brahmeshwar prasad vs the state of bihar and ors. on 14 february, 1950

8/10/2019 Brahmeshwar Prasad vs the State of Bihar and Ors. on 14 February, 1950

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Patna High Court

Brahmeshwar Prasad vs The State Of Bihar And Ors. on 14 February, 1950

Equivalent citations: AIR 1950 Pat 265

Author: Meredith

Bench: Meredith, S Prasad

JUDGMENT Meredith, C.J.

1. This is an application under Section 491, Criminal P. C. and also under Article 226, Constitution of

India, made on behalf of one Brahmeshwar Prasad through and by his brother Rudreshwar Prasad.

This detenu was a teacher in the Naugachia High English School. He was arrested on 3rd March

1949 under Section 161, Criminal P. C., and lodged in the Bhagalpur Camp Jail where he has been in

custody ever since. On 13th March, there was a detention order under Act V [5] of 1947. That Act

having been declared ultra vires and having been replaced by an Ordinance, there was a fresh

detention order under the Ordinance on 6th June. That Ordinance in turn, was declared-ultra vires

by this Court, and was replaced by Ordinance IV [4] of 1949, under which a fresh order was made

and served on 6th July. On 6th December, the present application was preferred. A rule was issued,

and 16th January was fixed for hearing. It eventually came up on 18th January, this Court having in

the meanwhile held that the provisions in the Ordinance for reference to an Advisory Council and

report by that Council, were mandatory, and non-compliance would make the detention illegal. The

Government Advocate, however, stated that a fresh detention order had been passed under

Sub-section (1) (a) of Section 2, Bihar Maintenance of Public Order Act (Bihar Act in [3] of 1950),

which had replaced the Ordinance on 4th January 1960, and he asked for a fresh adjournment to

prove that order. He was given an adjournment for seven days, and it has been established that in

facts a fresh detention order under Act in [3] of 1960 was passed on 16th January, and was served

on 16th.

2. By the time the matter once more came up for hearing, the New Indian Constitution had come

into force, and Mr. Basanta Chandra Ghose on behalf of the petitioner asked that the application

should be treated as one also under Article 326 of the Constitution, and contended that Act III [3] of

1960, at least in so far as it related to detention, had become void on 26th January i960, as being

repugnant to certain of the provisions prescribing fundamental rights in Pact III of the Constitution,

and consequently the detention, being under a void Act, had since the 26th January become illegal.

3. Article 13 (1) of the Constitution provides:

"All laws in force in the territory ot India immediately before the commencement of this

Constitution, in so far aa they are inconsistent with, the provisions of this Part, shall, to the extent of

such inconsistency, be void."

Mr. Ghosh'a contention is that there is an inconsistency, and that the inconsistent provisions ara not

severable from the remaining provisions with regard to detention,


Indian Kanoon - http://indiankanoon.org/doc/405631/ 1


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4. In order to understand his argument, it is necessary to set out briefly the scheme of the Act in

relation to detention. Under Section 1 (2), the Act is to remain in force for a period of two years from

the date of its commencement. Under Section 2 (1) (a) the Provincial Government, if satisfied with

respect to any particular person that, with a view to preventing him from acting in any manner

prejudicial to the public safety and the maintenance of public order, it is necessary so to do, may

make an order (a) directing that he be detained, and under Section 2 (5) so long as there is in force

in respect of any person such an order as aforesaid directing that he be detained, he shall be liable to

be removed to and detained in such place and under such conditions, including conditions as to

maintenance, discipline and the punishment of offences and breaches of discipline, as the Provincial

Government may from time to time by general or special order specific?

5. Under Section 5 (3) the Provincial Government shall constitute an Advisory Council, whenever

necessary, consisting of not less than three members who are or have been or are qualified to be

appointed as Judges of a High Court. Under Section 5 (1) within 15 days of the service of the

detention order, the grounds on which the order has been made are to be communicated to the

detenu as far as such communication can be made without disclosing facts which the authority

considers would be against the public interests to disclose, and such other particulars are to be

communicated as in the opinion of the detaining authority are sufficient to enable the detenu to

make, if he wishes, a representation against the order.

6. The detenu may, within 10 days of receipt of the grounds, make a representation, and it is the

duty of the authority to inform him of this right and afford him the earliest practicable opportunity

of making this representation. There is, however, a proviso that neither the detention order nor the

detention shall be invalid or unlawful or improper on the ground of any defect, vagueness or

insufficiency of the communication made to the detenu.

7. Under Section 6 (2) the Provincial Government shall, within six weeks of the service of the

detention order, place before the Advisory Council the grounds on which the order has been made

and the representation, if any, together with any other relevant material which the Provincial

Government may consider necessary.

8. Under Section 5 [4] the Advisory Council after considering the materials and, if necessary, after

calling for further information is to submit a report to the Provincial Government within 12 weeks of

the date of the service of the detention order.

9. Under Sub-section (5), after considering the report of the Advisory Council the Provincial

Government may confirm, modify or cancel the detention order, and under Sub-section (6) all

particulars contained in any correspondence between the Government and the Council and the

report made by the Council shall be confidential and, notwithstanding anything contained in any

law for the time being in force, no Court shall be entitled to require any public servant to produce

before it any of the said documents.

10. It will be noticed that the Government only has to consider the report, It does not have to act in

accordance with it. So, even if the Council advises that there are no sufficient grounds for detention,




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the Government may still confirm the detention order and the Court is also prevented from looking

into this matter by examining the report.

11. Under Section 4 (1), it is provided that the detention order shall be in force for a period not

exceeding six months from the date on which it is confirmed or modified under Section 5 (5), though

the Government may at any time revoke the order. Then it is farther provided that, if in the opinion

of the Government it is necessary or expadient to do so, it may at any time before the expiry of six

months and after giving an opportunity for a further representation and making a fresh reference to

the Advisory Council and considering its report, direct that the order shall continue in force for a

further period of six months from the date on which, but for such direction, it would have expired,

and thereafter if and so often as it is again extended by further a similar direction made in the same

manner.

12. I have dealt with these provisions in what seems to me a more logical order than that which

obtains in the Act. It will be clear that actually there is no express limit of time within which a case

has to be referred to the Advisory Council. Government has to make the reference within six weeks

of the service of the order it is true, but no period is prescribed within which the service must be

made, and the validity of the detention order has not been made to depend upon service, as is clear

from Section 2 (5). The same remarks apply to the report of the Advisory Council. This is to be made

within 18 weeks from the date of the service of the order, but again there is no provision under

which the order has to be served promptly. Thirdly, the Government only has to consider the report

of the Council and need not act in accordance therewith, so that, under the Act, detention may

legally continue without any report by the Council that it is, in its opinion, justifiable. It is so to

continue ordinarily up to six months from the date of confirmation. That is to say, assuming that the

confirmation is passed directly upon receipt of the Council'a report, it will continue for six months

plus 13 weeks from the date of the service of the order. But to this has to be added the indefiniteperiod before service of the order and also the indefinite period which the Government may take

under Section 5 (6) to consider the report of the Council before confirming it, and, as no time limit is

fixed, the Act leaves it open to the Government to extend the period by sitting indefinitely upon the

report of the Advisory Council, and it is impossible for the Court to examine whether there has been

any excuse or justification for so doing. Finally, still without any support in the opinion of the

Advisory Council, the Government may renew and renew (?) the order for successive periods, so that

the detention may be made to continue for the full two years for which the Act is to remain in force.

