# SAMBHU NATH SARKAR v. THE STAIB OF WEST BENGAL & ORS

- **Citation:** [1974] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1973-04-19
- **Bench:** J. M. Shelat, Acting C.J, K. S. Hegde, A. N. Ray, P. JAc:f6.NMOHAN REDDY, H.R. Khanna, A. K. Mukherjea, Y. V. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sambhu-nath-sarkar-v-the-staib-of-west-bengal-ors-6656
- **Pages:** 24

## Headnote

The Mllillfe11ance of Internal Security Act, (26 of 1971), s. 17A-lf violates
Art. 14 and Art. 22(7) of the Constitution.
Constitution of India, 1950, Art. 22(4)(a) and (b) of Art. 22(1)-Scope of.
Practice-Scope of Supreme Court's Power to review its earlier decisions.
The ~1aintenance of Internal Security Act, 1971, was passed on July 2,
1971. On Del.:ember 3, 1971, a Proclamation of Emergency was issul!d and
on the next d~y. the Defence of India Act. 1971, was enacted. Section 6 of
the Defence of India Act introduced various amendments and a new section,
s. 17,\, in the Maintenance of Internal Security Act.
Section 17 A effectuated
3 niain changqs: (a) It overrides, by its non .. abstante clause, the other provf ..
sions of the Act; (b) a person mayi be detained in a class or classes of cases
or under the circumstances set out in s. 17A(l) (a) and (b}-namely on the
D
ground of prejudicial acts in relation to (i) defence of India, relations with
foreign powers and security of India, and (ii) security of the State and maintenance
of pu51ic order without obtaining the opinion of an Advisory Board for a period
longer than 3 months, but not exceeding two years from the date of detention; and
( c) the maximum period of detention of such a person can be 3 years or until
the expiry of the Defence of India Act, whichever is later. These changes were
brought about by Parliament exetcisjng the power contained in Art. 22(4)(b),
(7)(a) and (b), in respect of all the heads under Entries 9 and 3 of Lists I and
III of the VII Schedule to the ConstitUtion, except the one: with respect to main·
E
tenance of essential supplies and services.
...
~ '·
•
The petitioner was arrested on January 29, 1972, under s. 3(1) and (2) of
the Maintenance of Internal Security Act, and on April 15, 1972, the Str.te Gov·
ernment, after perusing the report of the \dvisqry- Board, confirmed the C'rder
of detention under s. 12(1) and directed the detention to continue for 3 years
_ _
from the date of detention.
-- ----
In a petition under Art. 32;- -,_
~
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HELD : The petitioner should be released <ram his detention forthwith.
(lj(a) There is no question of discrimination -ori..,.vioJation of Art. 14 as
a resu t of any such discrimination.
By the use pf the ~Words
1may .be detained'
in the first part of s. 17A, an unguided discretion h"ns n_Qt been conferred on the
,E-e_taining __ authority whether to. take action under the -m.-Ore drastic provisions of
s:-17A or under s. 3(1) read with ss. 10 to 13. [!OE] '· '·
_ :- _ ..::..;- --
(i) The opening words in-- s-.-_l_Q '!!ave as otlierwi~e expressly provided in this
----1{-.>_ _Act', mean th.at .s. 10 would apply only ..,:_to cas~s not-~xpressly provided for in
the Act, that 1s 11 w1>uld not apply to cases falhng unde't ss, 17 and·l7A. (!OBJ
(ii) The words 'may be detained' in s, 17A(l) go 'l'.ith'· the words which
follow them, namely, '\.vithout obtaining the opinion of_ the· Advisory Board' and
'in any of the following classes of cases or under any-.of the following circums·
tances .... ". and hence, are words enabling the authOtity -to detain in certain
cases and are net words giving a choice to the authority to apply s. 17A or not.
[IOC-D]
H
(b) Even if the operation of ss. 17A and 10 side by side were to result in
any difference in the working of the Act, that difference would not amount to
any discrimination, by reason of the provision in s. 17A(2) to the effect that in
the case of. a pe.rson to whom s. _17 A ( 1 '
a~nlies, s. 10 shall be read subject
to the modifications set out therem. [100:-EJ
2-L944Sup.Cl/74
2
SUPREMB COURT REPORTS
[ 1974] 1 s.c.1
(2) Article 22(4)(a) lays down a rule to which Art. 22(4)(b) read with
A
Art. 22(7)(a) is an exception. In that view, cl. (7)(a) mnst be construed u a
restriction on Parliament's power of making preventive detention laws in tho
sense that it can depart from the rule laid down in cl. (4)(a) and' dispense with
reference of cases to an Advisory Board only by a law wh

## Text

_Characters 0–39,939 of 80,492. This is a partial read: ask again with offset=39939 for what follows._

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SAMBHU NATH SARKAR
v.
THE STAIB OF WEST BENGAL & ORS.
April 19, 1973
[J. M. SHELAT, ACTING C.J., K. S. HEGDE, A. N. RAY, P. JAc:f6.NMOHAN
REDDY, H.R. KHANNA, A. K. MUKHERJEA AND
Y. V. CHANDRACHUD, JJ.]
The Mllillfe11ance of Internal Security Act, (26 of 1971), s. 17A-lf violates
Art. 14 and Art. 22(7) of the Constitution.
