N. Ibotombi Singh, J.
1. By our short order dated 22-2-1983, we directed the release of the detenus, Shri prafulla Kumar Mahnnta and Shri Bhrigu Kumar Phukan, whose detention under the National Security Act, 1980, was challenged in these two writ petitions. We now proceed to state our reasons.
2. As similar questions of fact and law arise in these two petitions under Article 226 of the Constitution. they are disposed of by this common judgment.
The detenu, Sri Prafulla Kumar Mahanta, and detenu, Shri Bhrigu Kumar Phukan are President and General Secretary respectively of the All Assam Students Union (briefly AASU) Both of them are students of University Law College; Gauhati. They came back from New Delhi to Gauhati on 7-1-1983 after the tripartiate talk to find out solution on the foreigners' issue in Assam. They were arrested at the Borjhar Air Port, Gauhati on 7-1-1983. in pursuance of the separate order dated 6-1-1983 made by the District Magistrate, Kamrup, under Sub-section (2) of Section 3 of the Act The District Magistrate passed the order directing that the detenu be detained on the ground that it was necessary to prevent him from acting in a manner (i) prejudicial to the maintenance of sup-plies and services essential to the community and (ii) prejudicial to the maintenance of public order. Both the detenus were lodged in the Gauhati District. Jail. Later on, Sri Prafulla Kumar Mahanta was transferred to Dhubri District Jail and then to Nowgong Special Jail, and Shri Bhrigu Kumar Phukan was transferred to Silchar District Jail and then to Nowgong Special Jail.
3. On 12-1-1983, grounds of detention were served on them. In due course, both the detenus made representations to the State Government but the State Government rejected their representations on 27-1-1983. The detenus filed these petitions to this Court praying for a writ in the nature of Habeas Corpus under Article 226 of the Constitution.
4. A number of contentions were advanced at the hearing of the petitions but we propose to deal with only two of them which, in our opinion go to the root of the matter and which when accepted, in our opinion, would result in the invalidation of the order.
5. Before we embark on these questions, it may be useful to recall some of the observations made by the Supreme Court from time to time in dealing with the petition for habeas corpus when a person approaches the court for his personal liberty detained under a preventive law without trial.
6. 'Where the liberty of a subject is involved and he has been detained without trial, under a law made pursuant to Article 22, which provides certain safeguards, it is the duty of this Court as the custodian and sentinel on the ever vigilant guard of the freedom of an individual to scrutinize with due care and anxiety that this precious right which he has under the Constitution is not in any way taken away capriciously, arbitrarily or without any legal justification.' See Daktar Mudi v. State of West Bengal : 1974CriLJ1389 . V.R. Krishna Iyer, J. in Bhut Nath Male v. State of West Bengal : 1974CriLJ690 observed (at pp. 809-10): 'Judicial vigilance is tho price of liberty ; and freedom of the person is a founding faith of our Republic. ...Where freedom is in peril and justice is threatened a citizen shall receive the fullest protection from the court within the four corners of Article 22, benignantly stretched; and the safeguards of the Act. liberally interpreted within legitimate limits. The worth of the human person is a cherished value carefully watched over by the court. Such is the judicial perspective in the application of Article 22 to the MISA. which it contains, controls and animates. ...In a sense, the court's control through review is peripheral, processual and yet crucial.'
7. Equally forceful is the observation of Bhagwati J., in Smt. Icchu Devi Choraria : [1981]1SCR640 :
This constitutional right of life and personal liberty is placed on such a high padestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law. This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred. The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.
(emphasis supplied)
8. We now proceed to consider the contentions. The second ground of detention states that the petitioners attended a meeting on 4-12-1982, with some other persons named therein at Mirza, where it was decided to observe a two-hour Black-out throughout the State of Assam on 9-12-1982 from 1700 hours to 1900 hours and that the observance of the blackout seriously affected the maintenance of supplies and services essential to the community and resulted in several violent incidents winch took place at different places. A few of such incidents were cited in the list; annexed thereto and marked as Annexure III.