13. Mr. Ghogh argues, and, in my opinion, quite correctly argues, that these provisions are

completely inconsistent with those contained in Article 22, Clauses (4), (5) and (6) of Part III of the

Constitution. Article 22 (i) says :

"No law providing for preventive detention shall authorise the detention of a person for a longer

period than three months unless--(a) an Advisory Board consisting of persons who are, or have

been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration

of the said period of three months that there is in its opinion sufficient cause for such detention :

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the

maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or




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(b) such person is detained in accordance with the provisions of any law made by Parliament under

Sub-clauses (a) and (b) of Clause (7)."

14. That is to say, no law can authorise detention for a period longer than three months except

subject to condition (a) or condition (b). Condition (b) cannot enter into the picture in the case of a

law made before the Constitution comes into force, and, in any event, Act III [3] of 1960 clearly

provides for detention up to two years irrespective of any law made by Parliament under

Sub-clauses (a) and (b) of Clause (7). It also authorises detention up to periods much longer than six

months irrespective of whether the Advisory Council has or has not reported within three months

that there is sufficient cause for detention, or indeed reported within three months at all. As I have

pointed out, if service is delayed, the report of the Council may not be due until after the expiry of

three months.

15. Thus there is no getting away from the fact that the detention provisions in Act III [3] of 1960 are

completely inconsistent with the fundamental rights prescribed in Article 22, Clause (4), and

consequently, directly the Constitution came into force these provisions became void under Article

13 (1). The learned Government Advocate has not denied, and he could not deny, the inconsistency,

but has adopted three lines of reply; first, that steps were taken successfully to prevent the Act

becoming void ; secondly, that the inconsistent provisions are severable from the main provision for

detention, which, therefore, remains valid; and, thirdly, that, irrespective of whether the detention

provisions in the Act became void or not, the continued detention of the petitioner is valid under

and by reason of an order made by the President under Clause (7) of Article 22. I shall deal with

these conditions in turn.

16. The learned Government Advocate asked for time to prove that the President bad made an order

under Clause (7) which removed the inconsistency, and so prevented the provisions from becomingvoid. We gave sufficient time to produce such an order with the result that what purports to be a

printed copy of an order of the President together with a cyclostyled copy of what purports to be a

letter from the Joint Secretary to the Government of India to the Chief Secretary to the Government

of Bihar has been produced. I reproduce the first in full:

"MINISTRY OF LAW.

New Delhi, the 26th January 1950. No. C. O. 8.-- The following Order made by the President is

published for general information :

THE PREVENTIVE DETENTION (Extension of Duration) ORDER. 1950.

In exercise of the powers conferred by Sub-clauses (a) and (b) of Clause (7) of Article 22, of the

Constitution of India read with Article 373 thereof, and of all other powers enabling him in that

behalf, the President is pleased to make the following order, namely: --

1. (I) This order may be called the Preventive Detention (Extension of Duration) Order, 1950.




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(2) It shall come into force at once.

2. Where in any class of cases or under any circumstances specified in any law providing for

preventive detention in force at the commencement of the Constitution of India (hereinafter

referred to as 'the Constitution') any person was, immediately before such commencement or ia at

any time thereafter, in detention in pursuance of an order made under such law, such person may be

detained for a period longer than three months under such law without obtaining the opinion of an

Advisory Board in accordance with the provisions of Sub-clauses (a) of Clause (4) of Article 22, of

the Constitution.

3. The maximum period for which any person, as is referred to in para. 2, may he detained, shall in

the case of a person in detention immediately before the commencement of the Constitution, be

three months from such commencement, and in the case of a person detained in pursuance of an

order made after such commencement, be three months from the date of such order.

Rajendra Prasad, President." ' As will be seen, it is dated 26th January 1950, and it is numbered C.

O. 8. But there has also been placed before us the Gazette of India (Extraordinary) of 26th January

1950, containing a precisely similar order also dated 28th January, and also numbered C. O. 8, but

purporting to be signed not by Rajendra Prasad, President, but C. Rajagopalachari, Governor.

General. The letter to which I have referred is to the effect that through an oversight an in correct

copy of the Ministry's notification no. C. O. 8 was sent the previous day. The mistake which orginally

occurred in the Gazette Extraordinary dated 26th January 1950, containing this order was now

being corrected by ihe Press by the issue of an errata slip. Two correct copies of the order were being

sent for the use of the State Government. The copies of the order sent the previous day were to be

destroyed.

17. This letter has not been properly proved, nor has the printed order purporting to be signed by the

President. Under Section 78, Evidence Act, Acts, Orders or Notifications of the Executive

Governments may be proved by any document purporting to be printed by order of such

Government. Therefore, the original Notification in the Gazette of India, of the 26th signed by the

Governor-General may be said to be properly proved, but the document signed by the President is

not headed "Gazette of India". There is nothing to show if it has ever been printed in the Gazette of

India. It purports to be an order of the President, but it does not purport to have been published by

order of Government. It might have been printed by any one and it is, therefore, no proof of the

order of the President. Such an order, if not proved under Section 78, could be proved of course by

the production of the original or by production of a certified copy under Section 77, Evidence Act, or

possibly even by an affidavit by a responsible official. But none of those courses have been adopted.

We were asked by the learned Government Advocate to give a farther adjournment for a week to

produce the necessary proof. But for reasons which will appear we did not think it desirable or

necessary to do so, particularly as this case had already been adjourned on several occasions despite

the protests of Mr. Ghosh. The position is this. Either the order was originally made and signed by

the President, and there wag a mere mistake in printing it ia the Gazette, or it was orginally

mistakenly signed by the Governor General and correctly printed, but on discovery of the mistake it

was re-signed by the President and reissued. In the circumstances I will consider both suppositions,




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and, as, in my opinion upon neither supposition is the Act saved, it makes no difference, (I shall

note that after this judgment had been completed, namely, on Monday 13th February, a certified

copy of the President's order C. O. 8 has been placed before us).

18. Article 22(7) is as follows:

"(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)."

It has to be read with Article 873, which says that "until provision is made by Parliament under

Clause (7) of Article 22, or until the expiration of one year from the commencement of this

Constitution, whichever is earlier, the said article shall have effect as if for any reference to

Parliament in Clauses (4) and (7) thereof there were substituted a, reference to the President and for

any reference to any law made by Parliament in those clauses there were substituted a reference to

an order made by the President."

Therefore, for the words in Clause (7) "Parliament may by law prescribe" we may read "the

President may by order prescribe". I will proceed first on the assumption that the President did in

facts make the order on the 26th. In my judgment no such order made by bim under Clause (7)

could in any way prevent an Act becoming void under Article 13 (1), and this for two reasons. The

first and primary reason is that under Article 13(i), quite clearly, provisions become void, if they

become void at all, directly and instantaneously with the Constitution coming into force, whereas an

order by the President can only originate and become valid after the Constitution has come into

force. There can be no such order of the President except as a consequence of the Constitution

having come into force and given him power to make it.

That is to say, such order must be logically subsequent to the voidability which the coming into force

of the Constitution itself affects. That, in my opinion, follows directly and logically from the laws of

cause and effect. But it is in fact not necessary to enter into philosophical questions of the infinite

divisibility of time and the nature of simultaneity, because in fact we are here concerned with a time

lapse of over ten hours. The Constitution came into force on the midnight of 25th, and the Act, if it

became void at all, became void then. But the President did not enter upon his office until he took

the oath on 26th at 10-16 A. M.




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19. As to these propositions, there can be no question. Article 394 of the Constitution provides that

certain articles, with none of which we are concerned, shall come into force at once, and the

remaining provisions shall come into force on 26th January 1950. Article 367 (1) makes the General

Clauses Act, 1897, applicable, and the General Clauses Act provides in Section 5 (3) that, where an

Act is to come into force on a certain day, it shall come into force at midnight of the preceding day.

