Dr. Ram Manohar Lohia v. State of Bihar and Others

Judgment

the court is taken away but that is in respect of a right conferred on any person by Arts. 21 and 22 and provided such person is deprived of the right under the Defence of India Ordi nance (now the Act) or any rule or order made thereunder. Two things stand forth. The first is that only the enforcement in a

court of law of rights conferred by Arts. 21 and 22 is suspended and the second is that the deprivation must be under the Defence of India Ordinance (now the Act) or any rule or order made thereunder. The word "thereunder" shows that the authority of the Defence of India Act must be made out in each case whether the deprivation is by rule or order.

It, therefore, becomes necessary to inquire what are the rights which are so affected ? This can only be found out by looking into the content of the Arts. 21 and 22. Article 21 lays down that no person is to be deprived of his life or personal liberty except according to procedure established by Jaw. This article thinks in terms of the ordinary laws which govern our society when

there is no declaration of emergency and which are enacted subject to the provisions of the Constitution including the Chapter on Fundamental Rights but other than those made under the powers any person dealt with under the terms of his Order, the right to plead in a court of law that he was being deprived of his life and personal liberty otherwise than according to the procedure establi shed by the laws of the country. In other words, he could not invoke the procedure established by ordinary law. But the President did not make lawless actions lawful. He only took away the funda mental right in Art. 21 in respect of a person proceeded against under the Defence of India Act or any rule or order made there under. Thus a person so proceeded could not claim to be tried under the ordinary law or bring an action under the ordinary law. But to be able to say that the right to move the court for the enforce ment of rights under Art. 21 is suspended, it is necessary to estab lish that such person has been deprived of any such right under the Defence of India Act or any rule or order made thereunder, that is to say, under the authority of the Act. The action of the authorities empowered by the Defence of India Act is not com pletely shielded from the scrutiny of courts. The scrutiny with reference to procedure established by laws other than the Defence of India Act is, of course, shut out but an enquiry whether the action is justified under the Defence of India Act itself is not shut out. Thus the State Government or the District Magistrate cannot add a clause of their own to the Defence of India Act or even the Rules and take action under that clause. Just as action is limited in its extent, by the power conferred, so also the power to move the court is curtailed only when there is strict compliance with the Defence of India Act and the Rules. The Court will not enquire whether any other law is not followed or breached but the Court will enquire whether the Defence of India Act or the Rules have been obeyed or not. That part of the enquiry and conse quently the right of a person to move the court to have that enquiry made, is not affected.

The President's Order next refers to Art. 22. That Article creates protection against illegal arrest and detention. Clause (I) confers some rights on the person arrested. Clause (2) lays down the procedure which must be followed after an arrest is made. By cl. ( 3) the first two clauses do not apply to an alien enemy or to a person arrested or detained under any law providing for pre ventive detention. Clauses (4), (5), (6) and (7) provide for the procedure for dealing with persons arrested or detained under any law providing for preventive detention, and lay down the minimum or compulsory requirements. The provisions of Art. 22 would have applied to arrest and detentions under the Defence of India Art. 22.

The net result of the President's Order is to stop all claims to enforce rights arising from laws other than the Defence of India Act and the Rules and the provisions of Art. 22 at variance with the Defence of India Act and the Rules are of no avail. But the President's Order does not say that even if a person is proceeded against in breach of the Defence of India Act or the Rules he cannot move the court to complain that the Act and the Rules, under colour of which some action is taken, do not warrant it.

c It was thus that this Court questioned detention orders by Addi tional District Magistrates who were not authorised to make them or detentions of persons who were already in detention after con viction or otherwise for such a long period that detention orders served could have had no relation to the requirements of the Defence of India Act or the Rules. Some of these cases arose

under Art. 226 of the Constitution but in considering the bar of Art. 359 read with the President's Order, there is no difference between a petition under that article and a petition under Art. 32. It follows, therefore, that this Court acting under Art. 32 on a petition for the issue of a writ of habeas corpus, may not allow claims based on other laws or on the protection of Art. 22, but

it may not and, indeed, must not, allow breaches of the Defence of India Act or the Rules to go unquestioned. The President's Order neither says so nor is there any such intendment.

There is, however, another aspect which needs to be mentioned here. That is the question of want of good faith on the part of those who take action and whether such a plea can be raised. This topic was dealt with in Makhan Singh's case('). At page 828 the following observation is to be found :-

"Take also a case where the detenu moves the court for a writ of Habeas Corpus on the ground that his deten tion has been ordered ma/a fide. It is hardly necessary to emphasise that the exercise of a power ma/a fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention is mala fide would not be enough; the detenu will have to prove the mala fides. But if the mala fides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by Art. 359 ( 1) and the Presi-

Mr. Verma, however, contends on the authority of Smith v. East Elloe Rural District Cormical & Others(¹ that the validity

) of the orders under the Defence of India Rules I 962 cannot be challenged on the ground of bad faith when the action is otherwise proper. That case dealt with the Acquisition of Land (Authorization Procedure) Act 1946 (9 & 10 Geo 6 Ch. 49). Paragraph 15(1) of Part IV of Schedule to that Act provided:

"If any perso11 aggrieved by a compulsory purchase order desires to question the validity thereof. ... on the ground that the authorization of a compulsory purchase thereby granted is not empowered to be granted under this A~t. ..... he may, within six weeks from the date on which notice of the confirmation or making of the order ...... is first published ...... make an application

to the High Court ........ ".

The appellant more than six weeks after the notice had been pub lished brought an action, claiming inter a/ia that the order was made and confirmed wrongfully and in bad faith on the part of the clerk. Paragraph 16 of that Act provided :

"Subject to the provisions of the last foregoing paragraph, a compulsory purchase order ...... shall not ...... be questioned in any legal proceeding what-

soever . ..... ".

