Topics Covered in this article
This case of Khudiram Das shows how liberal tendencies have influenced the Supreme Court in interpreting Fundamental rights. A great transformation has come about in the judicial attitude towards the protection of Fundamental Rights. This case is the petition for a writ petition of Habeas Corpus under Article 32 of the Constitution challenging the validity of the petitioner’s detention under an order of detention dated 3rd November 1973 passed by the district magistrate. Maintenance of Internal Security Act, 1971, Sec. 3. Satisfaction of detaining authority, if subjective-Power, if unreasonable-Right of Court to examine the record to see if detaining authority was influenced by material not disclosed to detenu-‘Other particulate meaning of-Duty to disclose to detenu.
Thus, Bhagwati, J., asserted, “it is not open to anyone now to contend that a law of preventive detention, which falls within Article 22, does not have to meet the requirement of Article 14 or Article 19.” As the Supreme Court has observed in this connection, ‘the detaining authority’s satisfaction is not a subjective one based on the detaining authority’s emotions, beliefs or prejudices. The Court does not, of course, go into the adequacy or sufficiency of the grounds on which the order of detention is based but merely examines whether, on the grounds given to the detenu, a reasonable person could have come to the conclusion to which the detaining authority did. Here the dividing line between subjective satisfaction and objective determination becomes somewhat blurred, but the line is still there.
- An order of the District Magistrate detained the petitioner under Sec. 3(1) and (2) of the Maintenance of Internal Security Act, 1971. The grounds of detention stated that the petitioner was involved in 3 incidents of removing transformers and theft of copper wires.
- Disrupting the supply of water and electricity and thus acted in a manner prejudicial to maintaining supplies and services essential to the community. The District Magistrate sent a report to the State Government, sending along with the report the petitioner’s history-sheet.
- After receiving the report from the Advisory Board, the State Government, confirmed the detention. In a petition under Art. 32, the petitioner challenged his detention on the following grounds:
(1) The three incidents of theft mentioned as grounds of detention were not sufficient, objectively, to justify the District Magistrate’s satisfaction that it was necessary to detain the petitioner,
(2) If the power to detain could be exercised on the detaining authority’s subjective satisfaction under the section, then it imposed. Unreasonable restrictions on the fundamental right of the petitioner under Art. 19(1),
(3) The history sheet of the petitioner was before the Dist. Magistrate, who, though he stated that beyond the three incidents mentioned in the grounds he did not take any other material into account in passing the detention order, must have been influenced by the other material in the history sheet. Since that material was not disclosed to the petitioner, there was a violation of Art. 22(5), and ss. 3 and 8 of the Act, and
(4) The petitioner’s history sheet was also before the State Government when it approved the order of detention and the State Government must also have taken the material into account in confirming the detention order and this was also.
- Contrary to the Constitutional mandate in Art. 22(5) and the legal mandate in ss. 3 and 8 of the Act to allow him to make an effective representation against his detention. Thus, dismissing the petition.
The case raised the question upon the validity of preventive detention (Article 22)
These three incidents were objectively not sufficient to justify such satisfaction, and the order of detention based on such satisfaction was bad. If the view is taken that the power to detain a person could be exercised by the detaining authority merely on its subjective satisfaction which could not be tested concerning objective standards, Section 3 of the Act, which empowered the detaining authority to exercise the power of detention based on its subjective satisfaction, imposed unreasonable restrictions on the fundamental rights of the petitioner under Article 19(1) and was ultra vires that article. The communication of the grounds of detention is also intended to sub serve the purpose of enabling the detenu to make an effective representation.
Suppose this is the true reason for providing that the grounds of which the order of detention is made should be communicated to the detenu. In that case, the “grounds” mean all the essential facts and materials taken into account by the detaining authority in making the order of detention and how the order of detention is based. The basic facts and material particulars which are the foundation of the order of detention, will also be covered by ‘grounds’ within the contemplation of Article 22(5) and Section 8, and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public interest.
“The petitioner has the right under Article 22(5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention ‘sufficient to enable him to make a representation which on being considered may give relief to him'(emphasis supplied). Nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu.Their determination is deliberately and advisedly left by the Legislature to the subjective satisfaction of the detaining authority.
This unique position, experience, and expertise would be best fitted to decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as regards these matters constitutes the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based.