Constitution of India, 1950, Art. 22(4)(a) and (b) of Art. 22(1)-Scope of.
Practice-Scope of Supreme Court's Power to review its earlier decisions.
The ~1aintenance of Internal Security Act, 1971, was passed on July 2,
1971. On Del.:ember 3, 1971, a Proclamation of Emergency was issul!d and
on the next d~y. the Defence of India Act. 1971, was enacted. Section 6 of
the Defence of India Act introduced various amendments and a new section,
s. 17,\, in the Maintenance of Internal Security Act.
Section 17 A effectuated
3 niain changqs: (a) It overrides, by its non .. abstante clause, the other provf ..
sions of the Act; (b) a person mayi be detained in a class or classes of cases
or under the circumstances set out in s. 17A(l) (a) and (b}-namely on the
D
ground of prejudicial acts in relation to (i) defence of India, relations with
foreign powers and security of India, and (ii) security of the State and maintenance
of pu51ic order without obtaining the opinion of an Advisory Board for a period
longer than 3 months, but not exceeding two years from the date of detention; and
( c) the maximum period of detention of such a person can be 3 years or until
the expiry of the Defence of India Act, whichever is later. These changes were
brought about by Parliament exetcisjng the power contained in Art. 22(4)(b),
(7)(a) and (b), in respect of all the heads under Entries 9 and 3 of Lists I and
III of the VII Schedule to the ConstitUtion, except the one: with respect to main·
E
tenance of essential supplies and services.
...
~ '·
•
The petitioner was arrested on January 29, 1972, under s. 3(1) and (2) of
the Maintenance of Internal Security Act, and on April 15, 1972, the Str.te Gov·
ernment, after perusing the report of the \dvisqry- Board, confirmed the C'rder
of detention under s. 12(1) and directed the detention to continue for 3 years
_ _
from the date of detention.
-- ----
In a petition under Art. 32;- -,_
~
F
HELD : The petitioner should be released <ram his detention forthwith.
(lj(a) There is no question of discrimination -ori..,.vioJation of Art. 14 as
a resu t of any such discrimination.
By the use pf the ~Words
1may .be detained'
in the first part of s. 17A, an unguided discretion h"ns n_Qt been conferred on the
,E-e_taining __ authority whether to. take action under the -m.-Ore drastic provisions of
s:-17A or under s. 3(1) read with ss. 10 to 13. [!OE] '· '·
_ :- _ ..::..;- --
(i) The opening words in-- s-.-_l_Q '!!ave as otlierwi~e expressly provided in this
----1{-.>_ _Act', mean th.at .s. 10 would apply only ..,:_to cas~s not-~xpressly provided for in
the Act, that 1s 11 w1>uld not apply to cases falhng unde't ss, 17 and·l7A. (!OBJ
(ii) The words 'may be detained' in s, 17A(l) go 'l'.ith'· the words which
follow them, namely, '\.vithout obtaining the opinion of_ the· Advisory Board' and
'in any of the following classes of cases or under any-.of the following circums·
tances .... ". and hence, are words enabling the authOtity -to detain in certain
cases and are net words giving a choice to the authority to apply s. 17A or not.
[IOC-D]
H
(b) Even if the operation of ss. 17A and 10 side by side were to result in
any difference in the working of the Act, that difference would not amount to
any discrimination, by reason of the provision in s. 17A(2) to the effect that in
the case of. a pe.rson to whom s. _17 A ( 1 '
a~nlies, s. 10 shall be read subject
to the modifications set out therem. [100:-EJ
2-L944Sup.Cl/74
2
SUPREMB COURT REPORTS
[ 1974] 1 s.c.1
(2) Article 22(4)(a) lays down a rule to which Art. 22(4)(b) read with
A
Art. 22(7)(a) is an exception. In that view, cl. (7)(a) mnst be construed u a
restriction on Parliament's power of making preventive detention laws in tho
sense that it can depart from the rule laid down in cl. (4)(a) and' dispense with
reference of cases to an Advisory Board only by a law which ,Prescribes both the
circumstances under wh_ich and the class or classes of cases in which, a person
may be detained for a period longer than 3 months without obtaining the opinion
of an Advisory Board in accordance with cl. (4)(a). Since s. 17A has failed to
comply with the requirement of cl. (7)(a), it has to be declared bad as being
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inconsistent with that clause. [23F-H]
(a) Parliament has no alternative power either to pass a law providing for a
longer. period of detention thaD. ·3 mohths with the intercession of an Advisory
Board, or to enact a law under Art. 22(4)(b) read with Art. 22(7)(a) providinr
also for a longer detention, but without the intercession of such a Board, for,
if such a theory were accepted. it would mean that: (i) Art. 22(4)(a) woultl
be totally nullified by Art. 22(4)(.b) read with Art. 22(7)(a), and (ii) whereas
State laws providing longer detention would require the intercession of an Advi·
sory Board, such laws passed by Parliament would not. A-loreover, the construe~ · C
tion, that cl. (4)(b) read with cl. (7).(h) lays down an exception to cl. (4)(a).
harmonises the clauses.
