G.T. Nanavati, J.
1. This Court, in the case of Bai Amina v. State of Gujarat : (1981)GLR1186 , considered the nature and extent of the privilege available to the detaining authority, under Section 8(2) of the National Security Act not to disclose facts which it considers to be against the public interest to disclose. While this petition came up for hearing before a Division Bench, a contention was raised on behalf of the respondent-authorities that the law laid down by this Court in Bai Amina's case was not good law inasmuch as it is inconsistent with the decision of the Bombay High Court in Balkrishna Kashinath Khopkar v. The District Magistrate, Thana (1956) 58 BLR 614, which decision was a binding decision. The Division Bench was of the view that the point raised by the respondent-authorities is of great public importance and is 'required to be threshed out once and for all by a larger Bench'. Therefore, without expressing any opinion on the point raised, the Division Bench raised the following two questions and referred the same to a Larger Bench:
1. Whether the ratio of the Division Bench decision in Bai Amina's case : (1981)GLR1186 lays down that balancing of two rival public interests (i) public interest of disclosing grounds of detention to the detenu under Article 22(5) of the Constitution or under Section 8(2) of NASA ( Section 9(2) of PASA which is pari materia) and (ii) public interest underlying withholding of relevant material from the detenu, has to be done by the detaining authority while exercising his privilege under Article 22(5) or Section 8(2) of NASA ( Section 9(2) of PASA which is in pan materia) is in conflict with the ratio of the Division Bench decision of the Bombay High Court in Balkrishna Kashinath v. District Magistrate, Thane, (1956) 58 BLR 614. If yes, which view is preferable?
2. Whether even otherwise the ratio of the decision in : (1981)GLR1186 does not lay down a good law?
2. What is contended by the learned Additional Public Prosecutor is that the Division Bench in Bai Amina's case has proceeded on the premises that there is a conflict of two different public interests when such privilege is claimed. One public interest is an interest of the detenu to whom the grounds are required to be furnished with sufficient details so as to enable him to make an effective representation against his detention. The other public interest consists of the need to withhold some materials or particulars the disclosure of which would expose the source of the material to grave danger to his life or property in view of the fact that the person against whom he has given information is of a dangerous character. What is submitted is that this premise is basically wrong inasmuch as the interest of the detenu can be regarded as private interest only and not public interest. It is further submitted that it is settled law that as between public interest and private interest, private interest must give way and for that reason what is held by this Court in Bai Amina's case cannot be regarded as good law. For appreciating the two contentions raised by the learned Additional Public Prosecutor, it is necessary to carefully examine the said two decisions and to understand what has been laid down therein. The decisions can be said to be in conflict with each other, if the ratio of the decisions is inconsistent. Merely because some observations made in the decision appear to be inconsistent with some observations made in the other decision, it cannot be said that the ratio of the two decisions is in conflict with each other. Before it can be said that the two decisions are inconsistent, it will be necessary to appreciate the context in which such observations have been made and whether they form the ratio of the decisions.
3. In Bai Amina's case, this Court, while interpreting Section 8(2) of the National Security Act has held that while withholding the disclosure of materials, facts and particulars to the detenu on the ground that it would harm the public interest, another public interest, which requires the disclosure of all relevant particulars and materials on which the order of detention is based, with a view to affording an effective opportunity of representation to the detenu against the order of detention, must be borne in mind, and that the delicate balance between the two must be maintained by the detaining authority. This Court, after examining the right conferred by Clause (5) of Article 22 of the Constitution and the limitations placed upon it by Clause (6) of that Article, held that since Sub-sections (1) and (2) of Section 8 of the National Security Act substantially reproduce the provisions of Clauses (5) and (6) of Article 22 of the Constitution, what has been laid down in the context of the said constitutional provisions would apply proprio vigore to the obligation imposed and duty cast upon the detaining authority under the said statutory provisions. This Court has further held that it is only when public interest likely to be subserved by non-disclosure outweighs or overrides the public interest intended to be served by disclosure that the relevant information must be withheld. This Court has also held that this privilege can be claimed by the detaining authority only if he is satisfied, after proper application of mind to each relevant aspect, that it is against public interest to make the disclosure. It is further held that when the privilege of withholding facts and particulars is exercised, the detenu cannot be heard to say that in the absence of such facts and particulars, he is not in a position to make an effective representation, save and except when the exercise of privilege is challenged as malafide. While interpreting the provisions this Court further pointed out that the Courts rigidly insist that preventive detention procedure should be fair and strictly observed. The detaining authorities should exercise the privileges sparingly and 'in those cases only where there is full satisfaction'. While elaborating what can be regarded as 'full satisfaction', this Court made the following observations:
