thereafter the excise authorities are stated to have registered some
cases against the appellant who applied for and was granted bail on
10.5 .1988 rejecting the Excise authorities' prayer for custody. Scenting
a move to detain the appellant under the provisions of the Andhra
Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits,
Drug Offenders, Goondas, Immoral· Traffic Offenders and Land
Grabbers Act, 1986, hereinafter referred to as 'the Act', the appellant
filed Writ Petition No. 8610 of 1988 on 6.6.1988 in the Andhra Pradesh
High Court averring, inter alia, that the successive actions initiated
against him were a part of political vendetta. A learned Single Judge
on 8.6.1988 was pleased to direct interim the respondents not to take
the appellant into preventive custody for a period of 15 days on basis
of the cases already registered. However, on 10.6.1988 the appellant
was served the detention order in S.No. 7/1988 dated 3.6.1988 as well
as the grounds of detention; and he was taken into custody and
detained in Secunderabad jail, but was released after four days. The
detention order stated that with a view to preventing him from acting
in a manner prejudicial to the maintenance of public order, it was
A
B
c
D
E
F
G
H
110
SUPREME COURT REPORTS
[ 1989] Supp. 2 S.C.R.
A necessary to make an order directing that "he shall be detained." The
grounds of detention as served upon the appellant contained altogether 13 grounds ranging a period from 23.11.1974 to 7.5.1988.
B
c
D
E
F
The appellant filed on 25.6.1988 in his writ petition a miscellaneous petition being W.P.M.P. S.R. No. 51830, as an additional
affidavit, stating, inter alia, that the wri( petition was filed by him
seeking a direction to the respondents to refrain from making an order
detaining him under the provisions of the Act and the same was admitted and interim direction issued. But thereafter the detention ord~r in
S.No. 7 of 1988 dated 3.6.1988 was served on him on 10.6.1988 and,
therefore, he submitted the additional affidavit with reference to the
impugned order of detention. He assailed therein the grounds of
detention as vague, stale, non-existent and, in any case, irrelevant
bearing no reasons for the decision that his detention was necessary to
prevent him from acting in a manner prejudicial to the maintenance of
public order. He also assailed the order on grounds of non application
of mind by the respondent No. 2 and absence of nexus between the
grounds and maintenance of public order and of non-disclosure of any
rational basis for formation of such an opinion. He refuted and denied
each of the 13 grounds and prayed that the writ petition be amended
by substituting the prayer so as to issue a writ, order or direction and
more particularly one in the nature of writ of mandamus declaring
1the
order of the Collector and District Magistrate respondent No. 2 herein
in S.R. No. 7 of 1988 dated 3.6.1988 made under Act 1 of 1986 as
illegal and void and to pass such other orders as are necessary in the
interests of justice. Admittedly no specific order was passed on this
miscellaneous petition. It appears that a Counter Affidavit was filed in
the writ petition on behalf of the respondents and the appellant filed a
reply affidavit thereto.
A Division Bench of the High Court of Andhra Pradesh on reference by the learned Single Judge heard the writ petition analogously
with another writ petition and observing, inter alia, that as an order of
detention was made even before the writ petition was filed, held that
the prayer in the writ petition had become infructuous; and that there
G
were no extraordinary or special reasons to depart from the normal
rule, namely, that in such a case the appellant should first surrender
and move for a writ of habeas corpus, and accordingly dismissed the
writ petition.
Mr. M.C. Bhandare, the learned counsel for the appellant s11bH
mits, inter alia, that the High Court erred in dismissing the appellant's
{
l
{
-
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. [SAIKIA, J.)
111
writ petition holding that there were no extraordinary circumstances
A
or special reasons to depart from the normal rule that the appellant in
such a case should first surrender and then move a petition for habeas
corpus thereby refusing to grant relief to the appellant against infringement of his fundamental right to liberty; and that the grounds of detention were vague, irrelevant, stale and non-existent having no relation
to the stated purpose of detention, and there was ma/a fide exercise of
B
power and complete non-application of mind on the part of the detain-
•
ing authority for which the grounds of detention ought to have been
rejected and the detention order set aside. Counsel relies on a decision ,
)
of the Bombay High Court reported in 1981(1) Cr!. L.J. 767 and one of
the Gujarat High Court since reported in AIR 1978 Gujarat 253.
Counsel further submits that the detention order having not been c
approved by the State Government as required under section 3(3) of
the Act and the appellant's case having not been placed before the
Advisory Board as required under section 10 the detention order
ceased to be in force and hence is liable to be quashed.