Therefore,
the theory of independent or alternative
power of Parliament cannot be accepted. [ISE-H; 19C]
(b)(i) An analysis of the 2 clauses. els. (4) and (7) of Art. 22 shows: (A)
that ordinarily; detention provided by a p~ventive detention law 1&hould not bt
for a period longer than 3 months; (B) that if however such a law does provide
for a longer period than 3 months. it must provide for the intercession of an
Advisory Board; and (C) that situations may arise when in certain classes of
D
cases Parlic;t.ment alone should be empowered to enact a law which provides for
a longer detention even without the intercession of an Advisory Board. [19A-B]
(ii) The law under cl. 7(a) would be a drastic law, as compared to the one
lo which cl. (4)(a) would apply, and the presumption would be that such a
drastic law would apply to exceptional circumstances and activities ex~ressly and
in precise terms described.
Circumstances would ordinarily mean situation or
events extraneous to the activities of a concerned person or a group of persons,
such as riots etc., which might by their pre·existence accentuate the impact of
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such activities affecting the . security of the country or a part of it or· the public
order. Class or classes of cases, on the other hand, relate to a group or groups
of individuals, who; by the nature of their activities fall under one particular
group or groups by their common or similar objective or objectives. (218-C, E]
(iii) The entries 9 in List I and 3 in List III of the VII Schedule lay down
the topics in respect of which legislation can be made. They are intended to
delineate the bounds within which leaislatures can pass detention laws. Tile
purpose of these entries and of '\rt. 22(7)(a) are distinct. The purpose of
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Art. 22(7) (a) is to distinguish the ordinary from the exceptional to which only
the •alutary safeguards provided by cl. (4)(a) would not apply. [21C-E]
(iv) Therefore, mere repetition of the subjects or topics of legislation from
the entries would not mean prescribing either the circumstances or the classes
of cases to which only. as against the rest of the individuals and their activities,
the safeguard of intercession of an independent body would not apply. If enumeration of the heads in the entries were to mean compliance with prescribing of
circumstances and classes of cases. Parliament would. in such a law. be dealing
G
with all situations and all classes of cases from the lowest to the most extraordinary or abnormal and not with some only requiring a treatment different
from that envisaged by cl. (4)(a); and in such a case. cl. (4)(a) would again
be rendered nugatory, for. Parliament can, by enumerating verbatim the heads
or subjects set out in the entries, do away with the requirement of cl. (4)(a).
[20B-F; 21 E-H]
(v) The mean}ng of the word 'and' i~ cl. (7)(a) must ~ held t~ have 'its
ordinarv COhtunctive sense. the context in the clause requmng Parliament to
prescribe both the circumstances and the classes of cases in which on!Y consideH
ration by the Board can be dispensed with.
Hence. cl. (7 )(a) env1Sages that
Parliament should apply its mind and prescribe specific situations and ~
of
cases which reqrlire a drastic law dispensina with the intervention of an Advisory
Board. (22A-B]
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s. N. SARKAR v. WEST BENGAL (She/at, Acg. C.J.)
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(c) The classification of prejudicial activitieo set out in Regulation l~B of
the British Defence of the Realm Regulations, 1939, in rr. 34(6) and 36(6) of
the Defence of India Rules, 1939, and in o. 3(2) of the W. Bengal (Prevention
of Violent Activities) Act, 1970, show, that there is no practical difficulty in
prescribing specific circumstances under which and the classes of cases· which
need dispensing with the intercession of an Advisory Board. [23F]
·
(3) This Court would review its earlier decisions if it is satisfie~ of its
error or of the baneful effect such a decision would have on the general interest
of the public or if it is inconsistent with the legal philosophy of our Constitution
and in constitutional matters, this Court wo"uld do so more readily than in other
branches of law as perpetuation of an error would be harmful to public intereM.
Nevertheless, this Court will have to bear in mind the accei)ted rule that earlier
decisions are not to be upset e~cept upon a clear compulsion especially when the
legislature has acted upon them as perhaps Parliament did, while enactina the
impugned s. 17A. [16A-D]
Majority view on the construction of Art. 22(4)(b) and (7)(a) in Gopalan
v .. Madras [1950] S.C.R. 88, over ruled. [23G-H]
Tile Bengal Immunity Co. Ltd. v. Bihar, !195512 S.C.R. 603 and URal RenJembrancer, Sratt> of West Bengal v.
Tiit! Corporation of Calcutta, [1967] 2
S.C.R. 176, followed.
·
[The following two questions were left open: ((1) Since the major premise
in the majority decision in Gopafan that Art 22 was a self·contained code and
therefore the provisions of a law made under that Article would not have to be
considered in the light of the provi.,ions of Art. 19. was disaooroved in Cooptr v.
Union of India, (1970] 3 S.C.R. 530, ss. 3 and 8 to 13 of the Maintenance of
Internal Security Act, must be declared void as imposing unreasonable res~
rrictions; and (2) the maximum period of detention prescribed by the amended
s. 13 and by s. 17A(2)(d) did not satisfy Art. 22(7)(b), since the period fixed
by Parliament therein is 3 years or until the expiry of the Defence of India Act
whichever is later, which was an uncertain event.] [24A-E]
ORIGJNAI. JURISDICTION : Writ Petition No. 266 of 1972.