That is to say, the day begin directly after midnight of the preceding day. Under Article 60 the

President must make and subscribe an oath before entering upon hig office. The same thing is

apparent from the Constitution (Removal of Difficulties) Order no. I published with notification no.

C. O. 1 in the Gazette of India (Extraordinary) of 7th January 1950, which prescribes that such

person as the Constituent Assembly shall have elected as President shall, before entering upon his

office, make and subscribe the oath or affirmation prescribed in Article 60. Notification no. P.

35/4/49 Public, published in the Gazette of India (Extra, ordinary) on 26th January 1950, shows

that the Governor-General proclaimed the cow Constitution at 10-15 A. M. on 26th January. After

that the President took the oath, and took his seat as President of India and assumed the office.

Quite clearly the President could make no valid order until after 10.15 A. M. on 26tb, whereas those

provisions in Act III [3] of 1950 repugnant to the Constitution became void directly after midnight

on 25th. It is quite apparent that the subsequent order of the President could not restore an Act

which had already become void and ceased to exist. Nor does his order purport to do so.

20. My own opinion is that Article 22 (7) was never intended to be a means of avoiding the

operation of Article 13 (1). It is a provision for action not before, but after the Constitution has come

into force, and it was intended for prospective, and not retrospective operation ; and this is

particularly apparent if we read it in connection with Article 22 (4) (b). In other words, it relates not

to Article 13 (1), but to Article 13 (2), which says:

"The State ahall not make any law which takes away or abridges the rights conferred by this Part andany law made in contravention of this clause shall to the extent of the contravention, be void."

After Parliament or the President has in effect by order modified the provisions of Article 22 (4),

then a law may be made which perhaps otherwise would have been void or ultra vires under Article

13 (2), but no order or law made under Article 22 (7) can operate upon a law which has already

become void under Article 13 (1).

21. The second reason why the order of the President under Article 22 (7) cannot save the Act in any

view is that even in the light of that order, even taking Article 22 (4) as modified by that order, there

is still a clear repugnancy. Under Clause 3 of the order, the maximum period for which any such

person, as is referred to in para 2, may be detained shall, in the case of a person in detention

immediately before the commencement of the Constitution, be three months from such

commencement, so that Article 22 (4) (b) as so modified becomes in effect : No law providing for

preventive detention shall authorise the detention of a person for a longer period than three months

unless it also provides that such person shall not be detained for more than three months after the

commencement of the Constitution. But Act III [3] of 1960 authorises detention for a much longer

period without any such proviso or safeguard.




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22. Now let us examine the position on the assumption that the order under Article 23 (7) was made

not by the President, but by the Governor. General. The first difficulty is that, though signed by the

Governor-General, it does not purport to bo an order by the Governor-General. The recital is :

"In exercise of the powars conferred by Sub-clauses (a) and (b) of Clause (7) of Article 22 of the

Constitution of India read with Article 373 thereof and of all other powers enabling him in that

behalf, the President is pleased to make the following Order."

Therefore, it is still an order of the President, even though signed by the Governor-General. 23.

Undoubtedly the Governor-General could by a suitable order have removed the whole difficulty.

Under Article 892 (1).

"the President may, for the purpose of removing any difficulties, particularly in relation to the

transition from the provisions of the Government of India Act, 1935, to the provisions of this

Constitution, by order direct that this Constitution shall, during each period as may be specified in

the order, have effect subject to such adaptations, whether by way of modification, addition or

omission, as he may deem to be necessary or expedient."

And under Article 392 (3) "the powers conferred on the President by this article shall, before the

commencement of this Constitution, be exercisable by the Governor-General of the Dominion of

India."

The Governor-General under these provisions could have, before the commencement of the

Constitution, so modified it as to prevent any repugnancy arising under Article 22 (4) and any

voidability under Article 13 (1). But in that case he would have to make that order in his own

name---as his own order and not as an order of the President. In the second place, this is not whathe purported to do, and the order, though it contains a reference to Clause (7) of Article 22 and

Article 373 and all other powers generally, contains no reference to Article 392, and, thirdly, the

Government, having definitely taken the position that there was in fact no order of the

Governor-General, but only a clerical error in printing the Gazette, cannot, in the circumstances,

rely upon any order of the Governor-General.

24. There was another way in which it has been suggested the difficulty could have been avoided,

namely, by modification by the President of Act III [3] of 1950 under the provisions of Article 372

(2), so as to bring it into line with the provisions of Article 22. It is unnecessary to examine this since

it is not contended that any such action has been taken by the President. But it may be noted that

here the difficulty would still remain that, the Constitution having come into force before the

President assumed office, the law had lapsed and become void before the President could pass any

order, and the President under Article 372 (2) can clearly only adapt and modify a law which is still

existing and valid, and cannot recreate something which is already gone. We have to read the

various provisions of the Constitution so as to make them consistent, if possible, and therefore

Article 372 cannot have been intended to preserve laws or portions of laws which Act. 13 (1) renders

void. There is no inconsistency between Article 13 (1) and Article 373 (1) if we regard Article 372 as

applying to only such cases as do not come within the mischief of Article 13 (1) and that this is the




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correct interpretation is clear from the use of the words "subject to the other provisions of this

Constitution" in Article 372 (1), and the use of the words "in force" in Article 372 (2).

25. I now come to the second line of reply of the learned Government Advocate, namely severability.

26. Put crudely, the argument comes to this. If a law provides for detention of six months, but the

Constitution says that no law shall provide for detention for more than three months, then that law

is not wholly void, but can be regarded as a good law as regards detention up to three months. The

fallaciousness of such an argument is at once apparent. It would mean, not severing the bad portion

of the law from the good and leaving the latter, but substituting a new and different law in place of

the old. In fact it would mean legislation by the Court and the abolition of one law and the

substitution for it of a flew and different law.

27. In particular, however, the learned Government Advocate says: Let us blot out and remove all

the provisions which contain inconsistency--the provisions for duration and the Advisory

Council--and there still remains the bare provision in Section 2 (i) (a):

"The Provincial Government, if satisfied with respect to any particular person that with a view to

preventing him from acting. In any manner prejudicial to the public safety and the maintenance ot

public order it is necessary so to do, may make an Order (a) directing that he be detained."

He suggests that this is severable, and, though it fixes no duration for the detention, it can be

interpreted consistently with the Constitution as authorising detention up to three months, and it,

therefore remains valid. It does not in terms purport to authorise detention for more than three

months, but leaves the period of detention entirely indefinite, and it is, therefore, not inconsistent

with Article 22 (4).

28. The difficulty, however, is that the other provisions of the Act containing a number of safeguards

form an integral part of the legislation. A provision for bare detention for three months without any

safeguards at all is something entirely different from what the Legislature actually enacted in Act III

[3] of 1950. The Legislature obviously did not intend that a man should be detained even for three

months without certain safeguards being taken. For example, as I have pointed out, under Section 5

(4) the Advisory Council is to submit its report within 12 weeks of the date of the service of the

order, and the Government is to consider that report. True, no period is fixed for service, but

presumably the Legislature intended that the order should be served as soon as the man is detained.

Twelve weeks, it is to be noted, is less than three months. Therefore, the Legislature never enacted

that a man could be detained for even three months without certain steps being taken within that

period as safeguard, so that here again, if we adopt the course suggested by the learned Government

Advocate, we are in fact legislating. We are substituting a different law for the impugned law and, be

it noted, we are substituting a definitely harsher law. Who is to say that the Legislature would ever

have agreed to the enactment of such a law? The rule and test as to severability is, I apprehend, this.

