Lakhi Narayan Das And Ors. vs The Province Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 30 March, 1950

Coram: H.J. Kania, Meher Chand Mahajan, Saiyad Fazal Ali, Mukherjea

In the matter titled Lakhi Narayan Das and others versus the Province of Bihar, decided on the thirtieth day of March, 1950, the Supreme Court of India delivered its judgment. The bench for this case comprised H. J. Kania, Meher Chand Mahajan, and Saiyad Fazal Ali. Justice Mukherjea authored the opinion. The Court was called upon to consider sixteen separate appeals, each of which originated from an individual application filed by a different appellant under section 491 of the Criminal Procedure Code. All of the appellants asserted that they were being detained in violation of section 2(1)(a) of the Bihar Maintenance of Public Order Ordinance, 1949, and therefore sought relief from what they described as illegal detention.

The apprehensions of the appellants were initially effected under the Bihar Maintenance of Public Order Act, 1947. That Act had obtained the assent of the Governor-General on the fifteenth of March, 1947, and, according to section 1(3), was intended to remain in force for a single year beginning on the date of its commencement. However, a proviso was inserted into that subsection, granting the Provincial Government the authority to prolong the operation of the Act for an additional year, either with or without modifications, by issuing a notification. Such a notification could be issued only after a resolution supporting it had been passed by the Bihar Legislative Assembly and subsequently agreed to by the Bihar Legislative Council. Exercising the power conferred by that proviso, the Provincial Government of Bihar on the eleventh of March, 1948, issued a notification extending the Act’s operation for a further year, effective from the fifteenth of March, 1948. It was during this extended period that the arrests and detention orders against the present appellants were first made.

The legality of the Provincial Government’s power to extend the Act by means of a notification, as prescribed in the proviso to section 1(3), was contested in several analogous suits that came before this Court in May, 1949, most notably in the case of Jatindra Nath Gupta versus the Province of Bihar and others. By a judgment delivered on the twenty-eighth of May, 1949, this Court held that the proviso to section 1(3) of the Bihar Maintenance of Public Order Act was beyond the authority of the Provincial Government because it effectively delegated a legislative function to an external body. Consequently, any extension of the Act beyond its original one-year term was declared void and inoperative. The Court further held that the Bihar Act V of 1949, which the Bihar Legislature had passed subsequently and which purported to amend section 1(3) of the earlier Act, was itself invalid. The reason was that the provision it sought to amend no longer existed as a lawful enactment at the time the amendment was made. In response to these pronouncements, the Governor of Bihar promulgated, on the third of June, 1949, a new Ordinance modelled on the original Maintenance of Public Order Act. This Ordinance incorporated, among other provisions, powers for preventive detention in matters concerning public safety and the maintenance of order within the Province of Bihar. The Governor issued further orders under this Ordinance on the twenty-first of June, 1949, which formed the basis of the appellants’ challenge.

In 1949, the High Court of Patna held that the Ordinance issued on 21 June 1949 was void and inoperative. The Court based its decision on the premise that the Legislature of the Province of Bihar, although not actually in session, had neither been prorogued nor dissolved; consequently, the Governor did not possess the power to promulgate an Ordinance under section 88(1) of the Government of India Act. Following that decision, on 22 June 1949 the Governor issued a new Ordinance, identified as Ordinance No IV of 1949, which essentially re-enacted the substantive provisions of the earlier Ordinance. Under the terms of this fresh Ordinance, fresh detention orders were issued and served upon all of the appellants. The appellants, together with other detainees, filed applications before the Patna High Court invoking section 491 of the Criminal Procedure Code, challenging both the validity of the Ordinance itself and the legality of the detention orders issued under it, and raised a number of grounds in support of their challenges. The High Court heard these applications in several batches before different benches. In total, ten judgments were rendered by the High Court and these judgments have been the subject of the present appeals; the principal judgment among them is the one delivered by Justices Ramaswami and Narayan on 12 July 1949. The High Court dismissed the applications of all the appellants, but it granted a certificate of appeal in each case under section 205(1) of the Government of India Act. Relying on those certificates, the sixteen appeals now lie before this Court.