The House of Lords (by majority) held that the jurisdiction of the court was ousted in such wis-e that even questions of bad faith could not be raised. Viscount Simonds regretted that it should be so, but giving effect to the language of paragraph 16, held that even an allegation of bad faith was within the bar of Paragraph 16. Lord Morton of Henryton, Lord Reid and Lord Somervill of Harrow were of opinion that Paragraph 15 gave no such oppor tunity. Lord Radcliffe dissented.

The cited case can have no relevana: here because the statute provided for ouster of courts' jurisdiction in very different circum stances. Although this Court has already stated that allegations of bad faith can be considered, it may be added that where statu tory powers arc conferred to take drastic action against the lifo and liberty of a citizen, those who exercise it may not depart from the purpose. Vast powers in the public interest are granted but II under strict conditions. If a person, under colour of exercising being viewed in two ways. Where power is misused but there is good faith the act is only ultra vires but where the misuse of power is in bad faith there is added to the ultra vires character of the act, another vitiating circumstance. Courts have always acted

to restrain a misuse of statutory power and the more readily when improper motives underlie it. The misuse may arise from a breach of the law conferring the power or from an abuse of the power in bad faith. In either case the courts can be moved for we do not think that Art. 359 or the President's Order were intended to condone an illegitimate enforcement of the Defence of India Act.

We now proceed to examine the contentions of Dr. Lohia by which he claims to be entitled to have the order of the District Magistrate set aside. It is convenient to begin with the allegation of want of good faith. Dr. Lohia alleges that there was a conspiracy between the Central Government, the State of Bihar, the Senior

Superintendent of Police and the District Magistrate, Patna, to stifle his disclosures against the Bihar Government, the Chief Minister and others. He also alleges that he was arrested for a substantive offence under the Indian Penal Code but the arrest has been converted into preventive detention to avoid proof in a court of law. He says that he was about to leave Patna and if the train was not late he would have gone away and he hints that his detention was made to prevent him from taking part in the Session of Parliament. The District Magistrate and the Inspector of Police deny these allegations. The District Magistrate has given the background of events in which he made the order on his responsibility. On reading the affidavits on both sides, we are statisfied that the contentions of Dr. Lohia are ill-founded and that the order of detention was made by the. District Magistrate in good faith.

There is no dispute that the District Magistrate was duly autho rized to act under Rule 30 of the Defence of India Rules, 1962. Dr. Lobia, however, says that the order is in flagrant disregard of the requirements of the Defence of India Act, 1962 and the Rules. For this purpose he bases his argument on three circumstances :

(i) that the District Magistrate acted outside his juris diction as created by Notification No. 11155-C dated 11-8-1964 published in the Bihar Gazette Extra dated August 11, 1964;

(ii) that the District Magistrate's order is defective because be purports to derive power from notifica-

(iii) the District Magistrate purports to act to main tain law and order when he can only act to maintain public order under the Defence of India Act and the

Rules thereunder.

We shall now consider these grounds of objection. Before we do so we may read the provisions of the Defence of India Act and the Rules to which reference may be necessary.

The first part of the Defence of India Act we wish to read is the long title and the preamble. They arc :

"An Act to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected therewith.

WHEREAS the President bas declared by Proclama tion under clause (I ) of article 352 of the Constitution that a grave emergency exists whereby the security of India is threatened by external aggression;

AND WHEREAS it is necessary to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial of certain. offences and for matters connected therewith;

"

We may next read section 3 which confers power to make rules :

"3. Power to make rules.

(I ) The Central Government may, by notification in the Official Gazette, make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military opera tions, or for maintaining supplies and services essential to

the life of the communitj."

Then by way of illustration and without prejudice to the generality of the powers conferred hy sub-s. ( 1), certain specific things are II mentioned for which provision may be made by rules. Clause 15 provide1;

(i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or of having acted, acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India's rela tions with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner,

(ii) the prohibition of such person from entering or residing or remaining in any area, (iii),' the compelling of such person to reside and remain in any area, or to do or abstain from doing any thing, and

(iv) the review of orders of detention passed in

pursuance of any rule made under sub-clause ( 1) ;"

We need not trouble ourselves with the other clauses. Section 44

next provides :

"44. Ordinary avocations of life to be interfered with as little as possible.

Any authority or person acting in pursuance of thi~ Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be conso nant with the purpose of ensuring the public safety and interest and the defence of India and civil defence."

By virtue of the powers conferred by s. 3 of the Defence of India Ordinance, 1962 (now the Act), the Defence of India Rules

1962 were framed. Part IV of these Rules is headed "Restriction of Movements and Activities of Persons" and it consists of Rules 25-30, 30-A, 30-B and 31-34. These rules provide for various India" (Ruic 27) or "Leaving India" (Rule 28), "Regulation of Movement of Persons within India" (Rule 29), "Powers of pho tographing etc. of suspected person" (Rule 31 ), "Control and winding up of certain organisations" (Rule 32), provisions for "Persons captured as prisoners" (Rule 33) and "Change of name by citizens of India" (Rule 34). We are really not concerned with these rules but the headings are mc.ntioned to consider the argu ment of Dr. Labia on No. (I) above. Rule 30 with which we are primarily concerned consists of eight sub-rules_ We are con cerned only with sub-rule (I). That rule reads :

"30. Restriction of movements of suspected persons, restriction orders and detention orders.- ( I ) The Central Government or the State Govern ment, if ii is satisfied with respect to any particular person that with a view lo preventing him from acting in any manner prejudicial to the defence of India and civil dcfenc~. the public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community, it is necessary so to do, may make an order- (a) (b) directing that he be detained;

"

Under s. 40 ( 2) of the Defence of India Act, the State Govern ment may by order direct that the powers conferred by the Rules may be exercised by any officer or authority in such circumstances and under such conditions as may be specified in the direction. special limitation was indicated in s. 3 (15) of the Act, where authority is given for making rules in connection with the apprehen sion and detention in custody of persons, that the delegation should not be made to an officer below the rank of a District Magistrate.