(Petition under Art. 32 of the Constitution of India for issue of
writ in the nature of habeas corpus)
Naranarayan Oooptu, Dilip Sinha, Pulak Ranjan
Ma11Jal
and
Rathi11 Das, for the petitioner.
Nirm De, Attorney-Oeneral of India, D. N. Mukherjee and G. S.
Chatterjee, for the respondent.
Niren De, Attorney-General of India, B. Sen and S. P. Nayar, for
Attorney General of India
.
R. K. Garg and S. C. Agarwala, for Intcvener Nos. 1 & 4
R. K. Garg and K. R. Nambiar, for Intervener No. 2
Prodyot Kumar Chakravarthy, for Intervener No. 3
The Judgment of the Court was delivered by
SttELAT, ACTING C.J., At all material times the petitioner was :if ..
employee of the Government of West Bengal in the Collectorate of
Hooghly District. He was arrested on January 29 1972 pursuant to
the <;>rd er of detention dated January 25, 1972 pa~sed by the District
Magistrate, Hooghly unde.r s, 3 (2) react with s. 3 (1) of the Maintenance of Internal Secunty Act 26 of 1971. The said order was
pas~ed. '.'with a view. to preventing him from acting in any manner
pre1ud1cial to the mamtenance of public order". He was served with
SUPREME COURT REPORTS
t 1974] 1 s.c.R.
the grounds of detention on that very day.
The said grounds of
detention were in connection with certain incidents alleged to have
taken place on April 25, 1971, September 14, 1971,,0ctober 12, 1971
and January 19, 1972, as set out therein.
Before the said order was issued, the petitioner a:-id six others,
also Government employees·in Hooghly Collectorate, were prosecuted
for their alleged parts in the first two incidents on the basis of the first
information report dated September 14, 1971 under s. 143/506 of
the Penal Code.
On March 29, 1972, they were discharged by the
Magistrate on a final report of the police dated March . 10,
1972.
Purusant to the said order of detention, the petitioner was detained
and is still in Hooghly jail.
The mother of the petitioner thereafter filed an application No.
318 of 1972 in the High Court of Calcutta under s. 491 of the Code
of Criminal Procedure.
In that application the petitioner's detention
was challenged onlv on two grounds. namely, vagueness of the grounds
of de•ention and _their irrelevance. On May 29, 1972, the High Court
dismissed the said application.
The present petition is more comprehensive and for the first time challenges the validity of
several
provisions of the Act.
The record before us shows that all the steps required under the
Act have been taken and complied with in the time and manner prescribed by the Act.
No objection, therefore, to the petitioner's detention on that ground can be validly taken.
The petitioner's case was
referred to the Advisory Board constituted under the Act, which reported that there was sufficient cause for his detention. On April 15, 1972,
the State .Government, on receipt of the said report, confirmed the
order of detention under s. 12(1) and directed that detention to con·
tinue for three years from the date of detention.
The said order of
confirmation was dulv communicated to the detenu.
The petitioner
thereafter made his representation to the State Government on August
10, 1972, that is to say, several months after reference of his case to
the Board and the said order of confirmation.
The said representa;
tion was not considered by the State Government as by that time this
writ petition had already peen filed and was pending before this Court.
The order of detention has been challenged in the petition on the
following grounds :
-
(1) that the grounds of detention were vague;
(2) that there was no nexus between the grounds and maintenance of public order:
( ~ that they were mechai!ically framed without the detaining
authority applying his mind;
( 4) that the order was ma/a fide and passed for collateral purpose, namely, to victimise the active members of the State
Coordination Committee of which the petitioner was one;
(5) that s. 6(6) (d) and (e) of the Defence of India Act, 42
of 1971 increasing the detention period from 12 months
to 3 years by the amendment of s. 13 of the Act has
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s. ]';, SARKAR v. WEST BENGAL (She/at, Acg. C.J.)
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treated equally citizens of India and foreigners and has
thereby violated Art. 14;
( 6) that the said order of confirmation providing three years'
detention was ultra vires Art. 22.
The District Magistrate by his counter-affidavit denied all the grounds
of challenge to the validity of the said order.
On October 24 1972, the petitioner applied for urging additional
grounds of challenie and on liberty being granted to amend, the peti·
tion was amended. Stated briefly, the additional grounds challenged,
the validity of ss. 3, 5, 8, 11, 12 and 13 of the Act on the grounds
of their being unreasonable restrictions and as violating Arts. 14, 19,
21 and 22 by reason of those provisions failing to provide an impartial
authority to consider a detenu's representation. and the means to
challenge the materials on which the order is made, the materials placed by the authority before the advisory board and. the report of the
board based on such materials before government confill'.,ed the detention.
The hearing of the case started before the Constitution Bench on
November 17, 1972 and was heard on that day and again on November
21, 1972 and December 1, 1972. It seems that a contention was then
raised as to the validity of s. 17 A .. of the Act which provides for a
period of detention for 21 months without consulting an advisory
board, which question, the Bench thought, required reconsideration of
the decision in Gopalan v. Madras.(!)
