S. Krishnan And Others vs The State Of Madras

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 7 May 1951

Coram: Hiralal J. Kania, M. Patanjali Sastri, Mehr Chand Mahajan, D. A. Das, Vivian Bose

In the matter titled S. Krishnan and others versus the State of Madras, the Supreme Court of India rendered its judgment on 7 May 1951. The case was heard by a bench comprising Chief Justice Hiralal Kania, and Justices Mehr Chand Mahajan, Vivian Bose, S. Sastri, and M. Patanjali. The official citation of the decision is reported as 1951 AIR 301 and 1951 SCR 621. The petitioners, identified as S. Krishnan and several others, challenged the constitutionality of certain provisions of the Preventive Detention (Amendment) Act, 1951. The amendment extended the operation of the original Preventive Detention Act of 1950 for an additional year, up to 1 April 1952, and introduced two significant changes: first, Section 9 required that a reference to an Advisory Board be made in every case within six weeks; second, Section 12 provided that every detention order already in force at the commencement of the amendment would continue as if it had been made under the amended Act. The petitioners were detained on the date the amendment commenced, under orders issued pursuant to Section 3(1)(a)(ii) of the 1950 Act. They argued that, but for the amendment, they would have been entitled to release after one year from the date of their detention. By invoking a writ of habeas corpus, they contended that Sections 9 and 12 of the amendment violated Article 22(4)(a) of the Constitution and were therefore void under Article 13(a), because the combined effect of these sections would keep them detained for more than three months without the required reference to an Advisory Board and for a period exceeding one year. Additionally, they criticised the amendment for failing to specify any maximum period for detention.

The Court examined the petitioners’ contentions and delivered its holding. Chief Justice Kania, together with Justices Patanjali, Sastri, Mahajan, and Justices S.R. Das and Bose, concluded that Sections 9 and 12 of the Preventive Detention (Amendment) Act, 1951, did not infringe Article 22(4) of the Constitution and therefore were not void. The judgment clarified that the amendment could be regarded as a law substantially in accordance with sub-clauses (a) and (b) of clause (7) of Article 22, satisfying the requirements of Article 22(4)(b). Consequently, the Court held that the provisions of the amendment were constitutionally valid and did not contravene the fundamental rights guaranteed by the Constitution.

The Court observed that the Preventive Detention (Amendment) Act, 1951, could be regarded as a statute made substantially in accordance with sub-clauses (a) and (b) of clause (7) of Article 22, and therefore satisfied the requirement of Article 22 (4) (b). Accordingly, the Court held that the amendment Act was not unconstitutional or void. The Court further noted that the law enacted by the amendment statute was not the same law declared by the original statute; consequently, the amended statute was in the nature of a new and independent enactment. The effect of section 12 was to render the detention of the petitioners a fresh detention under the new law, and there was nothing in the new law that, by itself, authorised the detention of any person for more than three months without reference to an Advisory Board or for a period exceeding one year. Hence, the Court found no contravention of any provision of Article 22 (4). The Court also held that the Preventive Detention (Amendment) Act, 1951, was not invalid on the ground that it did not fix a maximum period for detention, because the Act itself was to remain in force for only one year and no detention under the Act could be continued after the expiry of that one-year period. In a dissenting view, Justice Bose expressed that sub-section (1) of section 11 of the impugned Act contravened Article 22 (4) of the Constitution since it did not fix any maximum period of detention while expressly empowering the Government to order that a detention shall continue “for such period as it thinks fit.” Justice Bose further rejected the view that a detention ordered under an Act would automatically come to an end with the expiry of the Act.