9. The contention raised is that unless the ground of order of detention specified the particular supplies and service essential to the community, which were considered to have been prejudicially affected, the order of detention is invalid. In support of the contention, reliance is placed on (i) Shri A.K. Roy v. Union of India : 1982CriLJ340 and (ii) an unreported judgment of this Court in Civil Rule (HC) No. 4 of 1983 decided on 2-2-1983, Sarat Mudai v. The District Magistrate, Nowgong. In that judgment, one of us (T. N. Singh J.) was a party Mr. Abdul Khader, counsel for the respondents, submits that the black-out onlv affected prejudicially the services in 'any establishment or undertaking dealing with production, supply and distribution of coal, power, steel or fertilizer', in Clause (xii), and not any other supplies and services specified in the Notification of the Government of India, Ministry of Home Affairs, New Delhi, dated 8-2-1982, in which the supplies and services essential to the community, for the purposes of detention under Sub-section (2) of Section 3, National Security Act, 1980 (65 of 1980), are notified. It is therefore, submitted that it was not essential to mention that particular supplies & services essential to the community prejudicially affected, and the order was in conformity with law.
9-A. The relevant excerpt of Government Notification dated February 8, 1982, published in Assam Gazette, Part IIA March 8. 1982, is as follows - 'NOW, THEREFORE, for the purposes of detention under Sub-section (2) of Section 3, National Security Act, 1980 (65 of 1980), the Central Government notifies the following supplies and services as supplies and services essential to the community namely' - Clause (i) to Clause (xvi).
10. This very question was subject-matter of discussion in Sarat Mudai (supra). In that case, this Court, after referring to the decision in A. K. Roy (supra), concluded that if the detaining' authority did not specify in the ground as to which particular supplies and/or services it had in mind while passing the order, it would be difficult to know whether it had applied its full mind with reference to any specified supplies and services. As the notified categories of supplies and services covered a very wide field, the detaining authority in the case of challenge to the order on the ground of non-application of mind could fall upon any one or other of the notification and contend that the activities of the detenus had prejudicially affected that service, even if that particular service might not have been in mind while passing the order of detention. It was further held that however prejudicial the activities of a person might be, all the notified categories of services could not be affected; and in such a situation, the omnibus mention of supplies and services would give a long handle of the fact to justify Us order on the score of application of mind, even though while passing the order the particular supplies and services affected or likely to be affected might not have been borne in mind. Any other view, it was held, would pose a possibility of abuse of power as a result of the absence of full application of mind. As the particular category of supplies and services was not named in the impugned order, it was held that there was non-application of mind and on that score the order of detention was held invalid.
11. We have given our anxious consideration to the question posed before us, and in our opinion, the decision in Sarat Mudai (supra) has correctly laid down the statement of law. We are in respectful agreement with the view expressed in that case, that where the detaining authority does not specify in the ground the particular supplies and services essential to the community which are prejudicially affected by the activity of the detenus, the order of detention under Sub-section (2) of Section 3, National Security Act, 1980, is invalid.
12. In A.K. Roy 1982 Cri LJ 340 (SC) (supra) it was emphasized that no person could be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless, by a law or order or notification made or published fairly in advance, the supplies and, services, the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed, are made known appropriately to the public. The reason behind it is that in the absence of proper definition or a fuller description of the term 'Services essential to the community', it would be difficult for any person to know with reasonable certitude as to which services were considered by the detaining authority as essential to the community.
13. No doubt, the Central Government has by now notified what are the supplies and services essential to the community for the purposes of the detention order under Sub-section (2) of Section 3 of the Act, following the decision of the Supreme Court in A.K. Roy (supra). It does not, however, follow that it is not essential to specify the particular supplies and services essential to the community enumerated in the Notification which are considered to have been affected prejudicially and in respect of which the detention is proposed to be passed, because the activities of the detenus might or might not have affected all the supplies and services under Clause (i) to Clause (xvi) enumerated in the list. As observed in Sarat Mudai (supra), in the case of challenge to the order on the ground of non-application of mind, the detaining authority could fall upon any one or other services and contend that the activities of the detenus had prejudicially affected that service even though the particular supplies and services were not borne in the mind while passing the order of detention.