When the appeals were called for hearing, the appellants appeared personally and were not represented by counsel. A learned counsel of this Court, Mr Umrigar, voluntarily offered to assist and he presented all arguments that could be advanced on behalf of the appellants; the Court acknowledges his assistance. The central issue raised by the appellants is that the Ordinance under which they are detained was promulgated by the Governor in violation of section 88 of the Government of India Act, and that, as a result, the Ordinance is void and inoperative and any detention order made under it must be declared illegal. Section 88 of the Government of India Act provides that if, at any time when the Legislature of a Province is not in session, the Governor is satisfied that circumstances exist which render immediate action necessary, the Governor may promulgate an Ordinance that he deems required. However, the Governor may not promulgate such an Ordinance without instructions from the Governor-General if a provincial Act containing the same provisions would, under the Act, be invalid unless it had been reserved for the Governor-General’s consideration and received his assent. It is admitted that the Bihar Legislature was not in session when the Ordinance was enacted. Nevertheless, it was argued before the lower court, and the same argument is reiterated before this Court, that no circumstance contemplated by section 88(1) existed that could justify the Governor’s action.

In this matter, the Court observed that the question of whether the Governor was justified in promulgating the Ordinance could not be examined by the courts. The wording of section 88 made it clear that the satisfaction of the Governor regarding the existence of circumstances requiring an Ordinance was a matter that rested solely with the Governor. Such a determination was not a justiciable issue that could be subject to an objective test by a judicial authority. The Court further noted that, under the Government of India Act, the Governor-General possessed the power to issue Ordinances in emergencies, as provided in section 42 of the Act and section 72 of Schedule IX (now omitted). The Privy Council, in the cases of King Emperor v. Benoarilal and Bhagat Singh v. The King Emperor, had held that the assessment of an emergency requiring immediate action was to be made exclusively by the Governor-General. Consequently, when an Ordinance was issued, the Governor-General was under no legal obligation to explain the reasons for it or to prove in a court that a state of emergency actually existed. Section 88 merely required the Governor’s satisfaction that the circumstances justified the Ordinance, and the preamble to the Ordinance clearly stated that this condition had been met. Accordingly, the Court rejected the first contention raised by the appellants. The Court then turned to the appellants’ second and more serious contention, which asserted that the Ordinance contained provisions that, if they had been part of a provincial Act, would have been invalid without the assent of the Governor-General. The appellants argued that, under section 88(1), prior instructions from the Governor-General were necessary to validate the Ordinance, and since no such instructions existed, the Ordinance lay beyond the Governor’s authority. To evaluate this argument, the Court referred to relevant provisions of the Constitution Act. Section 100(1) of the Government of India Act barred the Provincial Legislature from legislating on any matters listed in List I of the Seventh Schedule, the Federal Legislative List, which was reserved exclusively for the Dominion Legislature. Section 100(3) empowered the Provincial Legislature to make laws for the province on matters enumerated in List II, the Provincial Legislative List, and prohibited the Dominion Legislature from legislating on those matters for any province. Moreover, for territories outside the defined provinces, subsection (4) of section 100 gave the Dominion Legislature the authority to legislate on any matter specified in the Provincial List. By examining these provisions, the Court assessed the appellants’ claim regarding the necessity of Governor-General instructions for the Ordinance’s validity.

The judgment explained that subsection (2) of section 100 of the Government of India Act dealt with the Concurrent Legislative List, a category in which both the Dominion Legislature and the provincial Legislature were authorised to make laws on the matters enumerated therein. Because both legislatures could legislate in the same field, the possibility of conflict was recognised, and section 107 of the Act was cited as providing the rule for avoiding repugnancy between provincial and Dominion enactments. Section 107 was reproduced in the judgment and read as follows: “(1) If any provision of a Provincial Law is repugnant to any provision of Dominion law which the Dominion Legislature is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent Legislative List then, subject to the provisions of the sections, the Dominion law, whether passed before or after the Provincial law, or, as the case may be, the existing law, shall prevail and the provincial law shall, to the extent of the repugnancy, be void. (2) Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter, then, if the Provincial law having been reserved for the consideration of the Governor-General has received the assent of the Governor-General, the Provincial law shall in that Province prevail, but nevertheless the Dominion Legislature may at any time enact further legislation with respect to the same matter: provided that no Bill or amendment for making any provision repugnant to any Provincial law, which, having been so reserved, has received the assent of the Governor-General, shall be introduced or moved in the Dominion Legislature without the previous sanction of the Governor-General.” The appellants contended that the Ordinance they challenged conflicted with certain provisions of the Criminal Procedure Code and that it created new offences for the first time, matters which, they argued, fell within Items (1) and (2) of the Concurrent Legislative List. They further asserted that, had the same provision been enacted by the Provincial Legislature, a conflict would have arisen between the Ordinance and the existing Criminal Procedure Code and other statutes, and that under subsection (2) of section 107 the assent of the Governor-General would have been required to validate the provincial provision. The appellants also relied on the proviso to section 88(1) of the Act, claiming that the Governor could not promulgate such an Ordinance without instructions from the Governor-General. The Court found this contention to be unsound. It held that in order for the appellants to invoke the operation of section 107 read with section 88(1), they first needed to establish that the provisions of the impugned Ordinance and the provisions of the existing law dealt with the same subject-matter and that that subject-matter was covered by an item in the Concurrent List. Secondly, they needed to demonstrate that a genuine repugnancy existed between the two sets of provisions.