The Constitution Bench
thought, therefore, that the case should be referred to a larger bench,
and that is how this case has come up before us for disposal.
The Act was passed on July 2. 1971. Its long title shows that i(
was passed to provide for d'-tention for the purpose of maintenance
of internal security and matters connected· therewith.
Sec. 3(1 )(a)
empowers the Central and the State Governments to make an order
detaining a person, ·if satisfied with respect to such person that it is
necessary to do so with a view to preventing him from acting in any
manner prejudicial to : (i) the defence of India. the relations of India
with foreign powers, 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. Suh-s. (2) authorises
the exercise of the power of detention under sub-s. (l)(a) by certain
officers named therein. inter alia, district magistrates, With respect to
matters set !mt in s. 3 (1) (a) (ii) and (iii). Sec. 5 confers power on
· ·the appropnate government to remove a person detained under s. 3
from one place of detention to another whether within or ·outside the
State. Sec. 6 provides that such an order. shall not be invalid on the
gi;o1!fld that the concerned person is detained in a jail outside the jurisdicti?n of that Govemm~nt . or the officer making the order.
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proy1d~s for. th.e commumcabon of grounds for detention to the detenu
ordinarily withm five days, and in exceptional cases · within 15 days
(I) (1950] S.C.R. 88.
6
Sl..'PREMB COURT IU!PORTS
[ 1974] 1 s.c.R.
from the date of detention. Sec. 9 provides for the constitution of
advisory boards. Sec. 10 provides that, save as otherwise provided for
in the Act, the appropriate Government shall within 30 days from the
date of detention refer every case to the advisory board. Under s, 11,
the advisory board has to give its report to the Govermnent .within ten
weeks from the date of detention. Sub sec. ( 4) of s. 11 disentities the
detenu to appear by any legal practitioner before the board and makes
the proceedings before and the opinion of the board confidential. Sec.
12 provides that if the board is of opinion that there is sufficient reason
for the detention, the Government may confirm the order and continue
such detention for such period as it thinks fit. In case the opinion is
that there is no such sufficient caus~. !he Government has to revoke the
detention order. Sec. 13 provides that the maximum period of detention shall be 12 months from the date of detention. Sec. 17 provides
that a foreigner, in respect of whom a detention order is passed, may
b~ detained without obtaining the opinion of the advisory board for a
longer period than three months, but not exceeding two years in any
of the classes of cases, or under any of the circumstances !hereinafter
set out in sub-els. (a) to ( d) of sub-s. (1), namely, where a foreigner
enters or attempts to enter India or is found with arms, ammunition
or explosives, or where a foreigner enters or attempts to enter a notified area or is found therein in breach of s. 3 of the Criminal Law
Amendment Act, 1961, or where such a foreigner enters or attempts to
enter in an area adjoining the borders of India specified under s. 139
of the Border Security Forces, Act, 1968 without a travel document, or
where the Central Government has reason to believe that such a foreigner commits or is likely to commit an offen'ce under the Official Secrets
Act, 1923.
Sec. 17 thus lays down classes of cases in or circumstances under which foreigners can be detained for a period longer
than three months without reference to an advisory board.
Art. 19 ( 1) guarantees the rights of freedom of speech and expression, of assembly, to form associations and unions to move
freely
throughout India, to reside and settle in any part of India and to practi:;.e
any profession, occupation, trade or business, subject to reasonable
restrictions which may be imposed by law as provided by els. (2) to
(6) thereof. Art. 21 guarantees protection of life and liberty, the deprivation of which is not permissible, except in accordance with procedure established by law. Art. 22. by its els. (1) and (2) guarantees
that no person can be detained in custody without his being informed,
as soon as may be, of the grounds for his arrest and without being
furnished with an opportunity to consult and be defended by a legal
practitioner of his choice, and his being produced before the nearest
magistrate within 24 hours from his arrest. No such person can be
detained for more :ban that period without the authority of a magistrate.
CI. (3) of Art. 22, however, makes els. ( 1) and (2) inapplicable to a
person arrested and detained under a law providing for preventive detention. But cl. ( 4) provides that no law providing for preventive deten·
lion shall authorise detention for a period longer than three months
unless (a) an advisory board has reported before the expiration of three
months that there is sufficient cause for such detention, or (b) such
person is detained in accordance with a law made by Parliament nnder
cl. 7(a) and (b),
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Cl. (7) provides that 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 than three months under
1 any law providing for preventive detention without obtaining the opinion
of an advisory board in accordance with the provisions of sub-cl. (a)
of cl. ( 4); (b) the maximum period for which any person may in auy
class or classes of cases be detained under any law providing for preventiTe detention. Parliament under entry 9 of List I of the Seventh Schrr
dule can pass such a Jaw for reasons connected with defence, foreign
relations or the security of India, and concurrently with State legisla·
tures under entry 3, List III for reasons connected with the security of
the State, the maintenance of public order or the maintenance of supplies
and services essential to the community.