Mr. M.S. Ganesh, the learned counsel for the respondents subD
mits that the detention order having been passed before the writ petition was filed, the High Court was right in dismissing the same following the court's practice and procedure; and that there were no extraordinary or special reasons to depart from the normal rule inasmuch as
granting relief at such a stage would defeat the very purpose of the
Act. Counsel however, could not deny that the detention order was
E
not approved by the State Government and that the appellant's case
was not placed before the Advisory Board.
The first question to be decided therefore, is whether the mgh
Court was right in dismissing the writ petition holding that the rule or
practice of the High Court in such a case was to interfere only where
F
there were> extraordinary or special reasons and otherwise to leave the
appellant to first surrender and then move a petition for habeas
corpus.
From a perusal of the Judgment of the High Court it appears that
it analysed the question of maintainability of the writ petition from two
G
view points, namely, of the High Court's power, and the High Court's
rule or practice. The High Court correctly analysed the power of the
High Court to interfere in such a case under Article 226 of the
Constitution of India concluding that the High Court had power to
interfere. While tracing the High Court's evolving rule or practice, the
Bench took the view that it was but appropriate and proper that the
H
112
SUPREME COURT REPORTS
[1989] Supp. 2 S.C.R.
A court evolved and followed a practice and procedure where it would
not ordinarily entertain a challenge to a preventive detention unless
the person concerned submitted himself to the order and not to
encourage persons against whom orders of preventive detention were
made by the competent authority under a valid enactment to avoid the
process of law and at the same time seek the protection of law from
B this Court. Relying on several decisions of its own, the Court observed:
c
D
"There is no presumption that any and every order of
detention is bad. The normal rule shall therefore be "surrender to the order first and then approach this Court."
Only in extraordinary cases, where it appears that the State
is exercising its power under a preventive detention statute
for an oblique purpose, or in an outrageous and/or vindictive manner, or where the order of detention is ex facie
invalid, would this Court depart from this rule. Now, what
would be such extraordinary case cannot and, indeed,
should not be defined or specified. It is better left to the
sound judgment and decision of this Court."
'
The High Court on facts of the appellant's writ petition, observed that the allegations that the entire administrative machinery was
being misused by the local MLA who happened to be a Cabinet Minister to hound the appellant and that the Collector and District MagisE Irate was being used as a tool were not correct and, therefore, said:
F
"Once we are of the opinion that there are no extraordinary or special reasons to depart from the normal rule,
we will not look into or examine the relevance or correctness of the grounds as we would do in a writ of habeas
corpus."
'
The writ petition was accordingly dismissed.
Mr. Bhandare submits that when the appellant's fundamental
right to liberty was threatened through the machination of a detention
G order, he approached the High Court for protection and when despite
the interim order of the High Court his fundamental right was violated
by detaining him, after serving the order of detention on vague, stale,
irrelevant and non-existent grounds, though he was released after four
days, he ough! not to have been denied relief on the ground of there
having evolved a practice or procedure of the Court not to interfere in
H such a case except where there were extraordinary or special reasons
!
(
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. [SAIKIA, J.)
113
and to leave the appellant to surrender and then move ·a petition for
habeas corpus. We find force in this submission. As the detention
order was already passed and served and the detenu was already taken
into custody during the pendency of the writ petition, these subsequent events having been brought to the notice of the court by a Misc.
application in the form of an Additional Affidavit-the same ought to
have been dealt with by the High Court.
In Jayantilal Bhagwandas Shah v. The State of Maharashtra,
[1981] 1 Crl. L.J. 767, the challenge was directed towards Jrders of
detention passed under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, but the intended
detenus under those orders were not in detention. The State having
raised a preliminary objection to the maintainability of the petition on
the ground that the habeas corpus jurisdiction under Art. 226 of the
Constitution was exercisable only to examine the legality of a detention where there was a detention and in no other case, a Division
Bench of the Bombay High Court took the view that though the writ of
habeas corpus might be issued only when there was actual illegal detention, that was not to say that an illegal order of detention could not
be successfully challenged.
In para 11 of the report, the Court held:
A
B
c
D
"Art. 226 is couched in language wide enough to protect a
E
person against an illegal invasion of his right to freedom by
protecting him while still free and by regaining his freedom
for him if he has already been wrongfully detained. We
cannot countenance · and do not accept the AdvocateGeneral's submission that the High Courts are impotent to
give relief against the prospect of illegal detention and must
F
first require the intended detenu to surrender to the illegal
detention. We are satisfied that the High Courts may under
the provisions of Art. 226 issue a direction, order and writ
in the nature of mandamus and/or certiorari quashing an
illegal order of detention and may by direction, order and
writ in the nature of prohibition en join the person threaG
tening the illegal detention from executing the threat."