If by taking away the bad parts, you in any way modify or alter what is left then the bad parts are not

severable. That, however, is what we are asked to do. The Act has to be taken as a whole. The

provisions for detention enacted by the Legislature cannot be separated from the safeguard 9, and




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the safeguards are inextricably mixed up with the provisions for duration. You cannot tear an Act to

pieces, take away the bad pieces, and then build a different structure by putting together the pieces

which re-main. That is legislation, and it is legislation on lines which the Legislature itself, had it

been put to it, might never have approved. I gravely doubt indeed whether the Legislature would

ever have consented to pass a bare Act for detention without any specification of duration, without

any provisions for safeguarding the rights of the subject, Yet that is just what would remain in the

present case if we take away the inconsistent provisions. I am, therefore, clearly of opinion that this

is a case where severance is not possible.

29. There remains the third argument of the learned Government Advocate, namely, that the order

of the President validates the detention pro-prio vigore', in short, that the President has himself

enacted legislation for detention which can stand by itself. In my opinion, the position has only to be

thus clearly stated to refute the argument. The President never purported to do anything of the sort,

nor has he any power to do so. Article 23 (7) merely entitles him to specify circumstances and define

classes in which a person may be detained under any pre-existing law for preventive detention, but

without those limitations, imposed by Article 22 (4). It does not authorise making a new detention

law that can stand by itself. Quite clearly, if, where the President makes the order, there is no

detention law in force, the President cannot make one, nor, as I have said, has he purported to do so.

He can merely provide for the extension in time of a detention under some subsisting law, and his

order ia in fact headed "The Preventive Detention (Extension of Duration) Order."

30. Thus, in my judgment, every line of reply to the contentions of Mr. Ghosh fails, and there is no

getting away from the fact that the detention provisions of the Act, and with it the power to detain,

lapsed on 26th January. Under Article 21 of the Constitution, no person shall be deprived of his life

or personal liberty except according to procedure established by law, and the detention cannot

legally continue for one moment after the lapse of the law.

31. As this case will almost inevitably go to the Supreme Court, it is advisable to deal briefly with Mr.

Ghosh's other and further contentions. He has argued that the order of the President under Article

22 (7) is a bad order because thereunder the President has delegated his power, and has not himself

specified clearly the circumstances and the classes of cases in which his order is to operate. I do not

consider that contention is sound.

32. Mr. Ghosh further argues that the proviso to Section 5 (1) of Act III [3] of 1960 is inconsistent

with the provisions of Article 22, Clause (5). The proviso says that neither the detention order nor

the detention shall be invalid or unlawful or improper on the ground of any defect, vagueness or

insufficiency of the communication of the grounds and particulars. Article 22 (5) says that when any

person is detained in pursuance of an order made under any law providing for preventive detention,

the authority making the order shall, as soon as may be, communicate to such person the grounda

on which the order has been made and shall afford him the earliest opportunity of making a

representation against the order. The only qualification is in Clause (6) that facts need not be

disclosed which such authority considers to be against the public interest to disclose, Tbe proviso,

however, goes much further. Under the proviso, the detention is still valid even if the grounds

communicated are to vague and indefinite as to amount to no ground at all and as to afford no




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opportunity to make a representation. For, example, under the proviso, the detention would still be

valid even if the only ground given is "we do not like your face." Clause (5) of Article 22 is

mandatory, and clearly means that detention in violation of this provision becomes illegal. But the

proviso makes the detention in violation of this provision nevertheless legal.

33. In my opinion, these contentions are correct, and I consider that the proviso, whatever may have

been the case before 26th January, became void from 26th January. I also consider, however, that

the provisions are clearly severable. Remove the proviso, and the real of the Act remains unchanged

and fully operative. Mr. Ghosh concedes that he can cite no decision in which it has been held that

the proviso is an integral part of the Act and is not severable.

34. If the proviso goes, we are simply taken back to the position as laid down by the Full Bench of

this Court in Nek Mohammad v. Province of Bihar, A I. R. (30) 1949 Pat. 1 : (so Cr. l. j. 44 P. B.),

namely, that we have to examine the grounds to see that they are sufficiently clear and definite to

enable a representation to be made. The grounds were served upon the detenu on 26th January,

within 15 days of the order, and they have been placed before us. Mr. Ghosh on the analogy of

certain Division Bench decisions of this Court, contends that they are vague and indefinite. I cannot

agree with him. They are set out at great length and in great detail partially in a printed document

extending over two foolscap pages, and supplemented by a passage in type, relating to this particular

detenu. It is that stated that he is an important member of the Communist Party of India, and the

document then goes on to state that the Communist Party of India has adopted a highly secret

programme of overthrowing through violence, the Government of India, as constituted by law, and

that this plan haa been put into operation. It is stated that Government have information that

Communist cells functioning in Bihar have received secret directives to build up illegally large stocks

of firearms and ammunition, to smuggle explosives on a large scale, and to collect implements for

breaking jails, and that there is intention to exploit the Services to turn against Government so as tobring about a complete collapse of the Government and the Administration. Then it is said that

Government had information regarding the Party's plan to carry out sabotage of important

industrial and other installations. It is said that in recent weeks mobs under Communist influence

have violently attacked police escorts in attempts, sometimes successful to rescue Communists from

custody, and Government has reasons to suspect strongly that the Party has already resorted to

murder for defection from and acting against the interest of the party. It is unnecessary to set out in

detail the rest of the printed portion. The typed portion goes on to say that Shri Brahmeshwar

Prashad has been a very active member of the Communist Controlled Students' Federation, and,

although a school teacher, he continued to be one of the active members of the Communist Party,

and Government is satisfied that, using his somewhat special position in the village community as a

school master, he has been responsible for secretly carrying on propaganda in the area between

Naugachia and Bihpur explaining the Party's programme to overthrow Government through

violence. Even on his arrest he delivered an inflammatory speech to the students, who had

assembled urging them to carry on the activities of the Communist Party of India during his

absence.

35. I am not in the least concerned with whether these allegations, either with regard to the

Communist Party generally or with regard to Brahmeahwar Praead in particular, are true or false.




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But they are certainly quite clear and definite and sufficient to enable a representation to be made,

and indeed Mr. Ghosh tells us that the detenu has already made a detailed representation, and that

in itself indicates, to my mind, that the grounds furnished are not vague.

36. Therefore, I am of opinion that, were the detention otherwise legal, the detenu would sot be

entitled to release on the ground of any vagueness or insufficiency in the grounds and particulars

furnished.

37. Next, Mr. Ghosh argues that the fresh order against the detenu made under Act III [3] of 1960

on 16th January was not bona fide because it wag made only because the Government had reasons

to believe that this Court was going to declare that the detention was illegal for non-compliance with

the mandatory provisions in the Ordinance regarding the Advisory Council. Even upon the

assumption that Government did make this fresh order because it was anticipated that the Court

was going to declare the detention illegal, that does not make the order mala fide or a fraud on the

statute. If Government was of opinion that the continued detention of this man was necessary for

the maintenance of public order, it was certainly quite natural and proper, as soon as any

irregularity was realised in the detention, to take steps to make it proper and regular. What else

could Government be expected to do in the circumstances? Such circumstances do not justify the

inference that Government is merely attempting to frustrate and override the orders of this Court.

They rather suggest that Government's sole object is to secure the detention and custody of a man

they, rightly or wrongly, regard as dangerous.