14. Considered from another angle, apart from the possibility of wanton abuse of power by the detaining authority in passing the order of detention, such a ground which does not mention the particular supplies and services essential to the community which are said to have been prejudicially affected also suffers from the vice of vagueness The notification covers various services under each clause from Clause (i) to Clause (xvi). The blackout observed on 9-12-1982, between 17.00 hours to 19.00 hours could not only affect the services, namely, 'any service in any establishment or undertaking dealing with production, supplies or distribution of coal, power, steel or fertilizers,' if at all affected but also other essential services, to mention a few, such as, 'postal, telegraph or telephone service, including any service connected therewith,' in Clause (i) and 'any service in or in connection with the working of any system of public conservators, sanitation, water supply, hospital or dispensaries,' in Clause (x). It would not, therefore, be possible for the detenus to make an effective representation against the order of detention to the State Government in exercise of his constitutional right enshrined in Article 2(5) of the Constitution. The ground must contain material facts operating to generate the subjective satisfaction. In the case in hand, no such material facts are supplied to the detenu.
15. It is now well settled that a detenu has two rights under Article 22(5) of the Constitution:- (1) to be informed as soon as may be, of the grounds on which the order of detention is based, that is, the ground which led, to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him. The inclusion of an irrelevant or non-existent ground among other relevant grounds is an infringement of the first of the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement, of the second of the rights. In either case there is an invasion of the constitutional rights of the detenus entitling him to approach the court for the relief. The reason for saying that the inclusion of even a single irrelevant or obscure ground among several relevant and clear grounds is an invasion of the detenu's constitutional right is that the court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. See (i) Khudi Ram Das v. State of West Bengal : [1975]2SCR832 , (ii) Md. Yusuf Rather v. State of Jammu and Kashmir : [1980]1SCR258 , (iii) Smt. Icchu Devi Choraria v. Union of India : [1981]1SCR640 , and (iv) Smt. Shalini Soni v. Union of India : 1980CriLJ1487 :
16. In our opinion, the defect in the impugned order of detention, as discussed above, is fatal, and on this ground alone, the detenus are entitled to be set at liberty forthwith.
17. Another defect in the order of detention equally fatal may be dealt with. The first ground of detention recites that in pursuance of the decision taken at a meeting held on 19-11-1982. In Students' Day Home at Gauhati University. Assam Bandh was , observed throughout the Brahmaputra Valley District of Assam, causing disruption of the maintenance of supplies and services essential to the community; as a result of the bandh, shops and business establishments remained closed and private transport were off the road; the banking services rendered by the State Bank of India, United Bank of India, Federal Bank of India, etc., remained closed and the Regional Office of the Food Corporation of India which deals with supplies and distribution of food could not even properly function and even the plying of the public transport was seriously affect. Other parts of the allegations relate to the maintenance of the public order.
18. The question that emerges for our consideration is whether closure of shops and business establishments, as a result of the Assam Bandh, affected prejudicially the supplies and services essential to the community, within the meaning of Sub-section (2) of Section 3 of the Act. In our opinion, the supplies and services of shops and business establishments mentioned in the impugned order can, by no stretch of interpretation be embraced within any of the notified categories of supplies and services essential to the community, for the purpose of detention under Sub-section (2) of Section 3 of the Act. The supplies and services enumerated in the Government Notification cannot be enlarged or expanded at the whim of the detaining authority. It is beyond the competence of the detaining authority so to do. Learned counsel Mr. Abdul Khader for the respondents has not been able to give any convincing reply to this question. It is beyond doubt that the closure of shops and busincss .establishments as a result of the Assam bandh. is an irrelevant or extraneous matter. It has no rational nexus to the object viz. supplies and services: essential to the community, nor is it germane to the above object. It falls within the ratio laid down by the Supreme Court in Khudi Ram's case 1975 Cri LJ 446 and various other cases already referred to. The order of detention of this ground received the fatal blow. The order has to be struck down as invalid on this account also.
19. The District Magistrate should be satisfied bona fide about the prejudicial activities of the detenus on the basis of relevant materials. It is a case , where the detaining authority is to be held guilty of malice in law. It is manifest that the subjective satisfaction was made much mechanically. It took into consideration irrelevant matters, as pointed out above, which are unrelated to the object, viz., supplies and services essential to the community enumerated in Sub-section (2) of Section 3 of the Act.