On December 3, 1971, the President
issued a proclamation of
emergency under Art. 352 of the Constitution. On December 4, 1971,
Parliament enacted the Defence of India Act, 42 of 1971. The Act
was passed in view of the grave emergency which then existed as pro·
claimed by the President, and to provide for special measures to ensure
public safety and interest, the defence of India and civil defence, for
trial of certain offences 1md for matters connected therewith.
Sec.
2(3) of the Act provided that it would remairi in force during the
period of operation of the proclamation of emergency and for six
months !thereafter. By sec. 6, the Act introduced amendments in seve·
ral Acts, one amongst them being the Maintenance of Internal Security
Act, 1971. Cl, (d) of sub-s. (6) of s. 6 amended s. 13 of the Act
by adding after the words therein "from the date of detention'', the
words and figures "or until the expiry of the Defence of India Act,
1971, whichever is later". By cl. (e) of sub-s. (6) of s. 6, a new
section, s. 17 A was inserted in the Act.
The new section reads as
follows:
"17 A. (l) Notwithstanding
anything contained in the
foregoing provisions of this Act, during the period of opera·
lion of the Proclamation of Emergency issued on the 3rd day
of December, 1971, any person (including a foreigner) in
respect of whom an order of detention has been made under
this Act, may be detained without obtaining the opinion of
the Advisory Board for a period longer than three months,
but not exceeding two years from the date of his detention
in any o( the foHowing classes of cases or under any of the
following circumstances, namely :-
(a) where such person had been detained with a view to
preventing him from .acting i.n any· man!1er prejudicial
to the defence of India, relations of India with foreign
powers or the security of India; or
Cb) where ~uch person had !Jeen detained with a view to
preventing ~
from acting in any manner prejudicial
to t~e secunty of the State or the maintenance of
public order.
(2) In t!ie case of any person to whom sub-section (1)
applie~. sectio?s 1~ to 13 shall have effect subject to the·
followmg modifications, namely,
\
8
(a)
(b)
(c)
SUPREME COURT REPORTS
[ 1974] 1 S.C.R.
in section 10, for the words "shall, within thirty days",
the words "may, at any time prior to but in no case
later than three months before the expiration of two
years" shall be substituted;
in section 11,-
(i) in sub-se~tion (I) for the words "from the date
of detention", the words "from the date on which
reference is made to it" shall be substi~uted;
(ii) in sub-section (:i), for the words "the detention
of the person concerned", the words "the continued detention of the perso: concerned" shall
he substituted; ·
in section 12, for the words "ior the detention", in
both the places where they occur, the words "for the
continued . detention" shall be substituted;
(d) in section 13, for the words "twelve months", the
·words "three years" shall be substituted."
The new section, s. 17 A effectuates three main changes : ( 1) by
A
B
c
!ts non-obsante clause overrides the other provisions of the Act, (2)
D
a person may be detained in a class or classes of cases or under the
circumstances set out in sub-els. (a) and (b) of its sub-s. (I) without
obtaining the opinion of an advisory board for a period longer than
three months, but not exceeding two years from the date of detention ..
that is to say, no opinion of an advisory board need now be obtained
for 21 months from the date of d~tention, the first three months of
the detention being permissible without such opinion even before the
E
insertion of s. 17A; and (3) the maximum period of detention of such
a person can be three years or until the expiry of the Defence of India
Act, 1971 whichever is later. These changes have been brought about
by Parliament exercising power contained in cl. ( 4 )(b) read with cl.
7(a) and (b) of Art. 22. The power-is exercised in respect of classes
of cases and circumstances relating to all the beads under entries 9
and 3 of Lists I and III of the Seventh Schedule, except one, viz.,
F
maintenance of essential supplies and services, in re3pect of which
Parliament has the power to pass preventive detention laws.
Counsel for the petitioner challenged the validity of the provision~
of the Act and the detention order mainly on the following grounds :
(1) that the amendments introduced in the Act by s. 6(6)(d)
and (e) are violative of Art. 22(4), (5) and (?.);
G
(2) that s. 10, both prior to and after its amendment, contravenes Art, 22 ( 4) ;
(3) that sec. 6(6)(d) and (e) of the Defence of india Act
contravenes Art.' 14;
( 4) that the maximum period prescribed by the amendment
to s. 13 by s. 6(6)(d) of the Defence of India Act and
H
hv the new s. 17 A ( 2) ( d) is ultra vires the powers of
Parliament since it amounts to punitive and not preventive
detention;
.
A
B
c
D
E
F
G
H
s. N. SARKAR I'. WEST BENGAL (She/at, Acg. C.J.)
9
(5)
(6)
that secs. 3, 5, 8, 11 and 12 of the Act are violative of
Arts. 14, 19 and 21, on the ground that they are unreasonable restrictions and are not saved by any of the
sub-clauses of Art. 19 ( 1) ; and
that the amendments brought about in them bys. 6{6)(d)
and ( e) of the Defence of India Act cannot breathe life
in them as they were non est, by reason only of the subsequent proclamation of emergency.
These contentions fall under two parts, (1) relating to the provisions
as they stood before the amendments, and (2) relating to the amendments introduced in the Act by the Defence of India Act, s. 6{6)(d)
and ( c). As regards the first part, the arguments were that :
(i) the Act was invalid as the restrictions placed thereby on
the fundamental rights guaranteed by Arts. 14, 19 ( 1 )(a)
to (d) and (g), 21 and 22 were not saved by sub-els.