The there fact that the relevant particulars and materials are furnished to the detaining authority in confidence by some person is not by itself a sufficient ground for withholding the disclosure of such particulars and materials, if those materials and particulars have been relied upon against the detenu and the disclosure of such materials and particulars would assist the detenu in making an effective representation against his detention. The private promise of confidentiality must yield to the general public interest that is served by communication of such particulars and materials to the detenu in order to enable him to make an effective representation against his detention. Confidentiality is not a head of privilege; it is a consideration to bear in mind only if a more important public interest is served by protecting the particulars and materials from disclosure to the detenu either by reason of the nature and character or class of such particulars and materials or on account of a clear, certain and imminent danger of the sources of such particulars and materials drying up due to fear of reprisal, thus rendering the very exercise of power of detention nugatory. Documents such as cabinate minutes, confidential dispatches of departmental or inter-departmental authorities or papers involving the security of the State or diplomatic relations are a class of documents which it would be damaging to the national interest to divulge and there confidentiality is to be safe-guarded in the national interest. If the disclosure of the particulars and materials and the sources from which they are obtained is not to be made on the ground of promise of confidentiality made to the informant in view of his apprehension that he would be visited with dire consequences if the detenu came to know that he was the source from which the particulars and materials were gathered, the detaining authority must be fully satisfied that the apprehension expressed by the informant is honest, genuine and reasonable in the circumstances of the case. The general background, character, antecedent, crimical tendency or propensity, etc., of the detenu and such of those matters as are relevant in the context of the informent must be inquired into and carefully examined by the detaining authority with a view to satisfying itself that the alleged apprehension is not imaginary or fanciful or that it is not merely an empty excuse invented by the informant, inter alia, to protect himself against the falsity of his version being exposed by an effective explanation of the detenu or to hide his own involvement or to conceal his enmity with the detenu. The detaining authority must be further satisfied that the promise of protection against reprisal would not be an effective substitute for the promise of confidentiality and that unless confidentiality is guaranteed, material information would not come forth making it impossible to exercise the power of detention. If the promise of confidentiality has been extended by a subordinate or outside authority and the detaining authority entertains a reasonable doubt about the validity of such promise on the facts and in the circumstances of the case, or even where such promise is extended by the detaining authority but, upon a reconsideration, the detaining authority feels while furnishing the grounds, that the promise could not have been validly extended, it would be his constitutional and statutory obligation to make disclosure of the relevant materials and particulars to the detenu, notwithstanding the promise. A there moral obligation arising out of such a promise cannot be pressed into service even by the informant who cannot complain of the betrayal of trust, if the public interest or public welfare is to be served by making the disclosure. The maxim 'saluspopuli supreme lex' (regard for the public welfare is the highest law) is relevant in this connection. The maxim is based on the principle that there is an implied assent of every member of the society that his own individual welfare shall, in cases of necessity, yield to that of the community, and that his property and life shall, under certain circumstances be placed in jeopardy or even sacrificed for the public good (see Broom's Legal Maxims, Ninth Edition, page 1).
4. In paragraph 18 the following further observations have been made:
18. We consider it appropriate to observe also that an omnibus satisfaction, without close application of mind to each matter separately, with regard to the advisability of withholding, on the ground of public interest, the whole of any statement or document/the entire materials and particulars/the identity of sources from which they were gathered is not sanctioned by law. The satisfaction must be qua such statement or document and qua each particular and material and qua the identity of each informant. It must be arrived at upon the application of mind from the various angles relevant to each of them. The detaining authority must separately consider whether the statement or document or particulars and materials can be disclosed without disclosing the identity of the source and whether any part of such statement or document or particulars and materials can be disclosed without giving a distorted or misleading picture.
5. On careful reading of the said decision, it can be said that the ratio of the decision is that the privilege under Section 8(2) of the National Security Act can be claimed by the detaining authority only when it is properly and genuinely satisfied that it is against public interest to disclose the facts which are withheld while communicating the grounds of detention to the detenu, and that while deciding whether it is necessary to withhold the materials, facts and particulars to the detenu on the ground that it will be against public interest to do so, another public interest which requires disclosure of all the relevant materials and particulars on which the order of detention is based with a view to affording an adequate opportunity of making an effective representation to the detenu against the order of detention must be borne in mind and the delicate balance between the two must be maintained. If the privilege is claimed bona fide and after proper application of mind, then the detenu cannot legitimately complain that he has been deprived of his right to make an effective representation because of the vagueness of the grounds of detention. The observations which have been made by this Court in that case as regards the promise of confidentiality, etc., are by way of elaboration as to what can be regarded as sufficient or not sufficient for the purpose of arriving at the bona fide satisfaction of the detaining authority in that behalf.
