Supreme Court: In a case wherein, the question arose that whether the grounds provided in the detention order, which detained the petitioner were ambiguous and vague to exercise the fundamental right of making the representation guaranteed under Article 22(5) of the Constitution, the five-judges bench comprising Patanjali Shastri, C.J., Mehr Chand Mahajan, B.K. Mukherjea, S.R. Das* and Chandrasekhara Aiyar, JJ., by a 4:1 majority held that the grounds of detention provided in the present case were not insufficient to enable the petitioner to make his representation and the petitioner’s continuing detention was according to the procedure established by the law. While Mehr Chand Mahajan, J.**, dissented and opined that the grounds furnished to the petitioner were quite vague, indefinite and no representation or their basis could be made to the Government and ordered the release of the petitioner.
Background
The Saurashtra Government on 13-02-1952 under Section 3(1)(a)(ii) of the Preventive Detention Act, 1950 (‘the PD Act’) passed order of detention, by which the petitioner was arrested on 14-02-1952. On 15-02-1952, the Saurashtra Government supplied to the petitioner the grounds of detention, wherein it was stated that the petitioner had supplied arms and cartridges to Bhupat and his gang of dacoits from time to time during the last twelve months. It also stated that the petitioner had personally met Bhupat in August 1950 and thereafter, he had been sending him instructions to commit dacoity and murder. The petitioner remained in contact with him up to January, 1952.
The petitioner stated that the said order of detention was made in utter bad faith. Since, he was an active member of the Saurashtra Legislative Assembly and Leader of the Opposition, therefore on account of political antagonism, the Government had entertained the feelings of animosity towards him and out of sheer vindictiveness and with a view to stifle the opposition the impugned order was made.
Majority Verdict
S.R. Das, J. while delivering the verdict for Patanjali Shastri, CJ., B.K. Mukherjea, himself and Chandrasekhara Aiyar, JJ., opined that the petitioner had not succeeded in establishing the charge of bad faith against the Government. Before and after the last general election, the party in power had an overwhelming majority and it did not appear that the position was such that would lead the Government to take recourse to the drastic provisions of the PD Act. The Supreme Court opined that the speeches and the correspondence referred to, did not appear to support the inference sought by the petitioner.
The majority opined that the four speeches made by the petitioner in October 1950 and March 1951 on the floor of the House were ordinary opposition speeches and there was nothing particularly bitter or personal in them to arouse any deep resentment or such antagonism which would induce the Government to act vindictively. The majority opined that the respondent’s suggestion that the relation between the parties were not at all strained might be an exaggeration, the imputation of deep and intense of animosity imputed by the petitioner to the Government appeared to be overstatement.
The majority took note of the grounds of the detention, and opined that it was true that the grounds did not disclose the particulars regarding the kinds of arms and cartridges supplied or the persons through whom instructions were sent to Bhupat. The majority opined that the gist of the charge disclosed by the grounds were not so meagre to prevent the petitioner from making his representation under Article 22(5) of the Constitution to the State Government.
With regards to the petitioner’s contention that as the Ruler of Indian State had preserved for him certain rights and privileges under Article 362 of the Constitution read with Clause 12 of the Covenant entered by Rulers of Kathiawar, and the detention order violated personal rights, privileges and dignities of the petitioner. The majority opined that there was no provision either in the Criminal Procedure Code, 1898 and Civil Procedure Code, 1908 which provided any immunity to the ruling prince from detention under PD Act.
The majority opined that the grounds supplied in the present case were sufficient to enable the petitioner to make his representation and the petitioner’s detention was according to the procedure established by law.
Dissenting View
Mehr Chand Mahajan, J., maintaining his dissent from the majority view observed that the present petition raised two important questions. Firstly, whether the detention order was made in bad faith and secondly, whether the grounds supplied to the petitioner were such as to enable him, to exercise the fundamental right of making a representation under Article 22(5) of the Constitution.
Justice Mahajan opined that the plea of bad faith was a plea of fact and it had to be proved in the same manner as the other facts. However, in the present case, the Court was faced with a situation that the word of a highly respectable person was contradicted with the words of other similarly highly placed persons, and in such cases, the Court was bound to investigate the matter further and should not take its decision on the evidence furnished by the affidavits.
Justice Mahajan opined that the assertion made by the Chief Minister and the Home Minister that there was no political animosity between them was an overstatement and did not represent the true state of facts. The relations between the petitioners and the police were also not friendly as he hit them hard and accused them of complete incompetence and also ridiculed them for not being able to catch hold of Bhupat for a period of four years. The petitioner had also implied that the police were interested in their own safety than in discharging their duty as policemen. Justice M.C. Mahajan opined that it was difficult to believe that the police force would take such an accusation without the least feeling of animosity against the petitioner.
Justice Mahajan opined that it was also noticeable that Bhupat and his gang had been carrying on their campaign of dacoities and murders since 1948, the allegation that the petitioner had connection with the gang was made in 1952, with effect retrospectively from August 1950. It had not been disclosed when the State Government got information of such activities, and if they knew about them in 1950 and 1951, there was no explanation for not taking any action prior to February 1952. The Chief Secretary’s affidavit for connecting the petitioner with Bhupat’s activities was self-contradictory and founded on incomplete disclosure of facts. A complete picture of all the dacoities committed by the Bhupat had not been given in any affidavit and no inference could be drawn on materials, partly disclosed and partly withheld against the petitioner.
Justice Mahajan opined that the onus was on the person who charges another with bad faith to prove it. In circumstances, when the detaining authority was charged with bad faith and dishonesty and the person making such charge was not given the fullest opportunity to make out his allegations, and the matter was decided merely on affidavits, the truthfulness of which was not certain, that amounted to denial of justice.
Justice Mahajan opined that the grounds furnished to the petitioner were quite vague, indefinite and no representation or their basis could be made to the Government. The grounds did not disclose the particular kinds of arms and cartridges or the person to whom they were supplied. Further, the nature of communication and meetings were not disclosed, also the number of occasions on which such meetings were held was not disclosed.
Thus, considering the political background of Saurashtra and in view of animosity that the persons in power bore towards the petitioner, Justice Mahajan dissented from the majority opinion and ordered the release of the petitioner.
[Chandrasinhiji Dipsinhji v. Rajkot Central Jail, (1952) 1 SCC 769, decided on 26-05-1952]
*Note- National Security Act, 1980
Since, the Preventive Detention is no longer in force, preventive detention in certain cases is governed under National Security Act, 1980. Section 3 of the National Security Act, 1980 provides the power to make orders detaining the person. Section 8 of the National Security Act, 1980 provides that the grounds of detention order to be disclosed to the persons affected by the order. It states that when a person is detained in pursuance of the detention order, the authority making the order should as soon as maybe, but not later than five days, must communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
*Majority opinion by: Justice S.R. Das
**Dissenting opinion by: Justice Mehr Chand Mahajan
Advocates who appeared in this case :
For the Petitioner: N.P. Engineer, Senior Advocate (G.N. Joshi and A.A. Peerbhoy, Advocates, with him);
For the Respondents: M.C. Setalvad, Attorney General of India (A.R. Bavi, Advocate with him)
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