(2), (3), (4) and (6) of Art. 19(1);
{ii)
(iii)
(iv)
(v)
'
s. 3. of the Act in so far as it empowers the detention of
a person on subjective satisfaction, and not on any objective assessment of the truth of allegations made against
him, imposes an unreasonable restriction on his several
rights guaranteed by Art. 19 (1);
s. 8, which obliges the authority to furnish to the detenu
the grounds of detention and confers on him the right
to make a representation does not provide for its consideration by an independent and impartial body, is bad;
s. 12 is bad as government can, contrary to principies of
natural justice, confirm detention for a period longer than
three months on the strength of. an advisory board's report
without giving any opportunity to the detenu to know the
contents of such a report and to controvert it;
the provisions of the Act are discriminatory in so far as
they drastically curtail the liberty of a detenu' without
his having safeguards available to a person proceeded
against under ss. 107 to 110 of the Code of Criminal
Pr0cedure.
As stated above, s. 17 A authorises detention on the ground of
prejudicial acts in relation to (a) defence of India, relations with
foreign powers and security of India, and (b) security of the State and
· maintenance of public order only. Counsel argued that by the use of
the words "may be detained" in the first part of the section an unguided discretion has been conferred on the de•aining authority whether to take action under the more drastic provisions of this section or
under s. 3(1) read with ss. 10 to 13, even though the activities in
respect of wliich action is taken are in both the c:ises of the kind set
out in (a) and (b) above. In support of this argument, counsel relied
on the decisions of this Court in Northern India Caterers Private Ltd.
10
SUPREME COURT REPORTS
f 197<! j 1 ~.CR.
v. Punjab, ( 1) State of M.P., v. Thakur Bharat Singh, (2) S. G. laisinghan1 v. Union of India,(•) Satwant Singh Sawhney v. D. RamaratJinam, Assistant Passport Officer,
Government of India,
New
Delhi.(')
The contention, however, is not borne out by the provisions of ss.
10 and 17A(l) and (2). In the first place, s. 10 opens with the words
''uve as otherwise expressly provided in this Act".
These words
mean that the section would apply only to cases not expressly provided for in the Act, that is to say, it would not apply to cases falling
under ss. 17 and 17 A which deal with cases "otherwise ·expressly provided" in the Act. In the second place, the words "may be detained"
in s. 17 A(l) go with the words which follow them, namely, ''withont
obtaining the opinion of the advisory board" and in "any of the followin& classes of cases or under any of the following circumstances-''.
The words "may be detained", no doubt, enable the authority to detain
a person without obtaining the opinion of an advisory board for a period
longer than three ·months, but not exceeding two years in the cases
therein set out. The words "may be detained" thus are words enabling
the authority to detain without a board's opinion for the period there
provided for. but are not words giving a choice to the authority to apply
.s. 17A(a) or not. Even if the operation of s'. 17A ands. 10 side by
side were to result in any difference in the working of the Act, that
d.ifl'erence would not seem to amount to any discrimination by reason of
the provision in -s. 17A(2) to the effect that in the case of a person to
whom sub-s. (1) applies s. 10 shall be read subject to the modification,
namely, that for the words "within thirty daiys", the words "at any time
prior to but in no case later than three months before the expiration
of two years" shall be substituted. In this view, there is no question of
discrimination or violation of Art. 14 as a result of any such discrimination. TI1is conclusion is clearly borne out by the combined effect of
the non-obstante clause in the commencement of s. 17 A('l) and the
qualifying words "save as otherwise provided in this Act" in s. 10.
But the more imoortant challenge to the validity of s. 17 A was as
£egards its incompatibility with and the non-compliance of the requirements of Art. 22(7). The argument was two fold: (I) that on a proper reading of Art. 22(4), (5) and (7), cl. (7) was an exception to the
rnle laid down in cl. (4), and (2) that consequent upon such a cons-
'truction of cl. (7), that is, as an exception to cl. (4), that clause did
not generally empower Parliament to enact a law, on the subjects set
out in entries 9 and 3 of Lists I and III respectively, without the saf~
guard provided by cl. (4), namely, of obtaining an opinion of an impartial body, like the advisory board. On the contrary, that clause
authorises Parliament to enact a detention law in
exceptional class
or classes of cases and in exceptional circumstances specifically prescribed by such a law. The contention was that s. 17 A did not comply with such a requirement of cl. (7) inasmuch as enumeration of
the snbiects or heads in 's. 17 A, except that with respect to maintenance of essential supplies and services, wotild not mean prescribing
class or classes of cases and circumstances as provided by cl. (7).
(1) [1967] 3 S. C. R. 399.
(2) [1967] ZS. C.R. 454.
(3) [1967J ZS. C.R. 703.
(4) [1967] 3 S. C. R. 525.
A
B
c
D
E
F
G
A
B
c
D
E
F
G
s. N. SARKAR v. WEST. BENGAL (She/at, A.cg. C.l.)