The Court explained that for a conflict to arise under section 107 of the Government of India Act, two conditions must first be satisfied. Firstly, the two enactments must deal with the same subject-matter and that subject-matter must fall within one of the items listed in the Concurrent List. Secondly, there must be a repugnancy between the provisions of the two enactments. Having set out this test, the Court proceeded to examine whether the Ordinance that was being challenged concerned matters placed in the Provincial List or in the Concurrent List. The Court relied on the authority of the Judicial Committee in Meghraj v. Allarakhia, where it was held that when a province legislates strictly within the powers granted by the Provincial List, without invoking any authority from the Concurrent List, no question of repugnancy under section 107 arises. The issue in that earlier case was whether the Punjab Restitution of Mortgaged Lands Act, 1938, conflicted with provisions of the Civil Procedure Code and other existing Indian law such that it would be invalid under section 107(1). The Punjab Act, in substance, set aside the ordinary redemption procedure for mortgaged land that was in possession, and authorised the Collector, upon application by the mortgagor, either to extinguish the mortgage in specified circumstances or to declare it extinguished and restore possession. The matter was appealed to this Court, which held that the Act was not void because no repugnancy existed between its provisions and those of the Civil Procedure Code or the Indian Contract Act, the latter statutes containing express exceptions that accommodated the Act’s scheme. An appeal was then taken to the Judicial Committee of the Privy Council, which affirmed the lower court’s decision but for different reasons. The Judicial Committee observed that the language of the Punjab Act confined its operation exclusively to agricultural lands, and that both the mortgage of agricultural land and the procedure for enforcement fell wholly within the competence of the Provincial Legislature, being covered by Items 21 and 2 of List II. Since agricultural land was specifically excluded from Items 7, 8 and 10 of List III, the whole Act fell within the powers conferred by the Provincial List, eliminating any need to draw on Concurrent List authority. Consequently, no question of repugnancy under section 107 of the Constitution Act arose for consideration. The Court noted that while its own decision in Meghraj’s case rested on the absence of a real conflict between the Punjab Act and existing Indian law, and therefore left open whether the Act might apply to non-agricultural property, the Judicial Committee had definitively concluded that the Act dealt solely with agricultural land and that the issue of repugnancy was immaterial. In light of that pronouncement, the Court was of the view that the Province of Bihar was correct in contending that the matters addressed by the impugned Ordinance fell wholly within Items 1 and 2 of the Provincial List and that no legislation existed on any item of the Concurrent List.

The Court observed that the Province of Bihar was correct in asserting that every matter addressed by the impugned Ordinance fell wholly within Items (1) and (2) of the Provincial List and that no legislation had been enacted on any entry in the Concurrent List. Items (1) and (2) of the Provincial List are worded as follows: “1. Public Order but not including the use of His Majesty’s naval, military or air forces in aid of the civil power; the administration of justice, constitution and organisation of all courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention. 2. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.” The Court explained that the term “Public Order” that begins the first item is an extremely wide expression and it clearly defines the scope of the legislative power given to the province. Maintenance of public order within a province is primarily the responsibility of that province, and, subject to the limited exception concerning the use of His Majesty’s forces in aid of civil power, the Provincial Legislature possesses full authority to legislate on all matters related to, or necessary for, the preservation of public order. The provision expressly includes preventive detention for reasons connected with the maintenance of public order and the persons who may be detained, while preventive detention for reasons of State defence, External Affairs and relations with acceding States is placed separately under Item (1) of the Federal List. Turning to the specific provisions of the Ordinance, the Court noted that its preamble plainly states that the Governor is satisfied that certain circumstances exist which make it necessary for him to take immediate action and to provide for preventive detention, the imposition of collective fines, and the control of meetings and processions, all in connection with public safety and the maintenance of public order in the Province of Bihar. Section 2 confers on the Provincial Government the power to issue orders that restrict the movements or actions of, or detain, a particular person with a view to preventing that person from acting in any manner prejudicial to public safety and the maintenance of public order. Section 3 then specifies the period for which any order made under Section 2 may remain in force. Section 4 mandates that the grounds for a detention order must be disclosed to the affected person, who is entitled to make a representation in reply to the allegations. Those grounds and the representation are to be placed before an Advisory Council constituted in a prescribed manner, and, on receipt of the Advisory Council’s report, the Provincial Government is to pass the final order. Section 5 provides for the imposition of

