PETITIONER:
JAGANNATH MISRA
Vs.
RESPONDENT:
STATE OF ORISSA
DATE OF JUDGMENT:
17/12/1965
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
RAMASWAMI, V.
SATYANARAYANARAJU, P.
CITATION:
1966 AIR 1140 1966 SCR (3) 134
CITATOR INFO :
D 1967 SC 483 (9)
R 1972 SC1256 (26)
RF 1972 SC1749 (9)
R 1975 SC 919 (9,15)
ACT:
Defence of India Act and rules, 1962, Rule 30(1)(b)–Order
under-Grounds of detention-Application of mind by detaining
authority-Necessity of-.
HEADNOTE:
The petitioner was detained by an order issued under r.
30(1)(b) of the DefEnce of India Rules. He challenged the
detention order in a petition under Art. 32 of the
Constitution mainly on the ground that the order enumerated
six out of eight possible grounds of detention which showed
that the detaining authority had not really applied its mind
to the matter. The affidavit filed by the Home Minister
stated that the detention order was made on his personal
satisfaction that it was necessary to detain the petitioner
under the Rules “with a view to prevent him from acting in a
manner prejudicial to the safety of India and maintenance of
public order etc.”
HELD : (i) The order of detention under r. 30(1) (b) of the
Rules deprives a citizen of this country of his personal
liberty and in view of the suspension of some of the
fundamental rights by the President on account of the
emergency, a citizen has very limited opportunity of
challenging an order of detention properly passed under the
Rules. Section44 of the Defence of India Act says that there
should be as little interference with the ordinary
avocations of life and the enjoyment of property as may be
consonant with the ensuring of the public safety and
interest and the Defence of India and Civil Defence. If in
‘Any case it appears that the detaining authority did not
apply its mind properly before making the order of detention
the order in question would not be an order under the Rules
and the person detained would be entitled to release. [137
F-138 C]
(ii) Of the eight grounds of detention in s. 3(2)(15) of the
Defence of India Act one refers to foreigners i.,e. of being
of hostile origin. An Indian Citizen can thus be detained
on seven possible grounds and the detention order in the
present case mentioned six of them. However in the
affidavit filed by the Minister only two of these grounds
namely safety of India and the maintenance of public order
were mentioned. In these circumstances there could be
little doubt that the authority concerned did not apply its
mind properly before the order in question was passed in the
present case. Such a discrepancy between the grounds
mentioned in the order and the grounds stated in the
affidavit of the authority concerned can only show an amount
of casualness in passing the order of detention against the
provisions of s. 44 of the Act. [138 D-H]
Casualness was also apparent from the conjunctive ‘or’ used
in the order showing that it was more or less a copy of s.
3(2) (15). The use of the word ‘etc.’ in the affidavit was
another example of casualness. This casualness showed that
the mind of the authority concerned was really not applied
to the question of detention of the petitioner. The order
of
135
detention passed without application of mind was no order
under the Rules and the petitioners was entitled to release.
[139 C]
(iii) The fact that the order of detention was not
written by the Minister himself but by his subordinates was
irrelevant. It is the duty of the Minister to see that the
order issued is in accordance with his satisfaction and
carries out his directions. [139 G]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 97 of 1965.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
R. K. Garg for the petitioner.
N. S. Bindra and R. N. Sachthey for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This petition for a writ of habeas corpus under
Art. 32 of the Constitution was heard by us on December 7,
1965. We then directed the release of the petitioner and
indicated that reasons will follow later. We proceed to do
so now.
The petitioner was detained by an order issued under r. 30-
(1) (b) of the Defence of India Rules (hereinafter referred
to as the Rules) by the Government of Orissa on December 29,
1964. He raised a number of grounds challenging his
detention. It is unnecessary to refer to all the grounds
raised by the petitioner. It is enough to say that one of
the grounds raised by him was, that the order of detention
passed by the State Government was not based upon the
satisfaction of the Government. The order was in these
terms :-
“Order No. 8583/C, Bhubaneswar, the 29th
December, 1964.
“WHEREAS the State Government is satisfied
that with a view to preventing Shri Jagannath
Misra, son of Biswanath Misra, vill.