The matter was placed before the Supreme Court in its original jurisdiction, involving petitions numbered 303, 617 to 619, 621 to 631, 567 to 571, 592, 594, 596 and 600 of 1950. All petitions were filed under Article 32 of the Constitution seeking writs of habeas corpus. The petitioners had been detained pursuant to orders made under section 3(1)(a)(ii) of the Preventive Detention Act, 1950. While the petitioners remained in detention, the Preventive Detention (Amendment) Act, 1951, came into force on 22 February 1951. This amendment Act substituted the year “1952” for “1951” in sub-section (3) of section 1 of the 1950 Act, thereby continuing the operation of the original Act until 31 March 1952. Because the 1950 Act fixed the maximum period of detention at one year, the petitioners applied for habeas corpus relief seeking their release. The Court recorded the material facts, the points raised by the petitioners, and the arguments presented by counsel. Counsel for the petitioner in Petition No. 303 of 1950 was Mr M. K. Nambiyar, assisted by Mr V. G. Row, while counsel for another petition was Mr Bawa Shiv Charan Singh.

Counsel for the petitioners in Petitions Nos. 618, 619, 621, 622, 624, 626, 627, 628, 629, 630 and 631 of 1950 appeared before the Court. In the petitions numbered 567, 568, 569, 570, 571, 592, 594, 596 and 600 of 1950, a counsel appearing as amicus curiae represented the petitioners. The respondents in the same group of petitions, that is, Nos. 618, 619, 621, 622, 624, 626, 627, 628, 629, 630 and 631 of 1950, were represented by counsel that included the Advocate-General of Madras together with another advocate who was assisted by an additional lawyer. In the petitions numbered 567, 568, 569, 570, 571, 592, 594, 596 and 600 of 1950, the respondents were defended by counsel supported by another advocate. One petitioner chose to appear personally in Petition No. 617 of 1950. The Union of India intervened in the proceedings; its case was presented by counsel led by the Attorney-General of India and supported by an additional advocate. The judgments for these matters were delivered on 7 May 1951. Chief Justice Kania, speaking for himself, said that he agreed with the judgment prepared by Justice Sastri and had nothing further to add. Justice Sastri then addressed the central issue common to all the petitions. He explained that the question before the Court was whether certain provisions of the Preventive Detention (Amendment) Act, 1951—referred to as the “new Act”—which purported to amend the Preventive Detention Act, 1950—referred to as the “old Act”—and thereby authorize the detention of the petitioners beyond the expiry of one year, were beyond the powers of the legislature and therefore inoperative. He noted that the new Act had come into force on 22 February 1951 and, by substituting the year “1952” for “1951” in subsection (3) of section 1 of the old Act, it extended the operation of the old Act until 31 March 1952. At the moment the new Act became effective, each petitioner was already detained under orders made pursuant to section 3(1)(a)(ii) of the old Act. Apart from a few instances where the detention was also challenged on special but unsubstantial grounds, the legality of those detentions was not in dispute. However, because those detentions had begun more than a year before the hearings of the petitions, the petitioners would have become eligible for release if not for the provisions of the new Act that purported to permit the continuation of their detention. Counsel for the petitioners, through Mr Nambiyar, argued that the relevant provisions of the new Act violated Article 22(4)(a) of the Constitution and were consequently void under Article 13(2). He quoted Article 22(4)(a), which states that no law providing for preventive detention may authorize detention for a period longer than three months unless an Advisory Board, consisting of persons qualified to be appointed as Judges of a High Court, reports before the expiration of the three-month period that there is sufficient cause for such detention, and further provides that nothing in this sub-clause shall permit detention beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7).

In order for a person to be lawfully detained for a period longer than three months, two statutory conditions must be satisfied. First, the individual's case must be referred to an Advisory Board that is constituted in the manner prescribed by law. Second, that Advisory Board must submit a report before the expiration of the three-month period, stating that there is sufficient cause to justify the continued detention. Under Section 12 of the earlier legislation, the statute expressly excluded any review by an Advisory Board in cases that fell within Section 3(1)(a)(ii). Consequently, the petitioners, whose detention arose under orders made pursuant to that subsection, were detained in accordance with Article 22(4)(b) of the Constitution. Because their detention was classified under Article 22(4)(b), there was no conflict with the requirements of Article 22(4)(a), which imposes the two-condition test for extended detention.