38. Mr. Ghosh further argues that the provisions of Section 5 (6) of Act III [3] of 1950 are

inconsistent with Article 23 of the Constitution. The effect of Article 22 (4) is that no one is to be

detained for more than three months unless in accordance with a report of the Advisory Council that

there is sufficient cause for such detention. That necessarily means that the Court, in order toexamine whether a detention is in accordance with this mandatory provision must be enabled to see

and examine the report of the Advisory Council. But Section 5 (6) of the Act says that all particulars

contained in any correspondence between the Provincial Government and the Advisory Council and

the report made by the Advisory Council shall be confidential, and, notwithstanding anything

contained in any law for the time being in force, no Court shall be entitled to require any public

servant to produce before it any of the said documents. In short, this provision is designed to

prevent the Court from ascertaining if detention beyond three months is in accordance with the

report of the Advisory Council. As such it appears to be calculated to evade the safeguard laid down

as a fundamental right in the Constitution, and there is an inconsistency which renders it void. It is,

however, in my opinion, severable, and the rest of the Act could stand unaltered after its excision.

This would merely mean that the Court, despite this provision, could call for and examine the

report, but it would not make the detention illegal if found to be in accordance with that report.

39. As, in my view, for the reasons given in the first part of this judgment, the detention of

Brahmeshwar Prasad has become illegal since 26th January, I would order his immediate release

from custody.

Sarjoo Prasad J.




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40. This rule relates to an application filed under Section 491, Criminal P. C., on behalf of the

petitioner. The petitioner has been in detention ever since 4th March 1949 under successive orders

of detention passed by Government. He filed this application in December 1949 but the application

was ordered to be put up for admission after the decision of criminal Miscellaneous no. 781 of 1949

which has since been disposed of on 23rd December 1949. Eventually this application was admitted

and rule issued on 4th January 1950, returnable within ten days. When the application again came

up for hearing on 18th January 1950, it was stated by the learned counsel for the Crown that in this

case a fresh order of detention has been passed against the petitioner under Clause (a), Sub-section

(1) of Section 2, Bihar Maintenance of Public Order Act, 1949 (Bihar Act in [3] of 1950). The

petitioner's counsel appeared to have no instruction on the point in regard to this fresh order of

detention, and counsel for the Crown wanted time to intimate to the Court if this fresh order of

detention had been served on the petitioner or not. He was accordingly allowed time to do so.

41. The petitioner alleges that his detention is illegal, and that the order of detention passed against

him under Section 2 (1) (a) of Ordinance IV [4] of 1949 had spent its force, and in any case the

mandatory provisions of the law not having been complied with, it was not open to Government to

detain him any further. In view of the fact that a fresh order, of detention under Bihar Act III [3] of

1950 had been passed on the petitioner, the question whether or not his detention under the

previous order passed under ordinance IV [4] of 1949 is not of much importance. If the matter had

rested there, we would have had to hold that the detention of the petitioner is not illegal because of

this fresh order passed under Bihar Act III [3] of 1950. A Bench of this Court, when dealing with a

similar question in Criminal Misc. no. 30 of 1950 to which I was also a party, held:

"The order, prima facie, is a regular order under the provisions of the Act, and it is, therefore,

necessary for the petitioner to show that what happened previously in some way operates as a bar to

prevent the legality of the subsequent detention order."

It was also held in that case that fresh detention orders can be passed as it was clear from the

provisions of Section 2 (1) (iii) of the Ordinance and those of Section 4 (i) (iii) of the Act. It is true

that in that case a question was raised as to Bihar Act III [3] of 1950 being ultra vires in view of the

fact that Section 2 (6) to (16) and Section 8 of the Act contain certain provisions dealing with the

case of an absconder which were alleged to be repugnant to the procedure laid down in the Criminal

Procedure Code. The Court considered irrelevant to answer this question as the provisions referred

to therein were entirely separate and severable from the provisions which relata to the validity of the

order of detention, and the procedure prescribed for the making of that order. In view of that

previous decision we would have been bound to hold that this order of detention passed against the

petitioner under Act III [3] of 1950 was a valid order and could not be interfered with by this Court;

but by the time the matter again came up for hearing, fresh developments took place.

42. On the morning of 26th January 1950, "The Constitution of India" came into operation, and

when the matter was again put up before us, the advocate for the petitioner filed a fresh affidavit on

3lst January 1950, in which he claimed that Act III [3] of 1950 was ultra vires the Bihar Legislature

and the provisions of Section 2 (1) (a) read with SECTIONS 4 and 6 of the said Act were inconsistent

with the provisions of Part III of the Constitution of India, and therefore, void. It is obvious that Act




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III [3] of 1960 could not be challenged as ultra vires on account of its being inconsistent with the

provisions of the Constitution of India. What the petitioner actually meant was that Act III [8] of

1950 was void on account of its being inconsistent with the provisions of the Constitution Act.

43. The argument, therefore, which has been advanced before us proceeds upon the footing that the

provisions relating to preventive detention under Act III [3] of 1960 are repugnant to the provisions

in part III of the Constitution of India, and, as such, the Act is void on account of the repugnancy.

This argument has raised an important constitutional question, and we have, therefore, to examine

the implications of this question in all its bearings.

44. In the first place, it has to be seen if the provisions of the Bihar Act III [3] of 1960 relating to

preventive detention are really in conflict or inconsistent with the provisions relating to

fundamental rights in Part III of the Constitution of India; and, in the second place, if those

provisions are inconsistent, whether Bihar Act III [8] 1960 is void to the extent of such

inconsistency or it is void as a whole because those provisions constitute an integral part of the Act.

45. I shall briefly refer to the relevant provisions of the Constitution of India in order to appreciate

the point which arises in this case.

46. Article 13 (a) of the Constitution of India says:

"All laws in force in the territory of India immediately before the commencement of this

Constitution in so far as they are inconsistent with the provisions of this Part, shall to the extent of

avion inconsistency, be void."

Now Article 13 (8) (b) defines what is meant by the term "laws in force" mentioned in Article 13 (1).It says:

"'laws in force includes laws passed or made by a Legislature or other competent authority in the

territory of India before the commencement of this Constitution and not previously repealed,

notwithstanding that any such law or any part thereof may not be then in operation either at all or in

particular areas."

The Bihar Act III [3] of 1950 would evidently, therefore, come within the definition of "laws in force"

in the territory of Bihar which is a part of territory of India ''immediately before the. commencement

of this Constitution."

47. Now, Article 21 of the Constitution of India says:

"No person shall be deprived of his life or personal liberty except according to procedure established

by law."

Then comes Article 22 which is perhaps the most relevant article which falls to be scrutinised in this

case. Article 32 (1) says:




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"No person who is arrested shall be detained in custody without being informed, as soon as may be,

of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a

legal practitioner of his choice."

The words "as soon as may be" are significant. It enjoins that no person who is arrested shall be

detained in custody unless he is informed, as Boon as may be, of the grounds for such arrest and

detention. I may then refer to Sub-clause 3 (b) of Article 22 which says:

"Nothing in Clauses (1) and (2) shall apply to any person who is arrested or detained uncler any law

providing for preventive detention."

In other words, this is an exception to the general provisions contained in Clauses (1) and (2) of

Article 22. Then Article 32 (4) proceeds to lay down a procedure for preventive detention which

says:

"No law providing for preventive detention shall authorise the detention of a person for a longer

period than three months unless an Advisory Board consisting of persons who are, or have been, or

are qualified to be appointed as, Judges of a High Court has reported before the expiration of the

said period of three months that there is in its opinion sufficient cause for such detention."

