R.G. Shaw and Co. Ltd. Vs. Shaw Wallace and Co. Ltd. and Others - Court Judgment

Excerpt:
- [ a.n. ray, c.j.,; a. alagiriswami,; k.k. mathew,; p.n. bhagwati and; y.v. chand, jj.] art. 22(4)(a) of the constitution says that no law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless an advisory board has reported before the expiry of three months that there is in its opinion sufficient cause for such detention. the proviso to the article provides that nothing in sub-clause (a) shall authorise the detention of any person "beyond the maximum period prescribed by any law made by parliament under sub-cl. (b) of cl. (7)" of art.22. by reason of art. 22 (4) (b) a person can be detained for a longer period than three months without the necessity of consulting an advisory board if "such person is detained in accordance with the provisions of any law made by parliament under sub-cls. (a) and (b) of cl. (7)" of art.22. and art. 22(7) says "(7) parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an advisory board in accordance with the provisions of sub- clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an advisory board in an inquiry under sub-clause (a) of clause (4)." section 13 of the maintenance of internal security act, 1971 as amended by s. 6(d) of the defence of india act, 1971 enacts that the "maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under s. 12 shall be twelve months from the date of detention or until the expiry of the defence of india act, 1971, whichever is later." pursuant to an order of detention passed by the government of west bengal the petitioners were detained under s. 13 of the maintenance of internal security act, 1971. in a petition under art. 32 of the constitution it was contended (i) that the parliament was bound to prescribe the maximum period of detention under art. 22(7) (b) of the constitution in order that the provision of art. 22 (4) (a) might operate and is s. 13 of the act, as amended, did not prescribe the maximum period of detention, the confirmation of detention orders in terms of sec. 13 of the act was bad; (ii) that since the determination of the period of detention, namely. the expiry of the defence of india act, 1971 is depending upon the requirement of the proclamation of emergency, the period fixed in sec. 13 is dot "the maximum period" as visualised by art. 22(7)(b); and (iii) that the parliament has abdicated its power and duty to fix the maximum period to the executive as the determination of the operation of the proclamation of emergency is a matter within the discretion of the president and he is, therefore, the authority to determine the retirement age of the defence of india act. held : (per ray c. j., mathew and chandrachud, jj :) (1) there is no provision in the constitution which either expressly or by necessary implication compels parliament to prescribe the maximum period of detention under art. 22 (7) (b). the proviso does not proprio vigore compel the parliament to fix the maximum period. nor does art. 22(7) (b). on the other hand it expressly says otherwise. [841 b] the language of art. 22 (4) (b) is in marked contrast with that of art. 22 (4) (a) read with the proviso. art. 22(4)(b) makes it obligatory upon parliament, if it wants to pass a law for detaining a person for a period of more than three months, without making a provision in that law for obtaining the opinion of an advisory board. l841 de] under entry 3 of list iii of the seventh schedule, both parliament and state legislatures have plenary power to pass laws for preventive detention as respects the subjects mentioned therein. a power to pass a law for detention carries with it the incidental power to provide for the period of such detention. therefore, both parliament and state legislatures have power under the entry to provide for detention of a person for a specified period without fixing a specified period. the purpose of art. 22(4) (a) is to put a curb on that power. what the proviso means is that even if the advisory board has reported before the expiration of three months that there is sufficient cause for detention, the period of detention beyond three months shall not exceed the maximum period that might be fixed by any law made by parliament under art. 22(7)(b). the proviso cannot mean that even if parliament does not pass a law fixing the maximum period tinder art. 22(7) (b), the state legislatures cannot pass a law which provides for detention of a person beyond three months. the period of such detention, viz., detention beyond the period of three months, would then be a matter within the plenary power of parliament or state legislatures, as the case may be, as such a power is incidental to the power to pass a law with respect to the topics covered by entry 3 of list iii. [839 h; 840 a-d] therefore, but, for the proviso to cl. (4)(a) of art. 22, the act as it provides for the opinion of the advisory board, can authorise detention of a person for any period, by virtue of the plenary character of the legislative power conferred by the entry. the proviso says in effect that if parliament fixed the maximum period under art. 22(7) (b), the power of parliament and state legislatures to fix the period of detention in a law passed under the entry would be curtailed to that, extent. [840 e-f] gopalan v. the state of. madras, [1950] s.c.r. 88, krishnan v. the state of madras. [1951] s.c.r. 621 and state of west bengal v. ashok dey and others, [1972] 1 s.c.c. 199, referred to. (2) (a) the meaning of the word 'maximum' is "the highest attainable magnitude or quantity (of something); a superior limit," the meaning of the word 'period' is "a course or extent of time; time of