The new legislation was designed to broaden the scope of Advisory Board review so that every case of preventive detention would be subject to such scrutiny, and it required the detaining authorities to act in conformity with the Board’s findings. To achieve this objective, the legislature repealed certain provisions of the old Act and replaced them with new provisions, principally contained in Sections 9, 10, 11 and 112 of the amended statute. Section 9 mandates that a reference to an Advisory Board be made within six weeks of a specified date, which is defined in sub-section (2) of that section. That date is (a) the date of commencement of the Preventive Detention (Amendment) Act, 1951, when the person was already detained under a order made under either sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (1) of Section 3, and (b) in all other cases, the date on which the detention order itself was issued. Section 10 requires the Advisory Board to submit its report within ten weeks of the date prescribed in sub-section (2) of Section 9. Section 11(1) empowers the appropriate Government to extend the period of detention for as long as it deems necessary if the Board’s report concludes that sufficient grounds exist for continued detention; conversely, sub-section (2) obliges the Government to revoke the detention order and release the detainee if the Board’s report finds no such grounds. For the sake of clarity, sub-section (1) of Section 12 declares that every detention order that was in force at the moment the new Act commenced shall remain in force and shall be treated as if it had originally been made under the amended Act. Moreover, sub-section (2) provides that nothing contained in subsection (3) of Section 1 or in subsection (1) of Section 12 of the old Act shall affect the validity or duration of any such order. It is apparent, therefore, that although the purpose of the new Act was to liberalise the provisions of the previous legislation in the manner described, the statutory scheme introduced new procedural timelines and a compulsory link between the Advisory Board’s report and the continued legality of preventive detention.

In this case the court observed that section 12 of the new enactment effectively enlarged the detention period of the petitioners who were already detained when the new Act began to operate by creating a legal fiction that their detention should be treated as if it had been made under the new statute. The purpose of the new legislation, the court explained, was to bring detention orders that were in force at the commencement of the Act and that had become more than three months old into conformity with article 22(4)(a) of the Constitution. To achieve that aim the Act prescribed a period of six weeks in section 9 for referring such cases to an Advisory Board and a period of ten weeks in section 10(1) for the Board to submit its report, with both periods calculated from the date the new Act came into force.

The court then noted that, in the petitioners’ circumstances, more than three months had elapsed since their arrest without any Advisory Board having produced a report on the legality of their detention. Consequently, it was impossible for the Board now provided for by the new Act to submit a report before the expiry of the statutory period, and the petitioners’ continued detention therefore violated article 22(4)(a). The court acknowledged that the detention up to the commencement of the new Act had been lawful under the old Act’s section 12, because it satisfied sub-clause (b) of article 22(4). However, the court emphasized that this lawful detention under sub-clause (b) could not be treated as no detention at all for the purposes of sub-clause (a). Detention is a concrete physical fact, and because the total period of confinement exceeded three months without a Board report confirming sufficient grounds, the detention could not be lawfully continued under article 22(4)(a). The court further stressed that constitutional guarantees of fundamental rights cannot be sidestepped by resorting to legal fictions.

Addressing an argument that the petitioners might have been lawfully released on 22 February 1951 and then immediately re-arrested under the new Act, the court observed that such a course would render sections 9(2)(a) and 12(1) of the new Act unnecessary. Parliament, however, chose a different approach by providing that existing detention orders should continue as if they had been made under the new legislation. Accordingly, the court held that the situation must be examined on that basis rather than on any hypothetical alternative. The Attorney-General, on the other hand, contended that the constitutional validity of sections 9(2)(a) and 12(1) could be upheld under article 22(4)(b), a position that had been supported by a majority of the judges in the earlier judgment of A.K. Gopalan v. State of Madras.