By virtue of these various powers the State Government issued a notification on March 20, 1964 authorising all District Magis trates to exercise the powers of Government under Rule 30( 1) (b). on August 11, 1964. This was necessary because of a mistake in the first notification. The new notification reads :

"No. 11155-C.-In exercise of the powers conferred by sub-section (2) of section ( 40) the Defence of India Act, 1962 (Act 51 of 1962), the Governor ot Bihar is pleased to direct that the powers exercisable by the State Government under clause (b) of sub-rule ( 1) of rule 30 of the Defence of India Rules, 1962, shall be exercised by all District Magistrates within their respective jurisdictions.

By order of the Governor of Bihar

M. K. Mukharji Secretary to Government".

Dr. Lohia contends that the District Magistrate in his affidavit "says that he apprehended danger not only in his district but in the whole of Bihar State and even outside and hence he bas not acted within his jurisdiction. His argument attempts to make out, what we may call, an exercise of extraterritorial jurisdiction on

t: the part of the District Magistrate. He contends also that the notifications are bad because although the Defence of India Act contemplates the imposition of conditions, none were imposed and no circumstances for the exercise of power were specified. In our judgment, none of these arguments can be accepted.

Section 40(2) of the Act does not require the imposition of any conditions but only permits it. This is apparent from the words "if any" in the sub-section. The only condition that the Sta_!~ Government thought necessary to impose is that the District Magistrates must act within their respective juris~ictions. It can not be said that this condition was not complied with. Dr. Lobia

was in the Patna District at the time. There was nothing wrong if the District Magistrate took a broad view of bis activities so as to weigh the possible harm if he was not detained. Such a view ing of the activities of .a person before passing the order against him does not necessarily spell out extraterritoriality in the sense suggested but is really designed to assess properly the potentiality

of danger which is the main object of the rule to prevent. We find nothing wrong with the order on the score of jurisdiction and argument No. (i) stated above must fail. Argument No. (ii) is

This brings us to the last contention of Dr. Lohia and that is the most serious of all. He points out that the District Magistrate purports to detain him with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of law and order and argues that the District Magistrate had mis understood his own powers which were to prevent acts prejudicial to public order and, therefore, the detention is illegal. On the other side, Mr. Verma contends that the Act and the Rules speak of public order which is a concept much wider in content than the con oept of Jaw and order and includes the latter, and whatever is done c in furtherance of law and order must necessarily be in furtherance of public order. Much debate took place on the meaning of the two expressions. Alternatively, the State of Bihar contends that the order passed by the District Magistrate prior to the issue of the actual order of detention made use of the phrase "maintenance of public order" and the affidavit which the District Magistrate swore in support of the return also uses that phrase and, therefore, tho District Magistrate was aware of what his powers were and did exercise them correctly and in accordance with the Defence of India Act and the Rules. We shall now consider the rival contentions.

The Defence of India Act and the Rules speak of the conditions under which preventive detention under the Act can be ordered. In its Jong title and the preamble the Defence of India Act speaks of the necessity to provide for special measures to ensure public safety and interest, the defence of India and civil defence. Tho expressions public safety and interest between them indicate the range of action for maintaining security, peace and tranquillity of India whereas the expressions defence of India and civil defence connote defence of India and its people against aggression from outside and action of persons within the country. These generic terms were used because the Act seeks to provide for a congeries of action of which preventive detention is just a small part. In conferring power to make rules, s. 3 of the Defence of India Act enlarges upon the terms of the preamble by specification of details. It speaks of defence of India and civil defence and public safety without change but it expands the idea of public interest into "maintenance of public order, the efficient conduct of military operations and maintaining of supplies and services essential to tho life of the community". Then it mentions by way of illustratioa in the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate), sus pects, on grounds appearing to that authority to be reasonable :-

(a) of being of hostile origin; or (b) of having acted, acting or being about to act or being likely to act in a manner prejudicial to--

(i) the defence of India and civil defence;

(ii) the security of the State;

(iii) the public safety or interest;

(iv) the maintenance of public order;

(v) India's relations with foreign states;

(vi) the maintenance of peaceful conditions in any part or area of India; or

(vii) the efficient conduct of military operations. It will thus appear that security of the state, public safety or interest, maintenance of public order and the maintenance of peaceful con ditions in any part or area of India may be viewed separately even though strictly one clause may have an effect or bearing on another. Then follows rule 30, which repeats the above conditions and per mits detention of any person with a view to preventing him from acting in any of the above ways. The argument of Dr. Lohia that the conditions are to be cumulatively applied is clearly untenable. It is not necessary to analyse rule 30 which we quoted earlier and which follows the scheme of section 3 ( 15 ) . The question is whe ther by taking power to prevent Dr. Lohia from acting to the pre judice of "law and order" as against "public order" the District Magistrate went outside his powers.

The subject of preventive detention has been discussed almost threadbare and one can hardly venture in any direction without coming face to face with rulings of courts. These cases are now legion. It may be taken as settled that the satisfaction of the de taining authority cannot be subjected to objective tests, that the

courts are not to exercise appellate powers over such authorities and that an order proper on its face, passed by a competent autho rity in good faith is a complete answer to a petition such as this. and to the Home Se1:retary alone. In India courts are ordinarily satisfied on the production of a proper order of detention made in good faith by an authority duly authorised and have not enquired further even though the power is exercised by thousands of officers subordinate to the Central and State Governments as their dele gates. When from the order itself circumstances appear which raise a doubt whether the officer concerned had not misconceived his own powers, there is need to pause and enquire. This is more so when the exercise of power is at the lowest level permissible under the Defence of India Act. The enquiry then is not with a view to investigate the sufficiency of the materials but into the officer's notions of his power, for it cannot be conceived for a moment that even if the court did not concern itself about tho sufficiency or otherwise of the materials on which action is taken, it would, on proof from the order itself that the officer did not realise the extent of his own powers, not question the action. The order of detention is the authority for detention. That is all which the detenu or the court can see. It discloses how the District Magistrate viewed the activity of the detenu and what the District Magistrate intended to prevent happening. If the order passed by him shows that he thought that his powers were more extensive than they actually were, the order might fail to be a good order.