20. The broad distinction between malice in law and malice in fact is described neatly by Viscount Haldane, L.C. in Shearer v. Shields 1914 AC 808: 'Between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law. although. so far as the stnte of his mind is concerned, ho acts ignorantly. and in that sense innocently. Malice in fact is quite a different thing; it means an actual malicious intention on the part of the person who has done the wrongful act, and it may be, in proceedings based on wrongs independent of contract, a very material ingredient in the question of whether a valid cause of action can be stated.'
21. For reasons given above, in our opinion, the defects in the order of detention on both the questions posed before us, are fatal violating Arl. 23(5) of the Constitution.
22. In the result, we hold the order of detention impugned in both the petitions invalid. The detenus are entitled to be released forthwith. Rule is made absolute in both the petitions. The petitions are allowed.
T.N. Singh, J.
23. I have had the advantage of perusing carefully the judgment prepared by my noble brother and I am in respectful agreement with the conclusions arrived at by him. However, I feel that it is necessary also to deal specifically with certain legal propositions stated before us by Mr. Khader, the learned Counsel for the respondents I propose, therefore, to deal with Mr. Khader's submissions because, as it appears to me, his considerable efforts were directed towards revealing those wider aspects of the law of preventive detention which, if left untreated, might affect adversely the progressive evolution of the law in the most sensitive area of personal liberty involving emotive issues. Indeed, my learned brother has eloquently pointed out in his judgment the lead given by the Supreme Court in this respect. By building judicial safeguards into the law of preventive detention. This Court has a similar constitutional responsibility and therefore embarking upon an area of inquiry hitherto untouched, would not be a futile exercise.
24. Mr. Khader, the learned Counsel appearing on behalf of the respondents has endeavoured strenuously to persuade us to reconsider our decision in Sarat Mudai v. District Magistrate Civil Rule (HC) No. 4 of 1983, decided on 2-2-1983 to which I was a party. In that case. as in these cases, the detention order was passed under Section 3(2) of the National Security Act, 1980, and one of the objectives mentioned in the order was 'maintenance of supplies and services essential to the community'. His submission is based on the following premises :
1. The detaining authority is required to state in the order merely one or more of the legal objectives specified in Section 3(2) and nothing more because his satisfaction is to be related merely to the objectives defined by the law. His satisfaction will be vitiated if any other extraneous matter is mentioned in the order inasmuch as that will speak of non-application of mind.
2. It is not humanly possible for the detaining authority to predicate the prejudicial activities of the person against whom the order is passed to prevent him from indulging in those activities.
3. It is also submitted that in A.K. Roy's case AIR 1982 SC 710 : 1982 Cri LJ 340 the vice of vagueness from the expression 'maintenance of supplies and services essential to the community' was removed by the court by requiring the State to specify by advance notification such supplies and services merely to forewarn the people. Court's apprehension in that case of 'wanton abuse of power' was founded merely on the vagueness of the expression.
25. To the first two submissions there is a short answer. The 'objective' defined by law is nothing else than the mischief sought to be prevented and the 'grounds' are only facts or activities constituting the antecedents of the detenu. It is settled law that the satisfaction of the detaining authority is to be directed to both 'grounds' and 'objectives' and is equally settled that the 'grounds' should not be vague or irrelevant, stale or non-existent. It cannot be disputed that these various methods of test are not directed to the same single purpose. Why, therefore, the same test should not apply in the case of 'objectives'?.
In Sarat Mudai's case (supra) we have not said that the order should contain any extraneous matter or that there should not be strict compliance with the letter of the law. On the contrary we insisted on precision in the matter of indicating the 'objective' to ensure 'full application' of mind and it is beyond my comprehension as to how this will result in 'non-application' of mind. What we said in respect of one of the legal objectives, namely, 'maintenance of supplies and services essential to the community', that it should appear in the order only in a particularised form to meet the objection of non-application of mind on any score We felt impelled to take this view as a result of the particular objective in question having assumed a variegated form in the broad spectrum of the Government notification issued pursuant to the decision in A. K. Roy's case 1982 Cri LJ 340 (SC) (supra).