The Ordinance authorized the imposition of collective fines on all persons residing in any area who were involved in the commission of offences that affected public safety or public order. Sub-section (5) of that provision stipulated that the portion of the fine attributable to an individual could be recovered from him in the manner prescribed in section 386 of the Criminal Procedure Code, or alternatively the Provincial Government could frame special rules for that purpose. Section 6 dealt with the control of processions and meetings, while sections 7 and 8 provided for press censorship and for the regulation of documents printed outside the province. Section 9 authorized the requisitioning of property, and sections 10 and 11 covered unlawful drilling and the use of unofficial uniforms. Under section 12 an officer entrusted with these powers could require the assistance of any male resident of the area to help maintain law and order. Section 13 permitted the declaration of any place as a protected place, and section 15 empowered the Government to issue orders for controlling or regulating the admission of persons to, and the conduct of persons within, and in the vicinity of such protected places. The Court noted that a breach of any order made under these sections constituted a criminal offence for which the Ordinance prescribed specific punishments. The remaining substantive provisions of the Ordinance were found in sections 21 to 24. Section 21 empowered any police officer to arrest, without a warrant, any person whom he reasonably suspected of having committed an offence punishable under the Ordinance. Section 22 set out the procedure for taking cognizance of any alleged contravention of the Ordinance; its sub-section (2) provided that any magistrate or bench of magistrates authorized to try cases summarily under section 160(1) of the Code of Criminal Procedure could also try any contravention of the Ordinance or any order made thereunder, provided that the Provincial Government issued a notification to that effect. Section 23 repealed the Bihar Maintenance of Public Order Act 1947, the Amending Act V of 1949, and the earlier Ordinance of 3 June 1949. Section 24 saved all proceedings that had been commenced or any acts that had been done under the earlier Ordinance. Consequently, the Court observed that every provision of the Ordinance was directed primarily at maintaining public order in the Province of Bihar and included measures such as preventive detention and related powers. While the Ordinance made violations of its provisions criminal offences, offences relating to matters enumerated in List II fall within Item (37) of List II itself and are expressly excluded from Item (1) of the Concurrent List. The ancillary matters concerning the procedure for trial of such offences and the conferring of jurisdiction on particular courts are fully covered by Item (2) of List II, and therefore it was not necessary for the Provincial Legislature to invoke powers under Item (2) of the Concurrent List.

In this case, the Court noted that the Provincial Legislature could invoke the powers under Item (2) of the Concurrent List. The appellants contended that section 21 of the Ordinance, which authorized any police officer to arrest without a warrant a person suspected of having committed an offence punishable under the Ordinance, amounted to legislation on criminal procedure and conflicted with section 54 of the Criminal Procedure Code. The Court observed that if the Provincial Legislature was permitted to create offences concerning matters that fell exclusively within List II, it could also provide for the arrest and trial of persons who violated such laws. This observation reflected the clear implication of Item (37) of List II and Item (1) of the Concurrent List. The Court then referred to its earlier decision in United Provinces v. Mussamat Aliqua Begum, stating that none of the entries in the constitutional lists should be interpreted narrowly, and that each general term must be understood to include all ancillary or subsidiary matters that can fairly be said to fall within its scope. The Court further explained that the three legislative lists in the Constitution are not always mutually exclusive. Citing the observations of the Judicial Committee in Profulla Kumar Mukherji v. Bank of Commerce, the Court explained that overlapping of subject-matter is inevitable even with three lists, and that the proper enquiry is to determine the pith and substance of the enactment, to which list its true nature belongs. To ascertain the class of a particular enactment, the Court said, one must look at the primary matter dealt with, its subject-matter and its essential legislative feature. Once the true nature and character of legislation are identified, any incidental reference to matters in other lists is immaterial. The Judicial Committee had clarified that the extent of a Provincial Act’s intrusion into subjects enumerated in other lists is relevant not for judging validity by degree of intrusion, but for determining the pith and substance of the Act. Applying this test, the Court concluded that it could scarcely be argued that the impugned Ordinance was legislation on criminal procedure; rather, its dominant purpose was public order and preventive detention. The Court acknowledged that detention without a judicial order appeared to contravene criminal law provisions, but recognised that such detention formed the core of preventive detention. Accordingly, the Ordinance set forth, in the view of the legislative authority, the essential measures required for maintaining public order in the province, which constituted its true nature and character.