The District Magistrate here acte{I to maintain law and order and not public order. There are only two pos.~ibilities: (i) that there was a slip in preparing the order, or (ii) that maintenance of law and order was in the mind of the District Magistrate and he thought it meant the same thing as maintenance of public order. As to the first it may be stated at once that the District Magistrate did not specify it as such in his affidavit. He filed an earlier order by him in which he had used the words "public order" and which we have quoted earlier. That order did not refer to his own state of the mind but to the report of the Senior Superintendent of Police. In his affidavit he mentioned "public order" again but did not say that the words "law and order" in his order detaining Dr. Lohia were a slip. He corrected the error about the notification but naively let pass the other, and more material error, without any remark. Before us every effort possible was made to re concile "public order" with "law and order" as, indeed, by a pr<>cess of paraphrasing, it is possible to raise an air of similitude bet ween them. Such similitude is possible to raise even between phrases as dissimilar as "for preventing breach of the peace", "in the

and order". We cannot go by similitude. If public order connotes something different from law and order even though there may be some common territory between them then obviously the District

Magistrate might have traversed ground not within "public order". It would then not do to say that the action is referrable to one

power rather than the other, just as easily as one reconciles diverse phrases by a gloss. When the liberty of the citizen is put within the reach of authority and the scrutiny from courts is barred, the action must comply not only with the substantive requirements of the Jaw but also with those forms which alone can indicate that the substance has been complied with. It is, therefore, necessary to examine critically, the order which mentioned "law and order" with a view to ascertaining whether the District Magistrate did not act outside his powers.

Before we do so we find it necessary to deal with an argument of Mr. Shastri who followed Mr. Verma. He contends that there

is no magic in using the formula of the Act and Rules for the language of the Act and the Rules can be quoted mechanically. We regret such an attitude. The President in his Order takes away the fundamental rights under Arts. 21 and 22 from a person pro-

vided he has been detained under the Defence of India Act or the rules made thereunder. The Order is strict against the citizen but

it is also strict against the authority. . There can be no toleration of a pretence of using the Defence of India Act. The President's Order itself creates protection against things such as arbitrariness, misunderstood powers, mistake of identity by making his order apply only to cases where the detention is under the Act or the rules thereunder. No doubt, what matters is the substance but the form discloses the approach of the detaining authority to the seri ous question and the error in the form raises the enquiry about the substance. It is not every error in the order which will start such

an enquiry. We have paid no attention to the error in the reference to the notification because that may well be a slip, and power and

jurisdiction is referrable to the notification under which they would have validity. The other is not such a veneal fault. It opens the door to enquiry what did the District Magistrate conceive to be his powers?

In proceeding to discuss this question we may consider a decision of the Court of Appeal in England in Carltona Ltd. v.

Commissioners of Works and Others(¹ Curiously enough it was Regulations in England during the last World War. The Regula tion read:

"A competent authority, if it appears to that authority to be necessary or expedient so to do in the interes!3 of the public safety, the defence of the realm or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, may take possession of any land, and may give such directions as appear to the competent authority to be necessary or expedient in connection with the taking of

possession of that land."

There was an order against Carltona Ltd. by the Colnmissioncr of Works requisitioning the factory. The order read :

"I have to inform you that the department have come to the conclusion that it is essential, in the national inte rest, to take possession of the above premises occup~

by you."

It was objected on behalf of the Company that the mind was not directed to any one of the various heads mentioned in the Regula tion which were put in the alternative. Lord Greene, M.R. speaking on behalf of Lord Goddard (then Lord Justice) and Lord du Parcq (then Lord Justice) observed :

"It was said that it was the duty of the person acting in the capacity of 'a competent authority' to examine the facts of the case and consider under which, if any, of those various heads the matter came, and it is said that the assistant secretary did nothing of the kind. It is to be observed that those heads arc not mutually exclusive heads at all. They overlap at every point and maDJ matters will fall under two or more of them, or under all four. I read the evidence as meaning that the assist ant secretary, seeing quite clearly that the case with which he was dealing and the need that he wished to satisfy was one which came under the regulation, did not aolemnly sit down and ask himself whether it was for the efficient prosecution of the war that this storage was required for maintaining supplies and services essential to the life of the community. He took the view that it was required either for all those purposes, or, at any this case for anyone seriously to sit down and ask him self under which particular head the case fell. He regard ed it, as I interpret his evidence, as falling under all tho heads, and that may very well be having regard to the facts that these heads overlap in the way that I have mentioned. It seems to me, therefore, that there is no substance in that point, and his evidence makes it quite clear that he did bring his mind to bear on the question whether it appeared to him to be necessary or expedient to requisition this property for the purposes named, or some of them."

The case is distinguishable on more than one ground. To begin with, it dealt with an entirely different situation and differ ent provision of law. No order in writing specifying satisfaction

on any or all of the grounds was required. Detention under Regulation 18-B required an order just as detention under the Defence

of India Act. The distinction between action under Regulation 51 and that under Regulation 18-B was noticed by the Court of Appeal in Point of Ayr Collieries Ltd. v. Lloyd-George('). It is manifest that when property was requisitioned it would have been

a futile exercise to determine whether the act promoted the efficient prosecution of the war, or the maintaining of supplies and ser

vices. But when a person is apprehended and detained it may be necessary to set out with some accuracy what he did or was likely to do within the provisions of Rule 30, to merit the deten tion. The use of one phrase meaning a different thing in place of

that required by the Act would not do, unless tho phrase imported means the same thing as the phrase in the Act. Here the phraJe

used is niaintenance of Jaw and order and we must see how that phrase fits into the Rule which speaks of maintenance of "public order". The words "public order" were considered on some

previous occasions in this Court and the observations made then> are used to prove that maintenance of public order is tho same

thing as maintenance of law and order. We shall refer to some of these observations before we discuss the two phrases in the context of the Defence of India Rules.