In the earlier decision of A K Gopalan v. The State of Madras, a majority of the Judges held that the Constitution contains a distinct and independent provision that authorises preventive detention for a period longer than three months, provided that such detention is made under a law passed by Parliament in accordance with sub-clauses (a) and (b) of clause (7) of article 22. The Attorney-General argued that the provisions of the new Act could be regarded as such a law because Parliament might have intended to bring the law within article 22(4)(a) by requiring a review by an Advisory Board in every case of preventive detention. On the question of constitutional validity, the Court stated that the Legislature’s intention is irrelevant. The presence of a provision for an Advisory Board does not, by itself, mark a preventive-detention law as one that must fall within sub-clause (a) of clause (4) and therefore be examined solely according to the requirements of that sub-clause. The Court further observed that the law could still be sustained if it satisfied the conditions laid down in sub-clause (b) of clause (4). Counsel for the respondent, Mr. Nambiyar, contended that the new Act failed to meet those conditions because it was not a law made under sub-clauses (a) and (b) of clause (7). He argued that the word “and” should be read in its ordinary conjunctive sense and that the Act neither specifies the circumstances and classes mentioned in sub-clause (a) nor the maximum period of detention required by sub-clause (b) of clause (7). The Court dismissed this contention as lacking substance. In the Court’s view, the new Act may be considered a law made substantially in accordance with sub-clauses (a) and (b) of clause (7). The Court also noted the citation (1) [1950] S.C.R. 88 in support of this analysis.

The Court then explained the majority view expressed in Gopalan’s case that sub-clause (a) of clause (7) is an enabling provision, and consequently the word “and” should be understood in a disjunctive sense. Accordingly, the combined effect of sections 9(2)(a) and 12(1) of the new Act is to allow, in a particular class of cases—namely where detention orders were already in force at the commencement of the new Act—the continuation of detention for a period longer than three months, provided that an Advisory Board reports within ten weeks from the commencement of the Act that there are sufficient grounds for detention. This arrangement permits detention to extend beyond the three-month limit without obtaining the Advisory Board’s opinion before the expiration of those three months, as required by sub-clause (a) of clause (4). Although the new Act does not expressly prescribe a separate maximum period of detention for any class of persons, it does establish an overall time limit by extending the duration of the previous Act until 1 April 1952, after which preventive detention under the new Act cannot continue. The Court also referred to the general rule concerning temporary statutes, which holds that, unless a special provision states otherwise, proceedings against a person under a temporary statute terminate automatically when the statute expires. This principle supports the conclusion that the new Act, by specifying its own expiry date, effectively sets a maximum period of detention, thereby satisfying the requirements of sub-clause (b) of clause (4) of article 22 and rendering sections 9(2)(a) and 12(1) constitutionally valid.

According to established principle, a proceeding that is based on a temporary statute terminates automatically when that statute ceases to exist, as explained in Craies on Statutes, fourth edition, page 347. Consequently, a preventive detention that would otherwise be a continuing wrong, if not for the authority of the Act, cannot lawfully persist beyond the date on which the Act itself expires. By providing that the new Act shall lose its effect on a specific date, the legislation in substance imposes a maximum period for any detention authorized under it. In the present case, it follows that sections nine two a and twelve one of the new Act sufficiently fulfill the requirement of sub-clause b of clause four of article twenty-two, and therefore these provisions cannot be declared unconstitutional or void. The challenge to the validity of section eleven one can be resolved briefly. The contention raised was that the discretionary power granted to the appropriate Government by that subsection to continue a detention “for such period as it thinks fit” effectively permits an indefinite detention, which would be inconsistent with article twenty-two four. However, as already observed, the new Act is limited in its operation to a period ending on first April nineteen fifty-two, and no detention under the Act may lawfully continue after that date; thus the discretionary power is necessarily constrained by that overall time limit. Accordingly, the objection fails. As a result, the petitions were dismissed.

Justice Mahajan noted that the principal issue to be resolved in these petitions was whether the Preventive Detention Amendment Act nineteen fifty-one, or any part thereof, was invalid, and whether the petitioners who were detained were entitled to a writ of habeas corpus on the ground that their detention was unlawful. The Act had been passed by Parliament on twenty seventh February nineteen fifty-one and, by its express terms, was to cease to have effect on first April nineteen fifty-two, except with respect to acts done or omitted before that date. The specific question before the Court was whether sections nine two a and twelve of the Act were invalid because they infringed the fundamental rights guaranteed under articles twenty-one and twenty-two of Part Three of the Constitution. Section nine of the Act, as amended, was quoted as follows: “(1) In every case where a detention order has been made under this Act, the appropriate Government shall, within six weeks from the date specified in subsection two, place before an advisory board constituted by it under section eight the grounds on which the order has been made and any representation made by the person affected by the order, and where the order has been made by an officer, also the report made by such officer under subsection a of section three. (2) The date referred to in subsection one shall be— (a) in every case where at the commencement of the Preventive Detention Amendment Act nineteen fifty-one a person is under detention pursuant to a detention order made under sub-clause i or ii of clause a of sub-section one of section three, the date”.