duration," therefore the words 'maximum period' mean the highest or the greatest course or extent or stretch of time, which may be measured in terms of years, months or days as well as in terms of the occurrence of an event or the continuance of the state of affairs. [842 g] (b) it is not necessary that the parliament should have fixed a period in terms of years, months or days in order that it might be the "maximum period" for the purpose of art. 22(7)(b). as the object of preventive detention is to prevent persons from acting in a manner prejudicial to the maintenance of internal security or public order or supplies or services essential to the community or other objects specified by entry 9 list 1, the power to detain must be adequate in point of duration to achieve the object. if the maximum period can be fixed only in terms of years, months or days, certainly it would have been open to parliament to fix a long period in s. 13 and justify it as "the maximum period". [843 d-e] (3) it is not correct to say that the parliament in fixing the duration of the maximum period of detention with reference to an event like the cessation of the period of emergency, has in any way, abdicated its power or function to fix the maximum period or delegated it to the president. there can be no doubt that it is parliament that has fixed the maximum period in s. 13 of the act. it cannot be presumed that the president will act unreasonably and continue the proclamation of emergency even after the emergency has ceased to exist. seeing that the maximum period of detention has been fixed by s. 13 and that the discretion to fix the period of detention in a particular case has to be exercised after taking into account a number of imponderable circumstances three is no substance in the argument that the power of government to determine the period of detention is discretionary or arbitrary. [844 de; f] suna ullah v. state of j. & k. a.i.r. 1972 s.c. 2431, referred to per alagiriswami, j : (a) an analysis of the provisions of cls. 4 and 7 of art. 22 clearly shows that a maximum period of detention should be laid down by parliament whether it is a case of detention after obtaining the opinion of an advisory board or without obtaining the opinion of an advisory board. it is clear from the provisions of cls. (4) and (7) that a law providing for preventive detention can authorise the detention of a person for a longer period than three months only if an advisory board has reported that there is sufficient cause for such detention, that even with the advice of an advisory board the detention cannot exceed the maximum period prescribed by law made by parliament under sub-cl. (b) of cl. (7) and that if a person is detained in accordance with the provisions of any law made by parliament under sub-cls. (a) and (b) of cl. (7) the detention can be for a period longer than three months. therefore, the parliamentary statute can provide for preventive detention without obtaining the opinion of an advisory board by laying down the circumstances under which, the class or classes of cases in which it can be done. in that case the maximum period for which a person can be detained should also be specified by the parliamentary law, that is, a person cannot be detained for a period exceeding three months without obtaining the opinion of an advisory board unless the concerned provision of law also provides for the maximum period for which such a person is to be detained. [851 e; 849fg] (b) the word "may" 'in art. 22(7) amounts to "shall". the power to dispense with the opinion of an advisory board is given only to parliament. when it makes a law under cls. (7) (a) and (b) of art. 22 that also would bind the state legislatures in so far as they enact any legislation with regard to preventive detention. though the state legislatures have the power with regard to preventive detention, they do not have the power to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of an advisory board. that power is completely that of parliament and any state legislation will also be subject to the maximum period prescribed by parliament under a legislation made under art. 22(7) (a) and (b). [849 h; 850 ab] a. k. gopalan v. the state of madras, [1950] s.c.r. 88, s. krishnan v. the state of madras. [1951] s.c.r. 621, and state- of west bengal v. ashok dey, [1972] 1 s.c.c. 199. distinguished. (2) (a) the power to prescribe a maximum period given to parliament (referred to in this proviso) is to prevent the state legislatures making laws with regard to preventive detention without any maximum limit. the constitution makers apparently did not want the state legislatures to have an unfettered power with regard to preventive detention even in the field allotted to them under entry 3 of list iii of seventh schedule. [850 d-e] (b) an harmonious construction of the whole of arts. 22(4) and (7) would thus necessitate that parliament should provide a maximum period of detention not merely in respect of laws relating to preventive detention made by state legislatures but also its own laws regarding preventive detention. if the proviso to sub-cl. (a) contemplates parliament making a law providing for the maximum period of detention which cannot be exceeded by any state law regarding preventive detention the reasonable construction would be to hold that it is obligatory on parliament to legislate under sub-cl. (b) fettering the hands in the matter of legislating with regard to the maximum period of detention. if the parliament can fix the maximum period it can also alter it. if legislation with regard to the provisions of a maximum period is merely optional there was no need for the proviso at all. the concept