11
Three questions would emerge from this contention : ( 1) whether
cl. ( 7) is an exception to the rule laid down in cl. ( 4) ; ( 2) whei;Jier
Parliament's power to enact a detention law is lin~ited by the r~wre
lllents laid down in cl. (7); and (3) whether setting out verbatim the
heads or subjects or some of them upon which Parliament can enact
such a law would mean compliance of the requirements of cl. (7).
These very questions were considered in one form or an~ther in
Gopalan v. Madras(l) in connection with s. 12 of the Prevenuve Detention Act, 1950. The validity of that section was impugned on the
ground of its not having complied with the requirements latd down m
cl. (7), firstly, because the section merely enumerate? the he~ds or
subjects, except one, namely, maintenance of essential suppltes. and
services upon which wider entries 9 and 3 of Lists I and III respectively
Parliament could enact a detention law and not the class or classes of
cases and the circumstances in which detention, without the board's
opinion, could be ordered, and secondly, because it failed to comply with
both the requirements, the word 'and' in that connection being ~sed
conjunctively and not disjunctively. Sec. 3(1) of that Act authorised
the Central or the State Government to detain a person, (i) if it was
satisfied that his detention was necessaey. to preventing him from acting
prejudicially to (a) to the defence of India, her relations with foreign
powers, the security of India; or (b) the security of the State or the
maintenance of public order, or (c) the maintena"Ce of supplies and
services essential to the community, or (ii) with reference to a foreigner
to regulate his ccmtinued presence in India, or to make arrangements
for his exoulsi0n from Jndh. Sec. 9 required the aopr,nriate G0vernmcnt to place the case of the person detained under S; 3 (1) before the
advisory
board within six weeks from the date of
detention only in cases ( 1) where the order was made un. apprehension that
the detenu was likely to act prejudicially to the maintenance of. essen·
tial snpplies and services, and (2) where it was made against a foreigner
under the two heads stated above.
S. 12 of the Act provided
that a person could be detained without obtaining the board's opinion
for a period lonQer than three months. but not e~ceeding one year
from the date of the detention in the following classes of cases or in
any of the following circumstances, namely, where such a pers~n has
been detained with a view to preventint? him from acting prejudicially
to (a) the defence of India, relations with foreign powers, the security
of India, and (I>) the security of the State or the maintenance of public
order.
S. 12(2), however, provided for a review bv the approoriate
Government in consultation with a person who is or has been or is qualified to be appointed a judge of a High Court. Such a provision for
a review and the intercession of an independent and impartial person
reduced to a certain extent the riaour of s. 12(1). No such review
which would be of a quasi judicial nature, [(see Lakhanpal v. Unio,;
of lndia( 2 )] is provided for in the impugned section 17A.
The majority Court.
consisting of Kania. C.J..
and
Pataniali
Sastri, Mukherjea and Das, JJ., (as they all then were) rejected both
the contentions, holding, firstly th~t the word 'and' me1nt in the context 'or', which meant that it was t!nou@i if Parliament, under Art.
(I) (1950]
S. C. R. 88.
(2) [1967] l S. c. R. 433.
12
S!Jl'REMB COURT REPORTS
l 1!>74] l S.C.R.
22(7) (a). prescribed either the circumstances or the classes of cases
in which a person might be detained for a period longer tfian three
months without reference to an advisory board, and secondly,
that
matters referred to in s. 12 constituted sufficient description of circumstances or classes of cases so as to comply with the requirements of Art.
22(7)(a), and that therefore, the secuon was not open to any eonstitutional challenge.
The minority Court consisting of Faz! Ali and Mahajan, JJ., (as
the latter then was) accepted the petitioner's contention in both its
aspects and held that the word 'and' meant the conjunctive and not
the disjunctive, and that therefore, the impugned provision had
to
specify both the classes of cases and the circumstances in which detention for a longer period could be directed without a. board's opinion.
They also held that the expressions "chss or classes. of cases"
and
"the circumstances" would not mean merely the heads or the subjects
on which a detention law was permissible under cl. (7)(a).
Kania, C.J., held that the word 'and' in cl. (7)(al meant that tho
power of preventive detention beyond three months may be exercised,
either for the circumstances in which or the class or classes of cases
in which a person was suspected to be doing the objectional things
mentioned in s. 12. According to him, "the use of the word 'which'
twice in the first part of the sub-clause read with a comma put after
each shows that the legislature wanted these to be read as disjunctive
and nm conjunctive". (126-127) Patanjali Sastri, J., (as he then was)
also construed the word
'and' as
meaning that Parliament may
prescribe either the circumstances or the classes of cases or both and held
th1t s. 12 provided both. for, to say that persons likely to act prejudichlly to the defence of India may be detained beyond three months
was at once to prescribe a class of persons who and the circumstances
under which persons could be detained for the longer period.
(216)
Mukherjea, J., (as he then was) thought that d. (7)(a) laid down an
enabling provision and Parliament, if it so chose, could pass a law in
terms of the same. "where an optional power is conferred on certain
authority to perform two separate acts, ordinarily it would not
be
obligatory to perform both; it may do either if it so likes". (282) Das,
J., (as he then was) also felt that Parliament "was not obliged under
cl. (7) to prescribe both circums•ances 1nd cla<ses.