Then comes a proviso which says:

"Provided that nothing in the sub-clause shall authorise the detention of any person beyond the

maximum period prescribed by any law made by Parliament under Sub-clauses (b) of Clause (7) or

in those cases where such person is detained in accordance with the provisions of any law made by

Parament under Sub-clauses (a) and (b) of Clause (7)."

48. The analysis of this provision shows, in the first place, that it does not authorise the preventive

detention of any person for a period longer than three months under any law; but it makes an

exception for detention for a longer period in two oases only: (1) The first exception is where an

Advisory Board has reported before the expiration of the period of three months that there in its

opinion sufficient cause for such detention. The proviso to Sub-clause (a) of Clause (4) of that Article

constitutes a further safeguard, namely, that even by this exceptional procedure which arises on the

report of an Advisory Board, there shall be no detention of any person beyond the maximum period

prescribed by any law made by Parliament under Sub-clause (b) of Clause (7). (2) Then comes the

independent sub Clause (b) of Clause (4) of the Article which makes another exception for detention

beyond the maximum period of three months: namely, where such person is detained in accordance

with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7).

Shortly put, therefore, Sub-clauses (a) and (b) of Clause (4) provide exceptions for detention beyond

the period of three months (i) where an Advisory Board reports to that effect, and (ii) where

Parliament has made any law for such detention as contemplated by Clause (7) of that Article.

49. We next come to another clause of Article 22, and that is Clause (5). This clause provides that

where a person is detained in pursuance of an order made under any law providing for preventive




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detention, the authority making the order shall, as soon as may be communicate to such person the

grounds on which the order has been made and shall afford him the earliest opportunity of making a

representation against it. But Clause (6) of the Article adds a rider to this clause, namely, that the

authority making such an order, as is referred to in Clause (5), shall not be bound to disclose facts

with such authority considers to be against public interest to disclose. I shall have to refer to these

clauses of Article 23, namely, Clauses (6) and (6) together when I come to consider the

corresponding provisions of the Bihar Act, III [3] of 1960.

50. Then comes Clause 7 of Article 23 which is another very pertinent clause. I have already said;

when dealing with Clause (4) of the Article, that it is referred to in Clause (4) in connection with two

important matters. In the first place, even on the report of an Advisory Board, it would not be open

to the authorities to detain a person for any period longer than the maximum period prescribed by

any law framed by Parliament under Sub-clause (b) of this Article. Sub-clause (b) of this Article,

therefore, gives power to Parliament to prescribe by law the maximum period for which any person

in any class or classes of oases may be detained under any law providing for preventive detention. In

the second place, Sub-clause (b) of Clause (7) gives a sort of a plenary power to Parliament to

prescribe by law 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).

51. If, therefore, Parliament proceeds to act under Clause (7) of Article 22 and prescribes by law that

a person may be detained for a period longer than three months in a certain class or classes of cases

or under certain circumstances, it may do so notwithstanding the provisions of Clause (4) of Article

22. This power which is given to Parliament, therefore, is important in two ways. On the one hand, it

may provide the maximum period for preventive detention thereby limiting the period provided byany law for that purpose. On the other hand, it gives a power to Parliament to prescribe a-longer

period for detention than that contemplated by Clause (4) of the Article and irrespective of the

procedure laid down in that Article for reference to any Advisory Board. Therefore, it comes to this

that even if a law may prescribe for preventive detention a period longer than that contemplated by

Clause (4) of Article 22, and the procedure for reference to an Advisory Board laid down therein,

that law for preventive detention may still continue to be good and valid if Parliament acting under

Clause (7), Article 22 prescribes a longer period for detention irrespective of the provisions of

Sub-clause (a) of Clause (4) of that Article, subject of course to the limitations prescribed in Clause

(7) itself.

52. Having examined the provieiona of Article 33 which, as I said, are most important provisions of

the Constitution of India dealing with the protection against arrest and detention, I shall now

proceed to examine the relevant provisions of the impugned Act, namely, the Bihar Act III [3] of

1960.

53. Under Section 3 (1) (a), Bihar Act, if the provincial Government is satisfied with a view to

preventing a person from acting in any manner prejudicial to the public safety and the main,

tenance of public order it may make an order directing his detention. Then under Section 6 it is




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provided that where an order is made under Clause (a) of Sub-section (1) of Section 3 within fifteen

days of the date on which the order is served on the person in respect of whom it is made, the

authority making the order shall communicate the grounds on which the order has been made

against him and such other particulars as in the opinion of the authority may be sufficient to enable

him to make a representation against the order. It is to be noted that there is no period provided in

the Act during which the order can be served upon the person concerned. There is a period of

limitation provided for making a representation against the order by the detenu which ia within

fifteen days from the service of the order, but there is no period of limitation provided during which

the order has to be served on the detenu. It may be argued on behalf of Government that in the

absence of any such period it has to be assumed that the service of the order should be made within

a reasonable time. In fact, in this case the order passed under the Act was served almost

immediately but that is immaterial when we are examining the provisions of the Act itself. There is

obviously a lacuna in the Act in regard to this period. If, therefore, Government were to delay the

service of the order (even assuming for certain reasonable administrative difficulties) for over a

period of three months, the provisions of the Act enable them to do so; and they can thereby

continue to detain the individual without any service of the order for a period longer than three

months. This would be in apparent conflict with Clause (4) of Article 22 of the Constitution of India.

The date of service of the order is very material inasmuch as the other procedure laid down in

Section 5, Bihar Act only arise after the service of that order. But whether these procedures are

followed or not, it cannot be said that the order of detention would be thereby rendered illegal

merely because no service has been effected. In fact, in dealing with criminal Misc. no. 30 of 1960

decided on 24th January 1960, this Court definitely pointed out that the validity of the detention

depends on the existence of the order and not on the service thereof. This then is the first point of

inconsistency between the Bihar Act and the Constitution of India.

54. It is next pointed out that the proviso to Sub-section (1) of Section 5, Bihar Act ia also in conflictwith Clauses (6) and (6) of Article 22. The proviso says that "neither the said order nor the detention

of the said person thereunder shall he invalid or unlawful or improper on the ground of any defect,

vagueness or insufficiency of the communication made to such person under this section."

Section 5, however, prescribes that the authority making the order shall, as soon as may be,

communicate to such person the grounds on which the order has been made and shall afford him

the earliest opportunity of making a representation against the order. It is contended, in the first

place, that Clause (6) of Article 22 enjoins upon the authority to communicate the grounds of

detention, bat it does not authorise him to take shelter under any vagueness or insufficiency in the

communication of the grounds. What is required by the Act is that the grounds should be

communicated as they are. Of course, it empowers the authority not to disclose facts which he

considers improper to disclose in public interest. The proviso in question, on the contrary, gives a

very large power to the authorities and says that even if the communication of the grounds are vague

and insufficient or defective, the detention shall not be rendered invalid or unlawful on that account.

I shall have occasion to examine this ground of repugnancy in a separate place because the question

would still re. main whether the repugnancy of the proviso would affect the other provisions of the

Act relating to preventive detention, or whether it is merely severable from those provisions of the

Act which could subsist in spite of this repugnancy.




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55. I may then refer to some of the other sub-sections of Section 6, which deal with the procedure for

reference to the Advisory Council, I should mention here another little point which has also arisen

for consideration. Under the Constitution Act, it is only said in Clause (6) of Article 22 that the

authority making the order of detention shall afford the person concerned the earliest opportunity

for making a representation against the order. The earliest opportunity may be ten days or may be

beyond ten daya from the date of service, of the communication of grounds to the person detained.