Reliance is first placed upon a decision of tho Federal Court in Lakhi Narayan Das v. Province of Bihar(² where the Court

) dealing with item 1 of Provincial List, 7th Schedule in the Gov

ernment of India Act, 1935 which read-

power)"

observed that "Public Order" with which that item began was "a most comprehensive term''. Referenc~ is also made to Ramesh Thapar v. State of Madras(') where this Court dealing with the same subject matter also observed :

" .... 'Public order' is an expression of wide con notation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established ...... it must be taken that 'public safety' is used as a part of the wider

concept of public order ...... "

and referring to Entry 3 in List HI (Concurrent List) of the 7th Schedule of the Constitution which includes the "security of a State" and "maintenance of public order" as distinct topics of legislation, observed-

" ...... The Constitution thus requires a line to be drawn in the field of public order or tranquillity, mark ing off, may be, roughly, the boundary between those serious and aggravat~d forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences

in degree a~ if they were differences in kind."

Fazl Ali J. took a different view which he had expressed more fully in Brijbhushan and Another v. the State of Delhi(') but he also observed that "public safety" had, as a result of a long course of legislative practice, acquired a well r.~cognised meaning and was taken to denote safety or security of the State and that the expression "public order" was wide enough to cover small dis turbances of the peace which do not jeopardise the security of the State and paraphrased the words "public order" as public tran quillity."

Both the aspects of the matter were again before this Court in The Superintendent Central Prison, Fatehgarh v. Ram Manohar Lohia(¹ when dealing with the word',ng of clause (2) of Art 19

) as amended by the Constitution (First Amendment) Act, 1951, it

them came to the conclusion that "public order" was equated with. public peace and safety and said :

" ...... Presumably in an attempt to get over the effect of these two decisions, the expression "public order" was inserted in Art. 19 ( 2) of the Constitution by the Constitution (First Amendment) Act, 1951, with a view to bring in offences involving breach of purely local significance within the scope of Art. 19 ........ ".

Summing up the position as he gathered from the earlier cases, the learned Judge observed :

" ...... "Public order" is synonymous with public safety and tranquillity: it is the absence of disorder in volving breaches of local significance in contradistinc tion to national upheavals, such as revolution, civil strife, war, affecting the security of the State; ...... ".

These observations determine the meaning of the words. "public order" in contradistinction to expressions such as "public safety", "security of the State". They were made in different con texts. The first three cases dealt with the meaning in the legisla

lative Lists as to which, it is settled, we must give as large a meaning as possible. In the last case the meaning of "public order"

was given in relation to the necessity for amending the Constitu tion as a result of the pronouncements of this Court. The con text in which the words were used was different, the occasion was different and the object in sight was different.

We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevent

ed by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and

at the other the most serious and cataclysmic happenings. Does the expression "public order" take in every kind of disorder or cnly some ? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes

in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public dis

order. When two drunkards quarrel and fight there is disorder

but not public disorder. They can be dealt with under the powers fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of Jaw always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1 )(b) to prevent subversion of public order but not in aid of maintenance of law and order under (" ordinary circumstances.

It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of !cm gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represenb security of State. It is then easy to :;ee that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his

the own field of action and was adding a clause to Defence of India Rules.

We do not know the material on which the District Magistrate acted. If we could examine the reasons we may be able to say whether the action can still be said to fall within the other topic public safety_ That enquiry is not open to us. If we looked into the matter from that angle we would be acting outside our powen. The order on its face shows two reasons. There is nothing tD show that one purpose was considered to be more essential than the other. We are not, therefore, certain that the District Mag» trate was influenced by one consideration and not both. The order of detention is a warrant which authorises action. Affidavits hard ly improve the order as it is. If there is allegation of bad faith they can be seen to determine the question of good faith. If mis taken identity is alleged we can satisfy ourselves about the identitJ. But if action is taken to maintain law and order insTead of main taining public order, there is room to think that the powers were misconceived and if there is such a fundamental error then the

considered was the problem of maintenance of public order. The error is an error of a fundamental character and unlike quoting a wrong notification. It is thus apparent why on.e error in the order

of detention is admitted but not the other, and why with elaborate arguments it is attempted to establish that "public order" involves

elements more numerous than "law and order" where, in fact, the truth is the other way.

It may be mentioned that Dr. Lohia claimed that the satisfac

tion of the President under Art. 359 is open to scrutiny of the court. We have not allowed him to argue this point which is now

concluded by rulings of this Court.

In our judgment the order of the District Magistrate exceeded his powers. He proposed to act to maintain law and-order and the

order cannot now be read differently even if there is an affidavit the other way. We have pondered deeply over this case. The

action of the District Magistrate was entirely his own. He was, no doubt, facing a law and order problem but he could deal with such a problem through the ordinary law of the land and not by means of the Defence of India Act and the Rules. His powers

were limited to' taking action to maintain public order. He could not run the law and order problems in his District by taking

recourse to the provisions for detention under the Defence of India Act. If he thought in terms of "public order" he should have said so in the order or explained how the error arose. He does neither. If the needs of public order demand action a proper order should be passed. The detention must, therefore, be declared to be outside the Defence of India Act, 1962 and the Rules made thereunder. Dr. Lohia is entitled to be released from custody and we order accordingly.