26. Now, as to the second submission, It is also equally misconceived. Why the detaining authority in passing an order cannot, or should think that it is not possible, to have its mind directed to the particular mischief (any one or more of the particular variety of the legal objective in question) if the mischief is real and not imaginary and the order is meant to prevent such mischief? It is obviously nnt necessary for him. for this purpose,, to predicate the future activities of the person sought to be detained. The objection is apparently misdirected. by mixing 'objectives' with 'activities'. Mr. Khader has drawn our attention in this connection to certain observations made by their Lordships of the Supreme Court in few decisions with which I may now deal briefly although the objection does not obviously merit serious consideration as it is a matter apparently of terminological confusion.
27. At para 5 of the report in Atmaram's case : 1951CriLJ373 the observation is -.it is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list.
The underlined expressions obviously refer to the future activities of the detenu and not to the legal objectives ('objects'). Their Lordships do not say that the 'objects' cannot be or should not be particularised. On the other hand in the same paragraph it is observed that the satisfaction has to be directed positively to 'one or other of the three objects mentioned in the section'. Indeed, the observation at para 8 of the report in Khudiram's case : [1975]2SCR832 similarly support my view, expressed above. It is observed that the power of preventive detention was 'clearly a preventive measure' and that 'it was taken by way of precaution to prevent mischief to the community' It was also held that the subjective satisfaction must be directed to 'necessity of detention for a specified purpose.
(Emphasis added)
In Bhimsen v. State of Punjab : 1952CriLJ75 , to which our attention is drawn, it has been merely held that instances of past activities are relevant for the purpose of arriving at the satisfaction that the person concerned was likely to indulge in future in similar activities. Reliance was also placed on certain passages of paragraphs 10 and 11 of the report in Ram-mnnohar Lohia's case : 1966CriLJ608 wherein it was held that 'strict compliance with the letter of the rule is the essence of the matter'. Apparently neither decision supports Mr. Khader's contention for which no assistance can be derived also from the observation at para 24 of the report in Wasiuddin's case : 1981CriLJ1825 which is in line with one in Bhimsen's case (supra).
28. I. may now deal with the third and last submission of Mr. Khader on this point. It is true that in A.K. Roy's case 1982 Cri LJ 340 (SC) their Lordships addressed themselves to the question of vagueness of the provision but it is not difficult to see the underlying judicial policy which required their Lordships to undertake the exercise. It was held that vagueness of the expression may render the provision 'capable of wanton abuse' and, as a result there 'would be a flagrant violation of fairness and justness of the procedure which is implicit in the provisions of Article 21.' That this judicial policy cannot have any other aspect is difficult to admit because possibility 'of wanton abuse of power' may arise from other considerations also. One such consideration could be non-application of mind by the detaining authority and it is this consideration which weighed with us in holding in Sarat Mudai's case that 'any other view would also pose a possibility of abuse of power as a result of an absence of non-application of full mind' if the particular category of one or more of the several notified varieties or types of supplies and services was not indicated in the order itself. It cannot be disputed that 'fair and just procedure' would imply procedure that eschews possible abuse of power. It is the mandate of Articles 13(2), 19(1) and 21 that when such possibility impinges upon the fundamental right to personal liberty there is a duty on the court to interpret laws in a manner which is likely to fulfil the constitutional mandate (see Maneka Gandhi v. Union of India : [1978]2SCR621 ).