Accordingly the Court held that it would intervene to strike down an
illegal order of detention. If the court could in matters of personal
liberty intervene on the strength of a mere post-card, they surely could
intervene on the strength of a petition, though they may seek the H
114
SUPREME COURT REPORTS
[ 1989] Supp. 2 S.C.R.
wrong relief or be phrased in the wrong form. The position of a person
A who is actually under illegal detention and of a person who is in
imminent jeopardy of illegal detention are not far dissimilar. We are
inclined to agree with this view as we feel that refusal to interfere in
such a case may amount to denial of the fundamental right itself.
B
c
D
E
F
A Full Bench of the Gujarat High Court in Vedprakash
Devkinandan Chiripal v. State of Gujarat, since reported in AIR 1987
Gujarat 253 where the petitioner was said to be detained under the
provisions of Prevention of Blackmarketing and maintenance of Supply of Essential Commodities Act, 1980 and the petitioner having
absconded, a notification was issued in the official gazette as provided
under section 7(1)(b) of the said Act and the person moved the petition under Art. 226 of the Constitution of India praying a writ of
habeas corpus or a writ of mandamus, the question was whether the
petition would be maintainable before the detenu had been served
with order of detention and had been detained in custody, answered
the question in the affirmative. Relying on the decisions in A .K.
Gopalan v. State of Madras, AIR 1950 SC 27 and Addi. District Magistrate, Jabalpur v. Sh{vakant Shukla, AIR 1976 SC 1207, the Full Bench
took the view "that before detention, if writ of mandamus is moved for
challenging unauthorised detention order which is already passed on
the ground that the order is a nullity because it is passed (a) by an
incompetent person or (b) it is a ma/a fide order or ( c) it is contrary to
the legal prodcedure prescribed for passing such order, or ( d) it is
otherwise a nullity for any other reason, for example, passed against a
wrong person, it cannot be said that such challenge would be per se not
maintainable." We are inclined to agree inasmuch as it would be a
challenge to an existing order of detention which is posing an
imminent threat to a fundamental right of the named person
guaranteed under Art. 21. There could, therefore, be no reason why in
such an exceptional and rare case, detention order already made, and
either served or yet to be served, and the person is still free could not
be legally brought under challenge.
Article 226(1) of the Constitution of India notwithstanding anyG
thing in Article 32, empowers the High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government
within those territories directions, orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo wam;mto
and certiorari, or any of them, for the enforcement of any of the rights
H conferred by Part III and for any other purpose; and it also envisages
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. ISAIKIA, J.]
115
making of interim orders, whether by way of injunction or stay or in
any other manner in such a proceeding. Article 21 giving protection of
life and personal liberty provides that no person shall be deprived of
his life or personal liberty except according to procedure established
by law. For enforcement of one's right to life and personal liberty
resort to Article'226(1) has thus been provided for. What is the ambit
of enforcement of the right? The word 'enforcement' has also been
used in Article 32 of the Constitution which provides the remedy for
enforcement of rights conferred by Part III of the Constitution. The
word 'enforcement' has not been defined by the Constitution. According to Collins English Dictionary to enforce means to ensure observance of or obedience to a law, decision etc. Enforcement, according
to Webster's Comprehensive Dictionary, means the act of enforcing,
or the state of being enforced, compulsory execution; compulsion.
Enforce means to compel obedience to laws; to compel performance,
obedience by physical or moral force. If enforcement means to impose
or compel obedience to law or to compel observance of law, we have
to see what it does precisely mean. The right to life and personal
liberty has been guaranteed as a.fundamental right and for its enforcement one could resort to Article 226 of the Constitution for issuance of
appropriate writ, order or direction. Precisely at what stage resort to
Article 226 has been envisaged in the Constitution? When a right is so
guaranteed, it has to be understood in relation to its orbit and its
infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to
observe that right, that is to say, not to act or do anything which would
amount to infringement of that right, except in accordance with the
procedure prescribed by law. In other words, conferring the right on a
citizen involves the compulsion on the rest of the society, including the
State, not to jtifrlnge that right. The question is at what stage the right
can be enforced? Does a citizen have to wait till the right is infringed?