Section 9 of the Preventive Detention (Amendment) Act, 1951, defined two situations for determining the relevant date in sub-section (1). It stipulated that the date referred to in sub-section (1) would be (a) the date of commencement of the said Act in every case where, at the commencement of the amendment, a person was already detained under a detention order made under sub-clause (i) or (ii) of clause (a) of sub-section (1) of section 3, and (b) the date of the detention order in every other case. Section 12 was expressed in the following terms: “For the avoidance of doubt it is hereby declared— (a) every detention order in force at the commencement of the Preventive Detention (Amendment) Act, 1951, shall continue in force and shall have effect as if it had been made under this Act as amended by the Preventive Detention (Amendment) Act, 1951; and (b) nothing contained in sub-section (a) of section 1, or sub-section (1) of section 12 of this Act as originally enacted shall be deemed to affect the validity or duration of any such order.” The counsel for the detenus, Mr Nambiar, challenged the constitutionality of these provisions on several grounds.

He argued first that article 22(4) of the Constitution limited the power of Parliament and state legislatures to legislate on preventive detention by requiring that no detention could exceed three months without the intervention of an advisory board and without obtaining the board’s opinion within that three-month period. He contended that section 9 of the amendment authorized detention for a period longer than three months without obtaining the advisory board’s opinion for persons detained under Act IV of 1950 as originally enacted, thereby infringing the fundamental right guaranteed by article 22(4). Secondly, he submitted that Parliament, under article 22(7), had prescribed a maximum period of one year for detention in certain classes of cases in section 12 of Act IV of 1950, and that this one-year limit had become part of the content of the fundamental right in article 22(4). He asserted that sections 9 and 12 of the amended Act contravened this right by allowing detention of persons held under orders passed under section 3(1)(i) and (ii) of Act IV of 1950 beyond the one-year period, rendering them void. Thirdly, he maintained that Parliament lacked authority to alter the one-year period prescribed by it under article 22(7)(b) of the Constitution so as to affect the eases of persons detained under Act IV of 1950. Fourthly, he argued that the Constitution did not contemplate detention for an indefinite period and that the amended Act, by failing to fix a maximum period of detention, was repugnant to the Constitution and therefore void; he emphasized that Parliament was obligated to set a maximum period when enacting preventive detention legislation. Finally, he claimed that the provisions of these sections infringed article 21 of the Constitution because they authorized detention contrary to the procedure established by law in Act IV of 1950, where detention beyond one year was void.

The Court observed that the provisions under the amended Act authorised detention that was inconsistent with the procedure established by law in Act IV of 1950, because the established procedure declared any detention beyond one year to be void. It was therefore argued that, since the maximum period of one year under section 12 of Act IV of 1950 had expired on 27 February 1951 in the petitioners’ cases, the petitioners were entitled to be released. To appreciate the arguments raised by counsel for the petitioners and the way those arguments were countered by the Attorney-General, the Court found it necessary to briefly outline the nature of the amendments introduced by the amending Act to the Preventive Detention Act, IV of 1950. Section 8 of Act IV of 1950, which deals with the constitution of advisory boards, was amended so that the board would consist of three members instead of two, except where a reference to an advisory board had already been made before the amended Act came into force. Section 9 of the original Act was substituted by a new section 9 in the amending Act, extending the benefit of an advisory board to every class and case of person who, under the original Act, had not been entitled to that benefit. The amendment made it mandatory for the Government to refer all such cases, together with all other cases, to an advisory board within six weeks of a prescribed date. Under the amended section 10, the advisory board was required to submit its report to the Government within ten weeks of the date specified in section 9; the board was also authorised to call for any information it deemed necessary from the Government or from the person concerned and to grant a hearing to the detainee in any case it considered essential. Section 11 made the advisory board’s opinion binding on the Government and authorized the Government to continue the detention of a person for such a period as it thought appropriate where the board’s opinion favored the continuance of detention. Section 12 provided that any detention orders already in force at the commencement of the amended Act would be deemed to have been made under the amended Act. A new section 14 was introduced, permitting the temporary release of detained persons. The Court noted that these provisions represented a considerable improvement over the original Act because they gave detainees a much better opportunity to prove their innocence than was previously available. The practice of detaining a person without referring the case to an independent advisory board had been entirely eliminated, except for a three-month period allowed under article 22(4) of the Constitution. The Court therefore concluded that the amended Act had substantially altered the procedural safeguards applicable to preventive detention.