29. This judicial policy can also be said to be founded upon the rule of ultra vires inasmuch as preventive detentions are nothing but administrative detentions made, albeit, in the exercise of 'statutory discretionary power'. All administrative acts, however, must pass the litmus test of this rule. If any administrative act, in the exercise of a discretionary power, is done in 'bad faith or for a wrong purpose, or (in some situations) with gross unreasonableness, or if it fails to have regard to relevant considerations or is materially influenced by irrelevant considerations' such act will fall within the mischief of the rule which will make it void. (see S. A. de Smith, Constitutional and Administrative Law, 7th Edn. pp. 566-67). When, therefore, such act operates as a prior restraint on the liberty of the per-son, the judiciary will pre-empt it by interpreting the relevant provision authorising such restraint in a manner which will not offend the rule of ultra vires. At Common Law, it may be recalled, any restraint on the liberty of the person is, prima facie, illegal (see Entick v. Carrington (1558-1774) All ER Reprint 41). Common Law rules of statutory interpretation postulate that no interference with the liberty of the person is to be presumed in the absence of express words or necessary intendment. (See S. A. de Smith, Constitutional Judicial Review of Administrative Action, 3rd Edn. p. 87). This possibly as it appears to me, is the main reason why there is no peace time permanent preventive detention measure in England notwithstanding the stagnating situation in Northern Ireland.
30. Having thus disposed of all the three objections of Mr. Khader I do not feel persuaded to hold that our decision in Sarat Mudai's case require reconsideration. Accordingly I would, like to add that in the detention orders passed in these cases before us one of the objectives mentioned being 'maintenance of supplies and services essential to the community' and ground 1 in these cases, as respects the decisions to observe '24 hours Assam bandh' being related to the said objectives and, the particular supplies and services of the notified category not having been mentioned in the orders the impugned orders fall squarely within the mischief of the rule laid down in Sarat Mudai's case and these are, therefore, liable to be quashed. This aspect of the matter has been dealt with more elaborately by my noble brother who has also considered the facts as respects 'blackout' of Ground, 2 and has held the same ground also to be similarly tainted for the reasons stated by him with which I respectfully agree.
31. It is necessary, however, I feel, to deal with the main thrust of the basic argument of Mr. Khader who prefaced his speech by inviting the court to give due consideration to the situation prevailing in the State. It is submitted before us that the detenus/petitioners are 'powerful leaders' of a movement which has a reaction on the rights and liberties of some sections of the people who are opposed to the movement. He has urged us to construe the law as well as to adjudge the orders passed in these cases against this background. According to him not a doctrinaire, but a practical approach, is called for in these cases. I consider this to be a perilous course to be followed and find it unnecessary for the court to take into account matters which do not have a direct bearing on the facts of these particular cases before us, as revealed by the records. We are bound by judicial discipline to adjudge the validity of the order with reference merely to the constitutional mandate and the law applicable to these cases as settled by the decisions of their Lordships of the Supreme Court. Other holds are barred to us. Those may be open to the executive and to the legislature. How can the judiciary be charged with duty of taking care of any administrative expediency and any related or supposed inadequacy in law? Indeed, there is the constitutional mandate of Article 51A to be taken note of but it is not charged with patent force of legal sanctions by which the judiciary can give effect to the mandate. I have my doubts if it is open to the judiciary to deny to any citizen relief against infraction of any fundamental right on accounts merely of infraction by him of any right of any person or group of. persons resulting from the non-observance by the citizen of any of the fundamental duties as they appear in Article 51A. This question does not appear to have been raised in any case before any Court but there is apposite observation in Icchu Devi's case : [1981]1SCR640 of Bhagwati, J. who, speaking for the court, stressed primacy of the rule of law, saying -
We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammeled by the fact that this is a case where a possible smuggler is seeking his release from detention.
32. Mr. Khader has, nevertheless, strongly urged us to accept his submissions on this score as a proposition of law emanating from comparative jurisprudence and has drawn our attention to a passage from the Gardiner Committee's report on the Northern Ireland Emergency Laws:
While liberty of the subject is human right to be preserved under all possible conditions it is not, and cannot be, an absolute right because one man may use his liberty to take away the liberty of another and must be restrained from doing so. When the freedom conflicts the State has a duty to protect those in need of protection.' (See, Command 5847, para 15(London, 1975). It is necessary to point out that this was merely a prefatory observation and it was made in a different context which does not have much relevance for the Indian Constitutional set-up. Great Britain has no 'written guarantees' in its 'unwritten' Constitution and the pervasive effect of the fundamental concept of Parliamentary sovereignty had enabled the State to make detention laws there to curb 'terrorism' not only in derogation of the position obtaining in common law but, it was complained, also in derogation of Article 15 of the European Convention and committee was, therefore, appointed to inquire into the later aspect of the matter. However, the conclusions of the Committee's observation are to be noted inasmuch as Article 17 of the Convention did authorise derogation to meet the 'exigencies of the situation.