Is there no way of enforcement of the right before it is actually
infringed? Can the obligation or compulsion on the part of the State to
observe the right be made effective only after the right is violated or in
other words can there be enforcement of a right to life and personal
liberty before it is actually infringed? What remedy will be left to a
person when his right to life is violated? When a right is yet to be
violated, but is threatened with violation can the citizen move the
court for protection of the right? The protection of the right is to be
distinguished from its restoration or remedy after violation. When
right to personal liberty is guaranteed and the rest of the society,
including the State, is compelled or obligated not to violate that right,
and if someone has threatened to violate it or its violation is imminent,
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and the person whose right is so threatened or its violation so
imminent resorts to Article 226 of the Constitution, could not the
court protect observance of his right by restraining those who
threatened to violate it until the court examines the legality of the
action? Resort to Article 226 after the right to personal liberty is
already violated is different from the previolation protection. Postviolation resort to Article 226 is for remP,dy against violation and for
restoration of the right, while pre-violation protection is by compelling
observance of the obligation or compulsion under law not to infringe
the right by all those who are so obligated or compelled. To surrender
and apply for a writ of habeas corpus is a post-violation remedy for
re3toration of the right which is not the same as restraining potential
violators in case of threatened violation of the right. The question may
C arise what precisely may amount to threat or imminence of violation. Law surely cannot take action for internal thoughts but can act
only after overt acts. If overt acts towards violation have already be.en
done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Art. 226
o giving sufficient particulars of proximate actions as would imminently
lead to violation of right, should not the court call upon those alleged
to have taken those steps to appear and show cause why they sho11ld
not be restrained from violating that right? Instead of doing so would it
be the proper course to be adopted to tell the petitioner that the court
cannot take any action towards preventive justice until his right is
E actually violated whereafter alone he could petition for a writ of
habeas corpus? In the instant case when the writ petition was pending
in court and the appellant's right to personal liberty happened to be
violated by taking him into custody in preventiv'e detention, though he
was released after four days, but could be taken into custody again,
would it be proper for the court to reject the earlier writ petition and
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tell him that his petition has become infructuous and he had no
alternative but to surrender and then petition for a writ of habeas
corpus? The difference of the two situations, as we have seen, have
difference legal significance. If a threatened invasion of a right is
removed by restrainlng the potential violator from taking any steps
towards violation, the rights remain protected and the compulsion
against its violation is enforced. If the right has already been violattd,
what is left is the remedy against such violation and for restoration of
the right.
In K.K. Kochunni v. The State of Madras and Ors., [1959] Suppl.
2 SCR 316, where the grievance of the petitioner was that the Madras
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Marumakkathayam (Removal of Doubts) Act, 1955 (Act 32 of 1955),
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. [SAIKIA, J.]
117
provided in section 2 of the Act that notwithstanding any decision of
court any Sthanam which fulfilled the conditions stated in the section
shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras
Marumakkathayam Act, 1932 shall apply, and thus, unlike other Acts
that contemplated some further action to be taken by the State after
the enactment had come into force, automatically took away or abridged a person's fundamental right (as right to property then was)
immediately it came into force, a Constitution Bench of this Court
speaking through Das C.J. held that there was no reason why the
aggrieved person should not immediately be entitled to seek the
remedy under Art. 32 of the Constitution. The argument that an application under Art. 32 could not be maintained until the State had taken
or threatened to take any action under the impugned law which again,
if remedy to be taken would infringe the petitioner's fundamental
rights, was negatived by· this Court holding that in cases arising under
those enactments the proprietors could invoke the jurisdiction of this
Court under Art. 32 when the State did or .threatened to do the overt
act, (emphasis supplied). It was observed that quite conceivably an
enactment may immediately on its coming into force take away or
abridge the fundamental rights of a person by its very terms and without any further overt act being done. The impugned Act was said to be
an instance of such enactment. In such a case, it was held, the infringement of the fundamental right was complete eo instanti the passing of
the enactment and, therefore, there could be no reason why the person
so prejudicially affected by the law should not be entitled immediately
to avail himself of the constitutional remedy under Art. 32. It was also
observed that to say that a person, whose fundamental right had been
infringed by the mere operation of an enactment, was not entitled to
invoke the jurisdiction of this Court under Art. 32, for the•enforcement
of his right would be to deny the benefit of a salutary constitutional
remedy which was itself his fundamental right. The same reasoning ts
applicable to the facts of the instant case inasmuch as the detention
order was already passed and served and the appellant was already
taken into custody and though released after 4 days the Government
could at any time cancel his release under section 15 of the Act.
In the Special Reference No. 1 of 1964, reported in [ 1965] 1 SCR
413 the Constitution Bench speaking through Gajendragadkar, C.J.
held (at page 493):
,
"If a citizen moves this Court and complains that his fundamental right under Art. 21 had been contravened, it wo'1d
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plainy be the duty of this Court to examine the merits of the
said contention, and that inevitably raises the question as
to whether the personal liberty of the citizen has been taken away according to the procedure established by law. In
fact, this question was actually considered by this Court in
the case of Pandit Sharma, [1959] Supp. 1SCR806."