The Court observed that the offences created by the Ordinance and the procedures prescribed for arrest and trial of offenders are merely ancillary matters without which effective legislation could not exist. Consequently, the Court held without hesitation that the entire Ordinance falls within Items (1) and (2) of the Provincial List. Because no portion of the Ordinance requires resort to the concurrent powers listed in List III, the question of repugnancy under section 107(1) of the Government of India Act does not arise. Even assuming, for the sake of argument, that the provision in section 21 allowing police officers to arrest without a warrant persons suspected of offences under the Ordinance falls within criminal procedure. The Court also noted that the provision empowering magistrates to try such persons summarily would likewise fall within Item (2) of the Concurrent List. Nevertheless, the Court concluded that even if those provisions were deemed to fall within the Concurrent List, this reasoning would not provide any advantage to the appellants. The Court noted that the mere fact that the Provincial Legislature has legislated on a matter that lies in the Concurrent List does not trigger operation of section 107 of the Government of India Act. For section 107 to apply, there must be a direct repugnancy between the provincial law and an existing law, and the procedure prescribed in subsection (2) of section 107 must be followed. In the Court’s view, no repugnancy exists between any provision of the impugned Ordinance and the existing Criminal Procedure Code. Section 54 of the Criminal Procedure Code is not exhaustive, and other statutes such as the Police Act, Arms Act, Explosives Act, and Indian Railways Act also contain provisions for arrest without a warrant. Moreover, section 1(2) of the Criminal Procedure Code expressly provides that its provisions do not affect any special procedure prescribed by any law that is in force. Accordingly, the Court concluded that the arrest power granted by section 21 of the Ordinance is not repugnant to section 54 of the Criminal Procedure Code. Similarly, empowering certain magistrates to try offences under the Ordinance does not interfere with any provision of the Criminal Procedure Code. Because no repugnancy is found, the Court held that section 107 of the Government of India Act has no application to the present case.

The Court then considered the argument, raised by counsel, that the promulgation of the Ordinance was not a bona-fide act of the Governor. The Court found it difficult to identify any material that would substantiate such a claim in a serious manner. The Court observed that the Bihar Maintenance of Public Order Act, 1947 itself contained a provision allowing the Provincial Government, with the assent of both Houses of the legislature,. The provision enabled the government to extend the life of the Act by a notification for an additional year, thereby preserving its operation. The presence of a statutory mechanism for extension indicated that the Governor acted within authority granted by the legislation. Consequently, the Court concluded that there was no substantive basis to declare the Ordinance's promulgation as lacking good faith. The Court described the contention as somewhat faint-hearted and observed that the record did not contain any indication of ulterior motive by the Governor. It further noted that the procedural safeguards embedded in the Act demonstrated a genuine attempt to maintain public order rather than an exercise of arbitrary power. Accordingly, the Court dismissed the allegation of bad faith and affirmed the validity of the Ordinance's promulgation as lawful.