6. In Balkrishna's case (supra) after noticing the well settled position of law that Article 22(5) affords to the detenu the important constitutional safeguards - (1) to be furnished the grounds on which the detention order has been made and (2) to give him an opportunity to make an effective representation against the order of detention; that in order that the detenu should be in a position to make an effective representation, the grounds must be furnished to him with as full and adequate particulars as the circumstances permit and that as the said right is made subject to Sub-clause (6) of that Article, the detenu may not be furnished with certain material facts, if the disclosure of such facts is regarded as against public interest. It is further held therein that as the privilege can only be claimed in public interest, while claiming the privilege, the detaining authority must act with a sense of responsibility and it must consider which facts should not be disclosed to the detenu by reason of the fact that it would be against public interest to disclose those facts.
6.1 If we examine the decisions in the case of Bai Amino and in the case of Balkrishna closely, it becomes clear that what has been briefly stated as the correct legal position as regard the nature and extent of the privilege in the case of Balkrishna, has been more elaborately stated in the case of Bai Amina. The inconsistency appearing in the said two decisions is more superficial than real. In the case of Balkrishna, the right of the detenu has been described as a matter of private interest whereas in the case of Bai Amina, this Court has regarded that interest as 'another public interest' and this according to the learned Additional Public Prosecutor, is the basic inconsistency in the said two decisions. In Balkrishna's case, the interest of the detenu has been described as a private interest while considering reasonableness of the restriction on the fundamental right of the citizen. The context in which the said right has been described as a matter of private interest becomes clear from the following observation made by the Court in that case:.But as a privilege can only be claimed in public interest, the Constitution has placed public interest above the private interest even though the private interest may mean the liberty of the citizen.
Thus, the said observation came to be made by the Court in Balkrishna's case keeping the detenu in mind while the observation which has been made by this Court in Bai Amina's case is with reference to the nature and extent of the constitutional right of the detenu when he is detained by way of preventive action. In a case where a person is detained by way of a preventive action, it is the liberty of an individual detenu which is involved and in that sense, it can be said that it is a matter of private interest and not public interest. But the right of the person so detained is recognised as a fundamental right by the Constitution and taking away of such right can only be in public interest. Adversely affecting liberty and such a right, therefore, can properly be regarded as a matter of public interest. We are, therefore, of the opinion that there is no inconsistency between the ratio of the division bench decision in the case of Balkrishna and the ratio of the decision of the division bench in the case of Bai Amina. We are also of the opinion that even otherwise also, it cannot be said that Bai Amina's case does not lay down good law. As stated above, the observation which have been made as to when and how the privilege can be claimed are made with a view to show what can be regarded as proper application of mind to all the relevant aspects; what can be regarded as sufficient for the purpose of claiming privilege; and, when exercise of the privilege can be regarded as bona fide. Whether that privilege has been exercised bona fide and properly or not obviously will have to be decided in each case by reference to the facts of that case. In the case of Balkrishna and also in the case of Bai Amina it has been so held. Considering the law relating to preventive detention, the nature of the right conferred on the detenu and the circumstances under which that right can be adversely affected, we do not think that what has been held in Bai Amina's case is not good law. Whether the detaining authority can be said to have applied its mind to all the relevant aspects properly or not would be a question of fact in each case and will have to be decided with reference to the facts of that case. Since the satisfaction in this behalf has to be of the detaining authority, obviously, the promise of confidentiality given by the person recording the statement cannot by itself be regarded as sufficient ground for withholding the disclosure of such particulars and materials. But if, after considering the general background, character, antecedent, criminal tendency or propensity, etc., of the detenu and the reluctance of the witnesses who gave the statements against the detenu, the detaining authority is satisfied about the necessity of withholding some particulars or materials, then it cannot be said that the same was not done in public interest, and that public interest likely to be subserved by non-disclosure did not outweigh or override the public interest intended to be served by disclosure of the relevant particulars and materials to the detenu.
7. Both the questions referred to this Larger Bench are, therefore, answered as above. This petition will now go back to the Division Bench for passing appropriate order thereon in light of what has been held by us.