To put it differently, the Constitution Act does not create any disability or place any limitation on the

detenu to make a representation within ten days of the communication of the grounds of detention,

whereas the Act in Sub-section (1) of Section 5 does create such a disability and a limitation, so that

if the detenu fails to make a representation within that period his representation may be thrown out

altogether as time-barred. Sub-section (2) of Section 6, Bihar Act, again provides for reference to an

Advisory Council the grounds on which an order of detention has been made and the representation,

if any, made by the person together with other relevant materials. Then it proceeds to say that the

Advisory Council shall if necessary after calling for such further information from Government or

from the person concerned submit a report to the Provincial Government again within twelve weeks

of the date of the service of the order on the person concerned. I have already pointed out that in all

these cases we find that the time starts running from the date of service of the order but there is a

lacuna in the Act as to the period during which this ser vice is to be made. This twelve weeks may

well be within a period of three months or it may be much beyond the period of three months, but

Clause (4) of Article 22, Constitution Act says that there shall be no detention beyond a period of

three months unless within that period an Advisory Board has reported that in its opinion there is

sufficient cause for such detention. Here again there appears to be a repugnancy between the Act

and the Constitution of India. But this is not all.

56. As we proceed to examine Sub-sections (6) and (6) of Section 6, Bihar Act, we find that there are

further grounds of repugnancy. Sub-section (5) says:

"Alter considering the report of the Advisory Council, the Provincial Government may confirm,

modify, or cancel the order made under Clause (a) of Sub-section (1) of Section 2."

Now, again it is quite clear from the provisions that the Provincial Government is not bound to

respect the report of the Advisory Council. It may or may not accept the report at all. But this is not

what is contemplated by Clause 4 (a) of Article S2 of the Constitution. In that clause the authority

detaining the person concerned is bound by the report of the Advisory Board. If the Advisory Board

thinks that any further detention is undesirable, the authority detaining is bound to release. If, on

the other hand, the Advisory Board thinks that a longer detention is justified, the authority

detaining has to act upon that opinion of the Advisory Board. Again the difficulty arises as to the

time-lag. Under Section 5 of the Act although the Advisory Council is bound to submit its report

within twelve weeks from the date of the order, there is no period fixed within which the Provincial

Government is to pass its final order. They can wait even upon the submission of the report of the

Advisory Council for an indefinite period and thereby pro. long the, detention of a person. In dealing

with Cri. Misc. No. 885 of 1949 decided on 24th January 1950, Sunirmal v. Province of Bihar, A. I.

R. (37) 1960 Pat. 559,1 referred to this anomaly when examining the corresponding provisions of

both the Public Order Ordinance (NO. 2) IV [4] of 1949 as well as the Act of 1950. Thus it is to be




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noticed that there is no limitation in Act III [3] of 1960 either for service of the order or for the

passing of the final order as contemplated by Section 4 of the Act after the submission of the report

of the Advisory Council. This again is material because it is only when such a final order has been

passed by Government that under Section 4 of the Act this order shall remain in force for a period

not extending six months from the date on which it is passed ; though, of course, it is open to

Government to revoke the order within that period or even to extend it as provided therein.

57. Then again Sub-section (6) of Section 5 provides:

"All particulars contained in any correspondence between the Provincial Government and the

Advisory Council and the report made by the Advisory Council shall be confidential and no Court

shall be entitled to require any public servant to produce before it any of the said documents."

This provision evidently would be in clear conflict with Clause 4 (a) of Article 22 under which it

would be open to a Court of law to see whether an extension beyond the period of three months is

justified in view of the opinion of an Advisory Board justifying such detention. For all these reasons,

it has been contended and, in my opinion, rightly contended that Act III [3] of 1950 is repugnant to

the Constitution of India, and, aa such, it is void.

58. Another point which has been argued before us can be formulated in this way. Article 246 of the

Constitution Act provides for the subject-matter of the laws to be made by Parliament and by the

Legislatures of States. It says that the matters enumerated in List I in the Schedule VII of the

Constitution are matters over which Parliament has got exclusive power to legislate. Then it also

provides that the Legislature of any State specified in part A or part B of Schedule 1 also have power

to make laws with respect to any of the matters enumerated in List III in the Schedule VII referred

to as the "Concurrent List", whereas the Legislature of a State specified in Part A or Part B ofSchedule 1, has exclusive power to make laws for such State or any part thereof with respect to any

of the matters in List II of the Schedule referred to as the "State List". Now List I, therefore, is the

"Union List", and in the "Union List" our attention is drawn to item 9 which provides for preventive

detention for reasons connected with "Defence, Foreign Affairs, or the security of India". Then List

III which is the "Concurrent List" shows item 3 enumerating.

"Preventive detention for reasons connected with the security of a State, the maintenance of public

order, or the maintenance of supplies and services essential to the community etc."

It is, therefore, argued that on the Concurrent List it is open to a State as also to Parliament to frame

laws for preventive detention though under item 9 of List I it would be open exclusively to

Parliament to legislate in regard to preventive detention for reasons connected with Defence,

Foreign Affairs, or the security of India. It is true that preventive detention for reasons connected

with Defence, Foreign Affairs or the security of India are exclusively within the purview of

Parliament and constitute its exclusive field of legislation but where preventive detentions are for

reasons connected with the security of a State and maintenance of public order, power has been

given under the Concurrent List, as already shown above, to the States concerned to legislate in

regard to this matter. Therefore, from that point of view, it could not be said that Act III [3] of 1950




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which deals with preventive detention for maintenance of public order would be illegal or ultra vires.

Our attention has been drawn to Article 254, Constitution Act, where it is provided that "If any

provision of a law made by the Legislature of a State ia repugnant to any provision of a law made by

Parliament which Parliament is competent to enact, or to any provision of an existing law with

respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of

Clause (2), the law made by Parliament, whether passed before or after the law made by the

Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by

the Legislature of the State shall to the extent of the repugnancy, be void."

It is contended on the basis of this section also that the Bihar set in [3] of 1960 being repugnant to

the Constitution of India is void to the extent of its repugnancy. This may raise another question as

to the pith and substance of the legislation impugned. Section 254, however, has really no

application to the case in hand. Section 251, can only apply, if there is a legislation by Parliament in

regard to some of those matters enumerated in List I or in List III of Schedule 7. Here the

repugnancy complained of is against the Constitution of India itself. Therefore, the relevant

provision applicable is not Article 254 of the Constitution but Article 13 of the Constitution to which

reference has already been made; and if it can be held, as it has been held above, that the provisions

of Act III [3] of 1960 are repugnant to the Constitution of India, then those provisions to the extent

of their repugnancy would be void on the plain terms of Article 13 (1) of the Constitution.

59. The question then arises whether the entire provisions relating to preventive detention under

Act III [3] of 1950 are void on account of the repugnancy or only some of the provisions of the Act

are void, If we can find that the offending provisions are not separable, then it has to be declared

that the entire provision relating to preventive detention under the Bihar Act III [3] of 1950 is void

on account of its repugnancy. If, on the other hand, they are separable, then there is no reason why

only those provisions should not be declared to be void and other provisions of the Act held to bevalid.

60. In deciding criminal MISC. No. 854 of 1949 and criminal Misc. 870 of 1949 my brother Pas and

myself held that the provisions of Sub-sections (4) and (5) of Section 4, Public Order Ordinance are

not merely directory but mandatory, they being integral parts of the scheme envisaged by the Public

Order Ordinance, This Section 4, Public Order (NO. 2) Ordinance IV [4] of 1949 almost exactly

corresponds to Section 6 of the Act. Therefore, in connection with another application of a similar

nature Cri. Misc. no. 885 of 1949 decided on 24th January 1950 Sunirmal v. Province of Bihar, (A. i.