After the fifteenth day of March 1948, the Bihar Maintenance of Public Order Act was extended. In March 1949 an Amending Act was passed, further extending the original Act until the thirty-first day of March 1940. On the twenty-eighth day of May 1949, the Patna High Court held that the extension of the Act by means of a notification of the Provincial Government and the subsequent amending Acts were beyond the authority of the Province and therefore void. In the circumstances, the Governor of Bihar promulgated an Ordinance on the third day of June 1949, which in substance incorporated the provisions of the Maintenance of Public Order Act. It was acknowledged that at that time the Legislature was not actually sitting, although no formal order of prorogation had been issued. On that ground the Patna High Court held the Ordinance to be inoperative. The very next day after the High Court’s decision, the present Ordinance, identified as Ordinance No IV of 1949, was promulgated. It may have been an error on the part of those advising the Governor not to consider that the Legislature had not been prorogued when the June 3 1949 Ordinance was passed, but there is no basis to suggest that any dishonest or mala-fide intention was involved. 18. The fourth and final contention raised by counsel for the petitioner is that sections twenty-three, twenty-four and the proviso to section four (1) of the Ordinance are illegal and beyond the authority of the Province, and that, because these provisions are not severable from the rest of the Ordinance, the entire Ordinance must be declared invalid.

19. To test the strength of this argument, the Court examined the three impugned provisions separately. Section twenty-three of the Ordinance purports to repeal the Bihar Maintenance of Public Order Act as it had been extended by the Provincial Government’s notification, as amended by later Acts, and also to repeal the earlier Ordinance issued on the third day of June 1949. All of the enactments referred to in that section had already been pronounced invalid by competent courts, making the repeal unnecessary; the provision is therefore superfluous, may be ignored, and does not affect the validity of the Ordinance in any manner. 20. Section twenty-four is a saving provision intended to preserve all proceedings that had been commenced, orders that had been made, or sentences that had been passed under Ordinance II of 1949, which the Patna High Court had declared invalid. It was argued that if the Ordinance itself were held to be illegal and beyond the Province’s authority, nothing done under it could be considered valid. For the present purpose that question is academic, because the detention of any of the appellants is not justified on the basis of the provisions of Ordinance II of 1949; consequently, whether any order made or any proceeding started under

The Court observed that the question of whether any part of the old Ordinance could be retained at all was irrelevant and therefore need not be examined in the present proceedings. The sole issue for determination was whether, assuming that a particular provision was invalid, that provision was so intimately woven into the overall scheme of the Ordinance that its invalidity would render the entire Ordinance void. The Court answered this question in the negative, holding that there was no essential and inseparable link between the challenged section and the remainder of the Ordinance, and that none of the material provisions of the Ordinance depended upon the invalid section. Consequently, if the section were removed, the balance of the Ordinance would continue to operate as an effective piece of legislation serving the same purpose for which the Ordinance had originally been enacted. The principal objection raised by counsel for the respondent, Mr. Umrigar, was directed against the proviso attached to section 4(1) of the Ordinance. He contended that the clause exceeded the authority of any Provincial Legislature because it was not included in any of the items enumerated in the Provincial List. Section 4(1) of the Ordinance provided that when an order was made in respect of any person under clause (a) of sub-section (1) of section 2, the authority making the order should, as soon as practicable after the order, communicate to the affected person, to the extent that such communication could be made without revealing facts that the authority considered contrary to the public interest, the grounds on which the order was made and any other particulars sufficient to enable the person, if he wished, to make a representation against the order. The provision further stated that the person could, within fifteen days of receiving the communication, submit a written representation to the authority, and that the authority was duty-bound to inform the person of his right to make such a representation and to provide him the earliest practicable opportunity to do so. A proviso was added to this sub-section, stipulating that where the Provincial Government was of the opinion that disclosing all the grounds of the order would be against the public interest, neither the order nor the detention of the person under it would be deemed invalid, unlawful, or improper on the ground of any defect, vagueness, or insufficiency of the communication made to the person under this section. Mr. Umrigar argued that the word “all” in the proviso was clearly intended to mean “any,” thereby freeing the Provincial Government from any obligation to disclose any ground supporting the detention order. According to his argument, this interpretation effectively removed the sole safeguard contained in section 4(1), which entitled a detainee to