Raghubar Dayal, J. In this writ petition Dr. Lohia challenges the validity of the order made by the District Magistrate, Patna,

dated August 9, 1965, under cl. (b) of sub·r. (1) of r. 30 of the Defence of India Rules, 1962, hereinafter called the Rules. This order is as follows :

"Whereas I, J. N. Sahu, District Magistrate, Patna, am satisfied with respect to the person known as Dr. Ram Manohar Lohia, Circuit House, Patna that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of law and Now, therefore, in the exercise of the powers con ferred by clause (b) of sub-rule ( l) of rule 30 of tho Defence of India Rules, 1962 read with Notification No. 180/CW dated the 20th March I 964 of the Govt.

of Bihar, Political (Special) D;:partment, I hereby direct that the said Dr. Ram Manohar Lohia be arrested by the police wherever found and detained in the Central Jail Hazaribagh, until further orders."

If this order is valid, Dr. Lohia cannot move this Court for the enforcement of h;s rights conferred by arts. 21 and 22 of the Constitution, in view of the Order of the Pre;ident dated November 3, I 962, in the exercise of powers conferred on him by cl. (I) of art. 359 of the Constitution.

Dr. Lohia has challenged the validity of this order on several grounds. I agree with the views expressed by Hidayatullah J., about all the contentions except one. That contention is that the appropriate authority is not empowered to order detention with a view to prevent a person from acting in any way prejudicial to the maintenance of law and order. It is urged that though the District Magistrate could order the detention of the petitioner with a view to prevent him from acting in any way prejudical to the public safety and the maintenance of public order, he could not order detention with a view to prevent the petitioner from acting prejudi cially to the public safety and maintenance of law and order, as the latter object, being not synonymous with the object of prevent ing him from acting prejudicial to public order, is outside the pur view of the provisions of r. 30( I) of the rules and that, therefore, the entire order is bad. I do not agree with this contention.

Under r. 30(1)(b), the District Magistrate could have made the order of detention with respect to Dr. Lohia if he was satisfied that he be detained with a view to prevent him from acting in any manner prejudicial to public safety or maintenance of public order. Such satisfaction is subjective and not objective. The Court cannot investigate about the adequacy of the reasons which led to his satisfaction. The Court can, however, investigate whether he exercised the power under r. 30 honestly and bona fide or not i.e., whether he ordered detention on being satisfied as required by r. 30. What is crucial for the validity of the detention order is such satisfaction and not the form in which the detention order is framed. A detenu can question the validity of the detention order-valid validity of the detention order on the same ground when, on its face, it appears to be invalid. In such a case the onus will be on the detaining authority to establish that it was made bona fide.

An order is made mala fide when it is not made for the purpose laid down in the Act or the rules and is made for an extraneous pur pose. The contention of the petitioner to the effect that the deten tion order cannot be made on the satisfaction of the detaining authority that it is necessary to prevent him from acting in a man ner prejudicial to the maintenance of law and order, in effect,

mala amounts to the contention that it is made fide.

The detaining authority is free to establish that any defect in the detention order is of form only and not of substance, it being satisfied of the necessity to detain the person for a purpose men

tioned in r. 30 though the purpose has been inaccurately stated in the detention order. The existence of the satisfaction required

by r. 30 does not depend on what is said in the detention order, and can be established by the District Magistrate by his affidavit. We have therefore to examine whether the District Magistrate was really satisfied about the necessity to detain Dr. LOhia with a view

to prevent him from acting in a manner prejudicial to public safety and maintenance of public order.

The impugned order was passed under r. 30( I )(b) of the rules. The District Magistrate decided to detain the appellant with two objects, firstly, to prevent him from acting in any way

prejudicial to public safety and, secondly, to prevent him from acting in any way prejudicial to the maintenance of law and order.

The District Magistrate has--even in the absence of any such contention as under discussion and which was raised after the filing of the District Magistrate's affidavit-said that having regard to, inter alia, the circumstances which were developing in Patna on

August 9, 1965, he was fully satisfied, in view of the report made by the Senior Superintendent of Police, Patna, in regard to Dr.

Lohia's conduct and activities, that it was necessary to direct that he be detained in order to prevent him from acting further in any manner prejudicial to the p~•blic safety and maintenance of public order. There is no reason to disbelieve his statement. His original

order, set out below, bears out this statement of his in his later affidavit :

"Perused the report of the Senior S. P. Patna for detention of Dr. Ram Manohar Lohia, M.P. under rule and maintenance of public order. From the report of the Sr. S. P., Patna, I am satisfied that Dr. Ram Manohar Lohia, M.P., aforesaid, be detained under rule 30 ( l) (b) of the Defence of India Rules. Accordingly, I order that Dr. Ram Manohar Lohia be detained under rule 30 ( 1 )(b) of the Defence of India Rules read with Notification No. 180/CW dated 20-3-64 in the ilazaribagh

Central Jail until further orders."

'The District Magistrate's omission to repeat in the second sentence 111here he speaks of his satisfaction that Dr. Lohia be detained with a view to preventing him from acting prejudicially to the public safety and maintenance of public order, does not mean that he was not so satisfied when the earlier sentence makes reference to the report of the Senior Superintendent of Polico for detaining Dr. Lohia on the ground of his being at large to be prejudicial to public safety and maintenance of public order.

The District Magistrate referred, in para 3 of his affidavit, to his satisfaction that the forces of disorder which were sought to be let loose, if not properly controlled, would envelop the whole State of Bihar and possibly might spread in other parts of the country which would necessarily affect the probrem of external defence as II well in more ways than one. The possibilities of such force1 of disorder spreading to other parts of the country satisfied him with the necessity of taking immediate action to neutralize those forces. It appears from his statements in paras 6 and 7 of the same affi. davit that actual disturbances took place at Patna that day and that he had to operate from the Control Room. In para 9 Ii. atates that the action taken against Dr. Lohia was purely for the purpose of maintenance of public peace in the circlllilltances stated by him earlier.