In this case the Court observed that the amended legislation replaced the procedure of having ordinary courts consider the cases of persons who were preventively detained with a procedure that assigned a special tribunal, called an advisory board, the responsibility to examine those cases. The advisory board was to be composed of men possessing high judicial experience, and it was empowered to conduct its review within a prescribed time-frame. The Court noted that the decision of this advisory board was made binding on the Government. Although the Court recognized that the advisory board was not a substitute for a regular court of law, it regarded the provision as a substantial form of compensation in preventive detention matters, where ordinarily the authority that ordered the detention also acted as the judging authority.

The Court explained that the criticism raised by Mr Nambiar concerned the validity of these beneficial provisions. His objection focused primarily on the method used by the drafters of the Act to transfer detentions that were being continued under section 12 of Act IV of 1950, detentions that were valid under article 22(4)(b) of the Constitution, to the constitutional regime of article 22(4)(a) so that the detainees could obtain the benefit of an advisory board’s opinion. Mr Nambiar contended that, by effecting this transfer, the amended statute had enlarged the three-month period prescribed in article 22(4) for the advisory board’s report and had extended the one-year period specified in section 12 of Act IV of 1950. He based his argument on the assumption that the one-year period in section 12 of the 1950 Act was immutable and that Parliament could not amend that section in any manner after its enactment.

The Court rejected this contention. It held that Parliament retained the authority to amend section 12 and to substitute a different maximum period for the one-year term indicated therein. The Court reasoned that, had Parliament exercised this power, the petitioners would have no grievance regarding the validity of the new legislation. Regarding the three-month period, the Court found it necessary to fix a starting date for its calculation for cases that had previously been governed by section 12 of the 1950 Act, which did not afford the benefit of an advisory board. When the new law introduced that benefit, a definitive point in time—referred to as the terminus quo—had to be established for the three-month interval within which the advisory board was required to submit its report. The amended Act achieved this by prescribing, for the specified classes of cases, that the commencement date of the amended Act would serve as the starting point for the three-month period, and by declaring, through section 12, that all detentions continuing on that commencement date would be deemed to be detentions under the amended Act.

After a careful consideration of Mr Nambiar’s argument, the Court concluded that the assumptions on which his challenge was based were untenable.

The Court stated that it found considerable merit in the response submitted by the Attorney-General. The Attorney-General argued that Article 22(4) of the Constitution limits any law on preventive detention from authorising a detention longer than three months, and that the amended Act did not violate this limitation; the amended Act merely required the advisory board to submit its report to the Government within ten weeks. The Court noted that it had been urged that, when assessing the constitutionality of the amended Act, it was irrelevant to consider the detention of persons who were lawfully detained under a different statute; rather, the validity of the amended Act should be examined solely on the basis of its own provisions, without reference to the practical consequences of any other law. The Court also observed that it was openly admitted that if Parliament or a State Legislature enacted legislation with the purpose of subverting the Constitution—effectively committing a fraud upon the Constitution—such legislation could be challenged on that ground, but not on the ground of its substantive validity. In the present case, no argument of that kind had been advanced, and consequently the contention raised by counsel for the petitioners was deemed unfounded. The Court further expressed the view that the statute, as framed, did not contravene or diminish either Article 21 or Article 22 of the Constitution. It held that Parliament was entitled, as already noted, to modify the maximum period of detention specified in Section 12 of the 1950 Act and to increase it, and that the Government was likewise empowered to release detainees after one year and to issue fresh detention orders against them under the amended Act. If such release and re-detention had occurred, no question could be raised that the three-month limit in Article 22(4) had been affected. Instead, by inserting Section 12 in the amended Act, Parliament deemed all detention orders that were in force under the 1950 Act to be detention orders under the amended Act. Consequently, the detention of each such person became a new detention under the revised law, and the amended statute could not be said to abridge the fundamental right guaranteed by Article 22(4). The Court rejected the argument that the amended statute was merely a continuation of the 1950 law and that the petitioners’ detention remained under the same preventive-detention legislation, thereby violating Article 22(4). It held that such reasoning amounted to an improper tacking of detention periods under two separate Acts, which the amended legislation did not permit.