In this case, the Court observed that the clause which permitted a detainee to make an effective representation by replying to the allegations made against him was entirely withdrawn. The Court further explained that it was not required to decide in the present proceedings whether a proviso of this description, which in practical effect nullifies the principal section to which it is attached, would override that principal section. The Court characterised that issue as a matter of statutory construction that could be raised at an appropriate time, and it expressly refrained from expressing any view on that point. The question that required determination, according to the Court, was whether the Governor possessed the legislative competence to enact the proviso, a competence that, in this respect, was identical to that of the Provincial Legislature. The petitioner's argument, presented by counsel, was that once the safeguard provided to a detainee under section 4(1) of the Ordinance was diminished and rendered illusory by the proviso, the detention could no longer be described as “preventive detention” contemplated by Item 1 of the Provincial List. Instead, the detention would degenerate into “arbitrary detention,” a category for which the Government of India Act did not confer any legislative authority on the province. As part of this argument, counsel heavily relied upon observations made by a Full Bench of the Patna High Court in Murat Patwa v. The Province of Bihar, wherein the High Court explained that the term “preventive detention” signifies detention not based on the actual commission of an illegal act, as in ordinary imprisonment, but based on a reasonable anticipation that some illegal act or acts might otherwise be committed. The High Court further noted that, within the context of Item 1 of List II in the Seventh Schedule to the Government of India Act, the anticipated illegal act must relate to the maintenance of public order, and that section 2(1) of the Act imposes an additional limitation requiring the anticipated acts to be prejudicial not only to public order but also to public safety. The High Court distinguished preventive detention from arbitrary detention – the latter being an entirely different subject matter of legislation – by emphasizing that preventive detention rests on the existence of a reasonable anticipation that illegal acts may occur. It was observed that any factor that weakens a fair and proper determination of such reasonable anticipation tends automatically to transform what would otherwise be preventive detention into purely arbitrary detention. Consequently, at the point where such weakening occurs, the question arises whether an enactment that purports to deal with preventive detention, in substance, actually deals with preventive detention, or whether it has exceeded the provincial legislature’s authority and become ultra vires by effectively granting the Executive power of arbitrary detention. The Court noted that the Full Bench judgment had not been argued before the learned judges, and that the judges had not based their decision on those observations.

In the present case, the Full Bench did not conclude that the Legislature had exceeded its authority by enacting the provision contained in section 2(1)(a) of the Bihar Maintenance of Public Order Act. The sole issue that the Court actually addressed was the mandatory nature of section 4 of the Act, which requires that the grounds for a detention be communicated to the detainee within a reasonable period; failure to do so would render the detention illegal. Consequently, the observations concerning the scope of legislative power could not be regarded as binding authority and were at most obiter dicta. Even as dicta, those observations would have carried some weight, but they were weakened by what appeared to be loose reasoning. The learned judges seemed to operate on the premise that a clear antithesis existed between “preventive” detention and “arbitrary” detention, treating “arbitrary detention” as a distinct subject-matter of legislation. The Court contrasted preventive detention, which is based on the apprehension of future wrongdoing, with punitive detention, which follows the commission of an illegal act. It noted that the term “arbitrary” implies a lack of reasonable or proper justification, and that if a statute lies wholly within the legislative competence, a court cannot deem it arbitrary. The court further observed that judges have no role in assessing legislative policy or the wisdom of a law. As Lord Watson observed in Union Colliery Company of British Columbia Ltd. v. Bryden, once a court has determined the limits of legislative jurisdiction, it has no right to inquire whether the jurisdiction was exercised wisely. The Court emphasized that preventive detention for the purpose of maintaining public order is a subject on which the provinces may legislate under the Government of India Act, and that the judiciary must first ascertain the true nature and character of the legislation to decide whether it truly concerns preventive detention. If that determination favours the legislative authority and confirms that the law does not exceed its allotted powers, the courts are not entitled to critique the wisdom or policy behind the legislation.

The Court further indicated that the viewpoint expressed by a bench of the Calcutta High Court in Sushil Kumar v. Government of West Bengal represented a correct approach to the issue, and therefore the contention presented by Mr Umrigar could not be accepted as sound. These constitutional matters were raised on behalf of the appellants and were urged for consideration in the present appeals. Moreover, certain appellants had filed applications under section 205(2) of the Government of India Act, seeking permission to raise grounds other than those on which certificates under section 205(1) had been granted.

The petitioners sought the Court’s permission to rely on grounds other than those upon which certificates had been issued under section 205(1) of the Government of India Act. The counsel for the petitioners, however, candidly acknowledged that he could not point to any substantial error of law in any of the cases, nor could he identify any procedural irregularity that might have resulted in a miscarriage of justice. In view of this admission, the Court decided not to examine the factual issues that had already been discussed at length in the judgments of the High Court. Since the matter was not shown to involve any serious legal mistake or procedural defect, the Court found no basis to reopen the factual determinations already made by the lower tribunal. Accordingly, the Court held that the appeals could not be sustained and ordered that they be dismissed with the result that the petitioners’ applications failed.