In his rejoinder affidavit Dr. Lohia states with reference to the alleged forces of disorder referred to by the District Magiatrate that even if he was promoting what the executive would call 'forces of disorder', he was doing so not with a view to impair the defences of the country but further to strengthen them, that the various allegations made against him were extraneous to the scope and purpose of the legislative provisions of the proclama tions of emergency which had no rational relationship to the circumstances which were developing in Patna on August 9, 1965.

"It is also revealing to note that after the evenis of the 9th August for which responsibility should have been sought to be fixed either through trial or enquiry, on me or Government or anybody else, I addressed a crowd of nearly a lakh for over an hour after seven in the evening."

The setting of the events that appear to have happe11ed at Pa~

on August 9, 1965 further bear out the statement of the Distnct Magistrate that he was satisfied of the necessity to detain Dr.

Lohia in order to prevent him from acting in a manner prejudicial to public order.

Further, the exr-ression 'maintenance of law and order' is not used in cl. ( 1) of r. 30. The corresponding expression used

therein is 'maintenance of public order'. The two expressions are not much different. The expression 'public order' has been con

strued by this Court in a few cases, the latest of them being The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia(¹ wherein it was said at p. 839 :

) " 'Public order' is synonymous with public safety and tranquillity: it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State."

The expression 'maintenance of law and order' would cover 'maintenance of public safety and tranquillity'. If may be, as

urged for the petitioner, an expression of wider import than public order but, in the context in which it is used in the deten tion order and in view of its use generally, it should be construed to mean maintenance of law and order in regard to the mainte

nance of public tranquillity. It is not usually used merely with reference to enforcement of law by the agency of the State pros&

curing offenders against any of the numerous laws enacted for the purposes of a well-regulated society. Simple and ostensibly minor incidents at times lead to widespread disturbance8 allecting public safety and tranquillity .

Reference may be made to the case reported as Sodhi Sham-

lher Singh v. State of Pepsu(¹). In that case certain persons wen: them had published certain pamphlets whose circulation, in the opinion of the Government, tended to encourage the Sikhs to resort to acts of lawlessness and plunge the Hindus into a feeling of utter frustration and discouragement and consequently to make them take the law into their hands for the redress of their grievances. Section 3 (I) of the Preventive Detention Act, 1950, reads:

"The Central Government or the State Government may ( a) if satisfied with respect to any person that 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, or the security of India, or

(ii) the security of the State or the maintenance of public order, or

(iii) ....

(b) .... , make an order directing that such person

be detained."

This Court used the expression 'maintenance of law and order' in place of 'maintenance of public order' used ins. 3(l)(a)(ii) at three places in paras 4 and 5 of the judgment. I do not refer to these to show that the Court has construed the expression 'main tenance of public order' as 'maintenance of law and order' but to reinforce my view that the expression 'maintenance of law and order' is generally used for 'maintenance of public safety and tranquillity' which is covered by the expression 'public order'. When this Court used this expression in place of 'maintenance of public order' I cannot conclude, as urged by the petitioner, that the District Magistrate's using the expression 'maintenance of law and order' in place of 'maintenance of public order' is any indi cation of the fact that he had not applied his mind to the require ments of the provisions of r. 30( 1) or had not actually come to the conclusion that it was necessary to detain Dr. Lohia with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

If the expression 'maintenance of Jaw and order' in the im pugned order be not construed as referring to 'maintenance of public order' the impugned order cannot be said to be invalid in

lic safety and from acting prejudicially to the maintenance of law and order. If the District Magistrate was satisfied, as the im pugned order and the affidavit of the District Magistrate show

that he was satisfied that it was necessary to detain Dr. Lohia with a view to preventing him from acting prejudicially to public

safety, that itself would have justified his passing the impugned order. His satisfaction with respect to any of the purposes men tioned in r. 30 ( 1) which would justify his ordering the detention

of a person is sufficient for the validity of the order. There is no c room for considering that he might not have passed the impugned

order merely with one object in view, the object being to prevent Dr. Lohia from acting prejudicially to public safety. The entire circumstances in which the order has been made and which I have referred to earli.er, point to that.

The question before us is not really at par with the question that arose in Ramesh Thappar v. State of Madras('). In that

case the provisions impugned were those of a statute whose lan guage authorised the passing of orders which could be constitu tional in certain circumstances and unconstitutional in others. In such a context, it was said that where a law purports to authorize

the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the

limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable; so long as the possibility of its being applied for purpoes not sanc

tioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. It was so held as, other

wise, the orders passed for purposes not sanctioned by the Consti tution would have been in accordance with the law held valid. The validity of the orders passed under a valid law-the Defence

of India Act and the rules have to be assumed to be valid-depends on their being made by the appropriate authority in accord

ance with the law empowering it to pass the orders.

The question before us is also not at par with the question which often arises in construing the validity of detention orders passed under the Preventive Detention Act for the reason that

some of the grounds for the satisfaction of the appropriate authority were irrelevant or non-existent. The presence of such grounds

raised the question whether the remaining good grounds would different. The question is whether the District Magistrate would have made the order of detention on his satisfaction merely to the effect that it was necessary to detain Dr. Lohia with a view to prevent him from acting in a manner prejudicial to public safety. It is not that his satisfaction is based on two grounds, one of which is irrelevant or non-existent.

Even in such cases, this Court has held in Dwarka Da.J v. State of J & K('):

"The principle underlying all these decisions is this.

Where power is vested in a statutory authority to de prive the liberty of a subject on its subjective satisfac tion with reference to specified matters, if that satis faction is stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some out of them are found to be non-existent or irrele vant, the very exercis~ of that power is bad. That is so because the matter being one for subjective satis faction, it must be properly based on all the reasons on which it purports to be baszd. If some out" of them are found to be non-existent or irrelevant, the Coi:rt cannot predicate what the subjective satisfaction of the said authority would have been on the exclu sion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority. In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjec tive satisfaction of the appropriate authority. It is not merely because some ground or reason of a compara tively unessential nature is defective that such an order based on subjective satisfaction can be held to be in valid."