of a maximum period of detention runs through the whole of art. 22(4) and (7). this is because while parliament and state legis- latures make laws it is the executive that makes orders of detention and if no maximum period of detention is specified by law it would be open to the executive to keep persons in detention indefinitely. [850 h; 851 a-c] per bhagwati, j : (1) (a) parliament is under no obligation to make a law under sub-cl. (a) of cl. (7). it is only if the requirement of obtaining the opinion of the advisory board is intended to be dispensed with that the parliament must make a law under sub-cl. (a) of cl. (7). if the parliament does not make such a law, cl. (4) (b) will not come into operation and detention for a period longer than three months whether under parliamentary law or under state law, would be impermissible without obtaining the opinion of the advisory board. the language of cl. (4) (b) posits clearly and in no uncertain terms that there must be law both under sub-cls. (a) and (b) of cl. (7) in order that cl. (4) (b) may operate. if there is a law only under sub-cl. (a) of cl. (7) and no law under sub-cl. (b) of cl. (7), a person cannot be detained longer than three months without obtaining the opinion of the advisory board as contemplated under cl. (4) (b). the making of a law by the parliament under sub-cl. (a) of cl. (7) is, therefore, obligatory if the detention is to be for a longer period than three months without the intercession of the advisory board. [824 e-h] (b) it is clear on a combined reading of the proviso and the main provision in cl. (4) (a) that the proviso is an integral part of the main provision. it is intended to cut down the large amplitude of the power of detention conferred under the main provision. the scope and boundary of the power of detention under cl. (4) (a) can, therefore, be defined only by reading the proviso and the main provision as one single enactment. if the proviso does not operate the main provision also would not, for the main provision is intended to operate only with the limitation imposed by the proviso. the proviso is not used in its traditional ortho- dox sense. it is intended to enact a substantive provision laying down as outside limit to the period of detention. if there is no outside limit by reason of parliament not having prescribed the maximum period under cl. (7) (b), the provision enacted in cl. (4) (a) cannot operate and in that event detention cannot be continued beyond three months, even though the opinion of the advisory board may be obtained. the proviso clearly posits the existence of a law made by parliament under cl. (7) (b) and makes it an essential element in the operation of cl. (4) (a). [859 b-e] a. k. gopalan v. state of madras, [1950] s.c.r. 88, s. krishnan v. the state of madras, [1951] s.c.r. 621 and state of west bengal v. ashok dey, [1972] 1 s.c.c., 199, distinguished. (c) parliament is free to prescribe or not to prescribe the maximum period under cl. (7) (b). but if no maximum period is prescribed neither parliament nor the state legislature can authorise detention for a long period than three months either under sub-cl. (a) or sub-cl. (b) of cl. (4). if the parliament or the state legislature wishes to authorise detention for a period longer than three months it must conform to the provisions of either sub-cl. (a) or (b) of cl. (4) and that requires that the maximum period must be prescribed by parliament by law made under cl. (7) (b). [860 h] (2) the highest or the greatest extent or stretch of time may be determined by means of a fixed date or in terms of years, months or days or by reference to the occurrence of an event. but whatever be the mode of determination the maximum period must be a definite period. what is necessary is that the point of time at which the event would happen must be definite. [863 e] in the instant case since it cannot be predicated with any definiteness as to when the emergency would come to an end the period prescribed by s. 13 of the act cannot be said to be the "maximum period" within the meaning of cl. (7) (b). parliament has not prescribed the maximum period of detention as contemplated under cl. (7) (b) and so no person can be detained under the provisions of the act for a period longer than three months. [866 c]order1. we have heard learned counsel for the parties. we are of the view that the reports submitted by the chairman of the meetings should be accepted and the resolutions passed at the meetings should be given effect to. we accordingly do so.2. the board as constituted after the election will take charge of the affairs of the company and discharge its duties in accordance with law. it is open to the reconstituted board to co-opt any person in accordance with law for the purpose of managing the affairs of the company.3. this order should not be construed as affecting the rights of the parties with regard to the ownership of the shares.4. these matters are disposed of accordingly.

Judgment:
ORDER

1. We have heard learned Counsel for the parties. We are of the view that the reports submitted by the Chairman of the Meetings should be accepted and the resolutions passed at the Meetings should be given effect to. We accordingly do so.

2. The Board as constituted after the election will take charge of the affairs of the Company and discharge its duties in accordance with law. It is open to the reconstituted Board to co-opt any person in accordance with law for the purpose of managing the affairs of the Company.

3. This order should not be construed as affecting the rights of the parties with regard to the ownership of the shares.

4. These matters are disposed of accordingly.