In short term, it may be an effective means of containing violence but the prolonged effects of the use of detention are ultimately inimical to the community life, fan widespread sense of grievance and injustice ...can be tolerated in a democratic society in the most extreme circumstances ...and retained only so long as it is strictly necessary. (see, Command 5847 para 148. (London) 1975).
Following recommendations of the Committee the Northern Ireland Emergency Provisions (Amendment) Act 1975 was enacted which contained a provision (in para 5(1) of Schedule I) for an automatic termination of detention at the expiry of 14 days if the representation of the detenu was not 'referred' earlier for disposal by the 'Adviser' for determination if detention was necessary 'for the protection of public' and whether the detenu was involved in 'terrorist activities.' Even the Amendment Act itself was a temporary measure.
33. In India we have in our Constitution our supreme lex and laws and action of the State can be tested only on its anvil. The impugned detention orders in these cases have to be construed in the light of the relevant provisions of the National Security Act as interpreted by their Lordships of the Supreme Court against the background of the Constitutional limitations of Articles 21. and 22(5) - It is not permissible to us to direct our attention to the 'exigencies of the situation' by importing considerations of the doctrine of necessity dehors the constitution which contains specific 'Emergency provisions' in Part XVIII to take care of such exigencies. Indeed, there cannot also be any comparison between the provisions of the North Ireland Act, and our National Security Act which is not meant to fight 'terrorism' and its objectives are not so widely stated as to include 'protection of public'.
34. Our attention in this connection was also invited by Mr. Khader to few decisions of their Lordships of the Supreme Court. more particularly to a passage in Dhananjay Das v. District Magistrate : 1982CriLJ1779 . I do not find in that decision anything which will support the proposition canvassed before us as can be gathered from following concluding observations made in the case at para 37 of the report:
The situation in Assam is a grave one and the agitation on the issue of foreigners has been going on for years and it has taken an ugly and serious turn, and the statements of facts made in paragraphs 2 and 3 of the grounds of detention in the prevalent circumstances in Assam relate to the maintenance of public order in view of the law laid down in the above case.
(Emphasis added)
35. I do not find inthe above observations any exhortation to adopt any ad hoc norm of interpretation of the law merely for the sake of the situation de- hors the facts of the cases in hand. Indeed, such an exercise is fraught with serious consequences which may result in negation of the rule of law and may smack of a tendency manifested in the English war-time cases (c. f. Liversidge v. Anderson (1942) AC 206 and Rex v. Halliday (1917) AC 206). It is common knowledge that these decisions are no lunger considered in England as good law and, as Sir Carleton Kemp Allen has noted in his renowned work, Law in the Making (7th Edition 1975 reprint at page 566), the 'ad hoc interpretation' adopted in these cases is not likely to be applied in future. Reference in this connection may be made to the decision in R, v. Governor of Brixton Prisons, Ex. P. Ahsan (1969) 2 QB 222.
36. I conclude my discussion on this point by referring, to two other decisions relied on by Mr. Khader, I am of the opinion that no broad proposition of law is laid down therein and the observations in those cases have to be read in the context of the facts of each case. In Ummu Saleerna's case : [1981]3SCR647 it was observed that 'law deals with facts of life' and that 'neither law nor life can be reduced to mere but despotic formulae.' This was made in connection with the quantification of the 'time imperative' in the matter of disposal of detenu's representation. Rupinder Singh's case (AIR 1983 SC 6,5) was concerned with the Akali morcha proposed to be staged in Delhi, As the morcha might have interfered with the Asiad Games resulting in a breach of the peace measures were adopted to intercept the movement of the Akalis. In that context it was observed that reasonable restraint on physical movement could be imposed 'for the protection of public property and avoidance of needless inconvenience to other citizens in their lawful pursuits'.
37. I have already indicated in my judgment my reasons for agreeing with the conclusions arrived at by my esteemed brother and I hold, with him, that the orders of detention in both cases are liable to be quashed and the rules are to be made absolute.