As stated earlier, there does not appear to be any reason why the District Magistrate would not have passed the order of detention against Dr. Lohia on his satisfaction that it was necessary to II prevent him from acting prejudicially to public safety. On such

I am therefore of opinion that the District Magistrate made the impugned detention order on his being satisfied that it was necessary to do so with a view to prevent Dr. Lohia from acting

in a manner prejudicial to public safety and maintenance of public order and that the impugned order is valid. Consequently, Dr. Lohia cannot move this Court for the enforcement of llis rights under arts. 21 and 22 of the Constitution in view cf the President's Order under art. 359 ( 1) of the Constitution. I would dismiss this petition.

Mudholkar, J. I agree that the petition of Dr. Ram Manohar Lohia under Art. 32 of the Constitution be granted and would briefly indicate my reasons for granting it.

At the outset I shall consider an objection of Mr. S. P. Vanna on behalf of the State as to the tenability of the petition. The objec tion is two-fold. In the first place, according to him, in view of the Proclamation made by the President under Art. 359 this Court has no jurisdiction to entertain it. In the second place his con tention is that the order of detention made against the petitioner being one under the Defence of India Rules, he cannot challenge the validity of his detention thereunder in any court. In support of these contentions Mr. Varma relies on the decision of this Court in Mohan Choudhury v. Chief Commissioner, Trip11ra (' ). In that case this Court has, while holding that the right of a person whose detention has been ordered under the Defence of India Rules to move any court for the enforcement of his rights under Art. 21 of the Constitution is suspended during the continuance of the cmeregency declared by the President by a Proclamation under Art. 352, held that the powers conferred on this Court by Art. 32 of the Constitution are not suspended. It is true that where a person has been detained under the Defence of India Rules he cannot move this Court under Art. 32 for the enforcement of his right under Art. 21 and so there will be no occasion for this Court to exercise its powers under that article in such a case. But what would be the position in a case where an order for detention purporting to be made under the Defence of India Rules was itself one which was beyond the scope of the Rules ? For, before an entry into the portals of this Court can be denied to detenu he

must be shown an order under r. 30(1) of the Defence of India Rules made by a competent authority stating that it is satisfied the detenu contends that the order, though it purports to be under r. 30( I) of the Rules, was not competently made, this Court has the detenu contends that the order. though it purports to be under order if the Court finds that it was not competently made or was ambiguous it must exercise its powers under Art. 32 of the Con stitution, entertain his petition thereunder and make an appropriate order.

In this case the District Magistrate, Patna purported to make an order under r. 30 ( I ) of the Defence of India Rules. The State has placed on record copies of two orders : one is said to have been c recorded by the District Magistrate on his file and another which was served on Dr. Lohia. We are not concerned with the former because the operative order must be the one served on the detenu. The District Magistrate may well keep the former in the drawer of bis table or alter it as often as he likes. It cannot, therefore, be regarded as anything more than a draft order. The order which n ftnally emerged from him and was served on the detenu would thus be the only one which matters. The grounds for detention given in the latter order arc that Dr. Lohia's being at large is pre judicial to public safety and maintenance of law and order. Under r. 30( I) an order of detention of a person can be made "with a view to preventing him from acting in any manner prejudicial to the defence ·of India and civil defence, public safety, the mainten ance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of sup plies and services essential to the life of the community". I find it difficult to accept Dr. Lohia's argument that the appropriate authority must entertain an apprehension that the person to be de tained is likely to participate in every one of the activities referred to in the rule. To accept it would be, apart from making a depar ture from the rules of grammar, (for doing which no valid grounds exist), making not only the rule in question but also s. 3 of the De fence of India Act where similar language is used almost ineffective. What has, however, to be considered is his other argument. The question posed by the argument is whether an authority competent to make an order under the aforesaid provision can make such an order on the ground that the authority feels it necessary to prevent a person from acting in any manner prejudicial to the maintenance of law and order. The expression "law and order" does not find any place in the rule and is not synonymous with "public order". It seems to me that "law and order" is a comprehensive expression

local area and perhaps some other matters. "Public order" is something distinct from order or orderliness in a local area. Under r. 30( 1) no power is conferred upon that authority to detain a

person on the ground that it is necessary so to do in order to pre vent that person from acting in a manner prejudicial to the main

tenance of order in a local area. What is it that the District Magis trate, Patna had in mind when he ordered the detention of the petitioner ? Was the apprehension entertained by the District Magistrate that Dr. Lohia, if left at large, was likely to do some thing which will imperil the maintenance of public order generally or was it that he apprehended that Dr. Lohia's activities may cause disturbances in a particular locality? There is thus an ambiguity on the face of the order and, therefore, the order must be held to be bad. No doubt, the order also refers to the apprehension felt by the District Magistrate about Dr. Lohia's acting in a manner prejudicial to public safety. But then the question arises, what is it that weighed with the District Magistrate, the apprehension re garding public safety or an apprehension regarding the maintenance of law and order ? Again, would the District Magistrate have made the order solely on the ground that he felt apprehension re garding the maintenance of public safety because of the activities in which he thought Dr. Lohia might indulge ? It could well be that upon the material before him the District Magistrate would have refrained from making an order under r. 30 solely upon the first ground. Or on the other hand he would have made the order solely upon that ground. His order, however, which is the only

material on the basis of which we can properly consider the matter gives no indication that the District Magistrate would have been

prepared to make it only upon the ground relating to public safety. In the circumstances I agree with my brethren Sarkar and Hidaya~ tullah that the order of detention cannot be sustained. I have not referred to any decisions because they have already been dealt with

fully in the judgments of my learned brethren. In the result, therefore, I allow the petition and direct that Dr. Lohia be set at

liberty.

ORDER

In view of the majority opinion, we allow the Petition and order that the petitioner be set at liberty.