Bhandarisahi, P. S. Parlakemedi, District
Ganjam, from acting in any manner prejudicial
to the defence of India and civil defence, the
public safety, the maintenance of public
order, India’s relations with foreign powers,
the maintenance of peaceful conditions in any
part of India or the efficient conduct of
military operations, it is necessary so to do,
the Governor of Orissa in exercise of the
powers conferred by rule 30(1) (b) of the
Defence of India Rules, 1962, is pleased to
direct that the said
136
Shri Jagannath Misra shall be detained until
further orders.
By order of the Governor, Sd. Secretary to
Government.”
It will be noticed that the order mentions six grounds on
the basis of which the petitioner was ordered to be
detained, namely, acting in any manner prejudicial to (i)
the defence of India and civil defence, (ii) the public
safety, (iii) the maintenance of public order, (iv) India’s
relations with foreign powers, (v) the maintenance of
peaceful conditions in any part of India, and (vi) the
efficient conduct of military operations. As the petitioner
had raised the contention that the order had not been passed
on the satisfaction of the State Government we ordered the
Minister concerned to file an affidavit in this behalf.
Consequently, the Home Minister of the Government of Orissa
who deals with matters of detention, has filed an affidavit
to show that the order in question was passed after the
State Government was satisfied of the necessity thereof.
It is stated in this affidavit that the petitioner was
ordered to be detained on December 29, 1964, by the order in
question and was actually detained on December 30, 1964.
The affidavit then goes on to say that after the outbreak of
hostilities between China and India and the declaration of
emergency by the President a close watch was set on the
movements and activities of persons who either individually
or as a part of an Organisation were acting or were likely
to act in a manner prejudicial to the safety of India and
maintenance of public order, and in this connection
particular attention was paid to the activities of the
members of that section of the Communist Party which came to
be known as the pro-Peking faction of the Party. The
petitioner was a member of the pro-Peking faction and was
under close and constant watch. From the reports received
regarding the activities of the petitioner the Home Minister
stated in the affidavit that he was personally satisfied
that it was necessary to detain the petitioner under the
Rules “with a view to prevent him from acting in a manner
prejudicial to the safety of India and maintenance of public
order, etc.” The affidavit goes on to say that the decision
to detain the petitioner was made on the personal
satisfaction of the Minister and that the satisfaction was
based on several reports placed before the Minister with
respect to the activities of the petitioner.
137
The principal contention on behalf of the petitioner in
relation to and against the affidavit of the Home Minister
is that it is clear from a perusal of the affidavit that the
Minister did not apply his mind in the matter of the
detention of the petitioner. It is urged that the order in
question contains six grounds of detention. These six
grounds practically cover all the grounds. specified in s.
3(2) (15) of the Defence of India Act (hereinafter referred
to as the Act) except two, namely-(i) the security of the
State and (ii) of being of a hostile origin. It is
therefore urged that the order was made copying out
practically all the grounds specified in s. 3 (2) (15) of
the Act without the application of the mind of the Minister
whether those grounds were made out in this case. Reliance
in this connection is placed on the affidavit of the Home
Minister where he has stated that he was personally
satisfied that it was necessary to detain the petitioner in
order to prevent him from acting in a manner prejudicial to
the safety of India and maintenance of public order, etc.
It is: urged that the affidavit shows that the Minister did
not really apply his mind to the question of the detention
of the petitioner and the grounds for doing so and acted in
a casual manner in approving the detention of the
petitioner. It is urged that while the grounds specified in
the order are six in number, the Minister when speaking of
his satisfaction has mentioned only two, namely, safety of
India (which may be assumed to be the same as the public
safety) and maintenance of public sector.
There is in our opinion force in this contention on behalf
of the petitioner. The order of detention under r. 30 (1)
(b) of the Rules deprives a citizen of this country of his
personal liberty and in view of the suspension of some of
the fundamental rights by the President on account of the
emergency, a citizen has very limited opportunity of
challenging an order of detention properly passed under the
Rules. It seems to us therefore necessary where detention
is made under the Rules that the authority ordering
detention should act with a full sense of responsibility
keeping in mind on the one hand the interests of the country
in the present emergency and on the other hand the
importance of the liberty of the citizen in a democratic
society. That this is so is also emphasised by s. 44 of the
Act which lays down that “any authority or person acting in
pursuance of this Act shall interfere with the ordinary
avocations of life and the enjoyment of property as little
as may be consonant with the purpose of ensuring the public
safety and interest and the defence of India and civil
defence.” In view of this specific provision in the Act it
is incumbent upon.
up. CI/66-10
138
the authority which is passing on order under r. 30(1)(b) of
the Rules taking away the liberty of a citizen of this
country that it should act with due care and caution and see
that the person detained is so detained on grounds which
justify the detention in the interest of the country.