The power of the Court to interfere in such a case is not as an Appellate Authority to override a decision taken by the statutory authority, but as a judicial authority which is concerned, and concerned only, to see whether the statutory authority has contravened the law by acting more than the power which the Legislature has confided in it. It is on the ground that this Court struck down the order of preventive detention made by the District Magistrate in Debu Mahto v. State of West Bengal 1974 4 SCC 135. The Court did not go into the adequacy or sufficiency of the grounds on which the order of detention was based but merely examined whether, on the grounds given to the detenu, any reasonable authority could come to the conclusion to which the District Magistrate did.
The next question which then arises for consideration is whether Section 3 of the Act insofar as it empowers the detaining authority to exercise the power of detention based on its subjective satisfaction imposes unreasonable restrictions on the fundamental rights of the petitioner under clauses (a) to (d) and (g) of Article 19, and is ultra vires and void. “In Gopalan case, the majority court had held that Article 22 was a self-contained code and a law of preventive detention did not have to satisfy the requirements of Articles 19, 14 and 21. The question stands concluded, and a final seal is put on this controversy and given these decisions, it is not open to anyone now to contend that a law of preventive detention, which falls within Article 22, does not have to meet the requirement of Article 14 or Article 19.
It is not only the right of the Court but also its duty to examine the basic facts and materials that actually and weighed with the detaining authority in reaching the requisite satisfaction. The material which was before the District Magistrate consisted of the facts and particulars extracted above from the history-sheet in addition to the three incidents set out in the grounds of detention. So far as the first circumstance is concerned, it was merely a generalization based on the three incidents referred to in the grounds of detention.
It did not refer to any other theft of copper wires beside the three enumerated in the grounds of detention. It did not constitute any additional material prejudicial to the petitioner, which could be said to have gone into the formation of the District Magistrate’s subjective satisfaction, and the non-disclosure of it to the petitioner did not have the effect of invalidating the order of detention.
There was no material before the District Magistrate, other than the three incidents set out in the grounds of detention, which went into the formation of the District Magistrate’s subjective satisfaction and which ought to have been communicated to the petitioner. A fortiori all the basic facts and materials that weighed with the District Magistrate in reaching his subjective satisfaction must be placed before the State Government. The State Government can, as a supervisory authority, decide whether the District Magistrate has improperly or adequately exercised the power of detention.
“The Preventive Detention Act, 1950, was considered by this Court and it is an established rule of this Court that a detenu has a right to be apprised of all the materials on which an order of detention is passed or approved,” and contended that the detenu was entitled to disclosure not only of the grounds of detention but also of “other particulars” communicated by the District Magistrate to the State Government under Section 3, sub-section (3).
- There can be no doubt that when the Court made these observations, what it had in mind was the materials which constituted the grounds of detention and not “other particulars”, for the making of the order of detention would be based on the former and not on the latter and so also its approval by the State Government.
- The Court merely reiterated the well-settled proposition that the materials constituting the grounds of detention on which the District Magistrate made the order of detention and approved by the State Government must be communicated to the detenu.
- There was no obligation on the District Magistrate or the State Government to disclose this material to the petitioner. The non-disclosure of it to the petitioner did not have the effect of invalidating the State Government’s approval to the order of detention.
- Therefore, the Court dismissed the petition and discharged the rule.
A detention order may be quashed on the ground of colourable exercise of power if there is no rational material for the detaining authority’s subjective satisfaction. The material is such that no reasonable person could arrive at such satisfaction on its basis.
A considerable delay between the date of making the detention order and the arrest of the person concerned thereunder has been held to throw doubt on the genuineness of the subjective satisfaction of the detaining authority. Now in the present case, as already pointed out above, the material from the history-sheet, which was not disclosed to the petitioner, did not form part of the grounds of detention on which the order of 853 detention was made by the District Magistrate and approved by the State Government, but merely constituted “other particulars” communicated by the District Magistrate to the State Government under section 3, sub-section (3).
There was, therefore, no obligation on the District Magistrate or the State Government to disclose this material to the petitioner and the non-disclosure of which to the petitioner did not have the effect of invalidating the approval of the State Government to the order of detention. Ground (d) must also, therefore, fail and be rejected.
Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free, would probably do it, it must necessarily proceed in all cases to some extent on suspicion or anticipation as distinct from proof. In the area of preventive detention, the range of administrative control over an individual’s personal liberty is vast. However, being conscious of the fact that to maintain constitutionalism within the country. If the country cannot get rid of preventive detention, it is necessary to reduce its misuse.