R. (37) 1960 Pat. 269) I again pointed out that "the provisions of Sub-sections (4) and (5) of Section

5 of Act III [3] of 1950 appear to ua to be mandatory and Integral parts of the scheme of the Act for

the very same reasons as the corresponding provisions of the Ordinance of 1949 as already decided

by us in Cri. Misc. Nos. 854 and 870 of 1949."

I, therefore, hold that the provisions of the Bihar Act III [3] of 1950 relating to preventive detention

are void as being repugnant to or inconsistent with Article 22 (4) and (5) of the Constitution of

India.




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61. At an earlier stage of this judgment. I have pointed out that under Article 22 (7), Constitution

Act, Parliament has the power to legislate so as to prescribe the maximum period for which a person

may be detained under any law providing for preventive detention, or it may provide by legislation

for detention 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) of Article 22. This power which is vested in Parliament by virtue of

Clause (7) of Article 22 can be also exercised by the President of the Indian Union until the

expiration of one year from the commencement of this Constitution or until provision is made by

Parliament under Clause (7) of Article 22. In other words, so long as Parliament itself does not do it,

the powers exercisable by Parliament under Article 22 (7) could be exercised by the President of the

Indian Union. The Constitution Act under Article 373 also provides that "all the law in force in the

territory of India immediately before the oommeneament of this Constitution shall continue in force

therein until altered or repealed or amended by a competent Legislature or other competent

authority".

In Clause (2) of the same Article the Constitution provides for adaptation of the provisions of any

law in force in the territory of India in order to bring them in accord with the provisions of this

Constitution, and it says that the President may by order direct such adaptations and modifications

of such law whether by way of repeal or amendment as may be necessary or expedient in order to

fulfil the purpose of adaptation. It further provides that the law shall as from such date as may be

specified in the order, have effect subject to the adaptations and modifications so made, and the said

adaptations or modifications shall not be questioned in any Court of law. This power of the

President to direct adaptations of the provisions of any law in force in the territory of India can be

exercised subject to the limitation provided in Clause (3) of Article 372, Now, Sub-clause (2) of

Article 372 pre-supposes that although the provisions of a law in force in the territory of India may

not be in complete accord with the provisions of the Constitution Act, yet, the President by virtue ofadaptation orders may bring them in consonance with the provisions of the Constitution Act, and

thereby render those laws effective. A question may arise whether by such adaptation the President

could cure any repugnancy or inconsistency in a law in force in the territory of India immediately

before the commencement of the Constitution. The answer evidently seems to be in the affirmative.

The power exercisable under Article 372 can be exercised by the President only after the

commencement of the Constitution. Under Article 394 of the Constitution, barring some of the

provisions mentioned therein, all the remaining provisions of the Constitution Act came into force

on 26th January 1950, in fact immediately after midnight of 25th January. The President of the

Union could not enter upon his office or discharge his functions as such until he had taken his oath

of office as required by Section 60, Constitution Act. This oath of office was taken by the President

after the commencement of the Constitution sometime at about 10-15 A. M. on 26th morning. That

being so, the President could act under Article 372 only after the commencement of the

Constitution. It does not appear, however, that there was any adaptation order passed by the

President in relation to Act III [3] of 1950 so as to modify these provisions or to repeal or amend it

in order to make it consistent or in accord with the provisions of the Constitution of India.

62. Even if the President had purported to do so, the problem still remains whether he could thereby

revive the provisions of an Act which became void on account of repugnancy as soon as the




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Constitution came into operation. I have shown above that the President was not competent to act

until he had taken his oath of office, and there was a difference of about ten hours between the

commencement of the Constitution and the assumption of the office by the President. The

considerations which apply to the interpretation and application of Article 372 cannot apply to the

interpretation and application of Article 13 of the Constitution. Article 372 comes under Part XXI of

the Constitution of India dealing with temporary and transitional provisions. It definitely saves the

operation of all laws which were in force before the commencement of this Constitution, and it

provides that those laws shall continue to be in force. Those laws shall not be, therefore, void but

any inconsistency in such laws may be cured by adaptations as provided under Clause (2) of Article

372. The provisions of part III of the Constitution Act which deal with fundamental rights stand on

an entirely different footing. There Article 13 is a special provision which acts and operates upon all

laws which purport to interfere with fundamental rights of people, and it says very definitely that all

laws in force in the territory of India immediately before the commencement of this Constitution in

so far as they are inconsistent with the provisions of Fart III shall to the extent of such repugnancy

be void. Therefore, Article 372 and the powers of adaptation laid down therein would apply to all

other legislations which are not affected by Article 13, Constitution Act and which do not interfere

with the fundamental rights of individual as laid down in Part III, of the Constitution. Therefore, if

there is any enactment the provisions of which offend against the provisions of Article 22,

Constitution Act by operation of Article 13, those provisions shall become void. At one stage I was

inclined to think that the clause under any law providing for preventive detention, as used in Clause

7 (a) and (b) of Article 22 would cover both class of cases, namely, laws which were in existence

before the commencement of the Constitution and law which came into operation after the

commencement of the Constitution. But the difficulty in adopting the former interpretation would

be in the application of Article 13, Constitution Act. Article 18 would render void the provisions of

any law which are inconsistent with Part III of the Constitution as soon as the Constitution

commenced to operate. Now, the Parliament or the President could not be expected to act accordingto the procedure envisaged under Article 22 (7) until after the Constitution commenced. Therefore,

by any such acts or legislation of Parliament or that of the President the law which had already

become void ex proprio vigors Article 13 of the Constitution could not be restored to life and

rendered valid. I have since had the advantage of reading the judgment prepared by my Lord the

Chief Justice and I agree that the phrase "any law providing for preventive detention" must be taken

to relate to prospective laws, that is, laws which came into operation after the commencement of the

Constitution and which would fall under Article 13 (2), Constitution Act. That being so, the

provisions relating to preventive detention in Act III [3] of 1950 having already become void as soon

as the Constitution commenced, they could not be revived by any act of the President purporting to

do so under Article 22 (7) read with Article 373 of the Constitution; nor, in my opinion, could he do

so by any adaptations contemplated by Article 373, Constitution Act.

63. In course of arguments it was intimated to us by the learned Government Advocate ap. pearing

for the State of Bihar that the President of the Indian Union had under some notification of the

Indian Union purported to prescribe law under Article 32 (7) read with Article 373, Constitution Act.

The hearing of the application was accordingly adjourned to another date to enable the learned

Government-Advocate to produce the order in question. As I have said, the power under Article 373

is exercieable by the president until the expiration of one year from the commencement of the




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Constitution, or until provision is made by Parliament under Article 22 (7). A notification was

subsequently produced before us on behalf of the State of Bihar purporting to be signed by the

President of the Indian Union. The notification is dated 26th January 1950. The notification

purports to be in the exercise of powers conferred by Sub-clause (a) and (b) of Clause (7) of Article

22 of the Constitution of India read with Article 373 thereof and of all other powers enabling the

President to act in that behalf. The President under the said notification had made the following

order, namely :

"1. (1) This order may be called the Preventive Detention (Extension of Duration) Order 1960. (2) It

shall come into force at once,

2. Where in any class of cases or under any circumstances specified in any law providing for

preventive detention in force at the commencement of the Consti tution of India (hereinafter

referred to as 'the Consti tution') any person was, immediately before each commencement, or is at

any time thereafter, in deten tion in pursuance of an order made under such law, su

brahmeshwar prasad vs the state of bihar and ors. on 14 february, 1950

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