The same law applies to a High Court moved under Article 226 of the
Constitution of India against similar contravention.
In M.C. Mehta v. Union of India, [1987] 1 SCC 395, the Constitution Bench speaking through Bhagwati, C.J. said:
"We are also of the view that this Court under Article 32(1)
is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a
fundamental right and under Article 32(2), the Court has
the implicit power to issue whatever direction, order or
writ is necessary in a given case, including all incidental or
ancillary power necessary to secure enforcement of the
fundamental right. The Power of the Court is not only
injunctive in ambit, that is, μreventing the infringement of
a fundamental right, but it is also remedial in scope and
provides relief against a breach of the fundamental right
already committed vide Bandhua Mukti Morcha case, 1984
2 SCR 67. If the court were powerless to issue any direction, order or writ in cases where a fundamental right has
already been violated, Article 32 would be robbed of all its
efficacy, because then the situation would be that if a
fundamental right is threatened to be violated, the court
can injunct such violation but if the violator is quick
enough to take action infringing the fundamental right, he
.would escape from the net of Article 32. That would, to a
large extent, emasculate the fundamental right guaranteed
under Article 32 and render it impotent and futile."
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"Despite the power of the State" says Jean Dabin, "there are
al')Vays smart people who contrive to violate the laws without incurring
the rigours of compulsion; or, again, certain rules are psychologically
or technically awkward to apply, so that the machinery of compulsion
lends them but insufficient aid. In any case, actual inefficacy or impotence of compulsion can affect the validity of the rule even less than
H disobedience; that validity binds, and continues to bind, by virtue of
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119
the very disposition made by the rule."
Analytical positivist concept of right has been differently
analysed. Hohfeld writing on fundmental legal concepts as applied in
judicial reasoning analysis four ideas. One of those is that a right may
A
be claim-right. P has a right to do X, it means to indicate that Q or
everyone else has a duty to let P do X. The existence of such a duty
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gives P some sort of claim against Q. Claim-rights may be either in
personam or in rem. A claim-right in personam co-relates to a duty of
a person, while claim-rights in rem co-relate to duties in principle
incumbent on everyone. A right enjoyed by one thus co-relates to a
duty on the part of others.
In Hans Kelsen's analysis it is usual to oppose the concept of
right to the concept of obligation and to cede priority of rank to the
former as we speak of rights and duties. The behaviour of one individual that corresponds to the obligated behaviour of the other is
usually designated as a content of a 'right'-as an object of a 'claim' that
corresponds to the obligation. "The behaviour of the one individual
that corresponds to the obligated behaviour of the other, particularly
the claiming of the obligated behaviour, is designated as exercising a
right." In case of an obligation to tolerate something, the behaviour of
the one corresponding to the obligation of the other is spoken of as
'enjoyment' of the right. According to Kelsen the 'right' or a 'claim' of
an individual, is merely the obligation of the other individual or individuals. When we speak of a right as a legally protected interest, in the
,.,ords of Kelsen, it refers to a right as the "reflex of a legal obligation".
Right is often understood as a will power conferred by law. A "right' in
the sense is present if the conditions of the sanction that constitutes a
legal obligation includes a motion, normally of the individual in relation to whom the obligation exists; the motion is aimed at the execution of the sanction and has the form of a legal action brought before
the law applying organ. Then this organ may apply the general norm to
effectuate the right, which is the reflex of the legal obligation by
executing the sanction. The right which is the reflex of legal obligation
is equipped with the legal power of the entitled individual to bring
about by a legal action the execution of a sanction as a reaction against
the non-fulfilment of the obligation whose reflex is his right; or as it 1s
sometimes called, the enforcement of the fulfilment of this obligation.
To make use of this legal power of motion is exercise of the right. In
this sense each right of an individual contains a claim to the behaviour
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!fie content of the legal obligation identical with the reflex right. If an
A individual, towards which another individual is obligated to a certain
behaviour, does not have the legal power to bring about by a legal
action the execution of a sanction as a reaction against the non-fulfilment of the obligation, then the act by which he demands fulfilment of
the obligation has no specific legal effect; the act is legally irrelevant,
B except for not being legally prohibited. Therefore, a 'claim' as legally
effective act exists only when a law exists, which means that an individual has the legal power. The subject of a right may be not only one
individual but two or several individuals, including the State.
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In the language of Kelsen the right of an individual is either a
mere reflex right-the reflex of a legal obligation existing towards this
individual; or a private right in the technical sense-the legal power
bestowed upon an individual to bring about by legal action the
enforcement of the fulfilment of an obligation existing toward him,
that is, the legal power.