Further the proceedings in the matter of detention and the
order of detention should show that it had acted with all
due care and caution and with the sense of responsibility
necessary when a citizen is deprived of his liberty without
trial. We have therefore to see whether in the present case
the authority concerned has acted in this manner or not. If
it has not so acted and if it appears that it did not apply
its mind properly before making the order of detention the
order in question would not be an order under the Rules and
the person detained would be entitled to release.
Now we have pointed out that the order of detention in this
case refers to six out of eight possible grounds on which a
person can be detained under s. 3 (2) (15). Of these eight
grounds under s. 3 (2) (15) one refers to foreigners i.e.,
of being of hostile origin. Therefore in the present case
the order really mentions six out of seven possible grounds
which can apply to an Indian whose detention is ordered
under s. 3 (2) (15). We do not say that it is not possible
to detain a citizen on six out of seven possible grounds
under s. 3 (2) (15); but if that is done it is necessary
that the authority detaining a citizen should be satisfied
about each one of the grounds that the detention is
necessary thereon. But if it appears that though the order
of detention mentions a large number of grounds the
authority concerned did not apply its mind to all those
grounds before passing the order, there can in our opinion
be no doubt in such a case that the order was passed without
applying the mind of the authority concerned to the real
necessity of detention. In the present case as we have
already pointed out six grounds out of possible seven
grounds on which a citizen can be detained have been
mentioned in tie order; but in the affidavit of the Minister
we find mention of only two of those grounds, namely, safety
of India (which may be assumed to be the same as public
safety) and the maintenance of public order. In dim
circumstances there can be little doubt that the authority
concerned did not apply its mind properly before the order
in question was passed in the present case. Such a dis-
crepancy between the grounds mentioned in the order and the
grounds stated in the affidavit of the authority concerned
can only show an amount of casualness in passing the order
of detention against the provisions of s. 44 of the Act.
This casualness
139
also shows that the mind of the authority concerned was
really not applied to the question of detention of the
petitioner in the present case. In this view of the matter
we are of opinion that the petitioner is entitled to release
as the order by which he was detained is no order under the
Rules for it was passed without the application of the mind
of the authority concerned.
There is another aspect of the order which leads to the
same conclusion and unmistakably shows casualness in the
making of the order. Where a number of grounds are the
basis of a detention order, we would expect the various
grounds to be joined by the conjunctive “and” and the use of
the disjunctive “or” in such a case makes no sense. In the
present order however we find that the disjunctive “or” has
been used, showing that the order is more or less a copy of
S. 3 (2) (15) without any application of the mind of the
authority concerned to the grounds which apply in the
present case.
Learned counsel for the State however relies on the word ”
etc.” appearing in the affidavit. His contention is that as
the order of detention had already been mentioned in an
earlier part of the affidavit of the Home Minister, the word
“etc.” used in the later part of the affidavit means that
though the affidavit was only mentioning two grounds,
namely, the safety of India and the maintenance of public
order, it really referred to all the grounds mentioned in
the order. We are not prepared to accept this. If
anything, the use of the words “etc.” in the affidavit is
another example of casualness.
It was also urged on behalf of the State that the order in
question was not actually written out by the Minister and
that after the satisfaction of the Minister such orders are
prepared by his subordinates in the Secretariat and that
therefore the Minister was not responsible for the
discrepancy between the order and the affidavit. We are not
prepared to accept this explanation, for it is the duty of
the Minister to see that the order is issued in accordance
with his satisfaction and carries out his directions.
Though the Minister may not write out the order himself he
is as much responsible for it as if he had done so himself,
for no order of detention can be passed without the
satisfaction of the authority empowered under the Act and
the Rules. The authority cannot take refuge in saying that
it was really satisfied about, say, one ground but the
person who later on wrote out the order of detention added
many more grounds which the authority never had in mind. It
is the duty of the authority to see that the order
140
of detention is in accordance with what the authority was
satisfied about. If it is not so, the inference of
casualness is strengthened and the Court would be justified
in coming to the conclusion that the order was passed
without the application of the mind of the authority
concerned.
Petition allowed.
141