In this case the Court examined the argument that the amendment of the statute indirectly and substantially infringed the fundamental right, and found that the argument, although appealing, was without force. The Court explained that although an amendment leaves the title of the enactment unchanged, it does not mean that the law contained in the amended enactment is identical to the law that existed before the amendment. Specifically, the Court noted that the original section 9 was replaced by a new section 9 in the amended Act, which therefore created a new legal rule rather than merely reenacting the previous rule. Likewise, the original section 12 was completely repealed, so the legal effect of that provision no longer existed, and the provision labelled as section 12 in the amended Act was a substituted provision with a different legal content. From these observations the Court concluded that the law declared by the amended statute was not the same law that had been declared by the original statute, and that, for this reason, the amended statute functioned as a new and independent enactment. Consequently, the petitioners were being detained today by virtue of the provisions contained in sections 9 and 12 of the amended Act, and not under the law that had been passed in 1950; the repeal of the original section 12 terminated any legal basis for their earlier detention. The Court further held that the new law, taken by itself, does not permit detention of any person for a period exceeding three months except in the manner prescribed by article 22(4) of the Constitution, and that there is no question of tacking the period of detention under one law to the period of detention under another, because the earlier detention automatically ended with the repeal of section 12 of the 1950 Act. For these reasons the Court found that the first contention advanced by the counsel for the petitioners failed. In view of this determination the Court saw no need to consider the alternative argument presented by the counsel for the State that, even if section 9 were held to contravene article 22(4)(a), it would nevertheless be valid under article 22(4)(b) and therefore the detention order would be lawful. The Court also rejected the counsel’s suggestion that, if the petitioners’ detention were to be regarded as a fresh detention under the amended Act, fresh grounds of detention would have to be served, observing that such a point had not been raised in the petitions and that no argument was made that any right under article 22(5) had been infringed. Moreover, the Court emphasized that the clear wording of section 12 of the amended Act, which deems every detention order existing at the commencement of the amended Act to continue under it, dispels any claim that the failure to re-serve the same grounds constitutes an infringement of the fundamental right under article 22(5). When detention is based on grounds already served, the omission of a fresh service of those grounds cannot be said to violate article 22(5) of the Constitution.

In this case, the Court observed that when a detention continues on the basis of grounds that have already been served, any failure to re-serve those same grounds on the detainee does not constitute a breach of the guarantee in article 22(5) of the Constitution. The Court then addressed the next argument presented by the counsel for the petitioners. That argument claimed that because Parliament, exercising the power in article 22(7), fixed the maximum period of detention in section 12 of Act IV of 1950, that maximum became part of the content of the fundamental right, and that sections 9 and 12 of the amended Act therefore violated the fundamental right by permitting detention of the petitioners for a period beyond one year. The Court found this contention unsound. In other words, the counsel’s submission was that once Parliament, by law under article 22(7), prescribes a maximum period for which any person may be detained under a preventive-detention law, that period automatically becomes a component of the fundamental right guaranteed under Part III of the Constitution. The Court explained that the only way to add to or subtract from those rights is through a constitutional amendment performed in the manner prescribed by the Constitution itself. Clause (7) of article 22 does not empower Parliament to enlarge the fundamental rights. The counsel’s position rested on an erroneous assumption that article 22(7) confers a substantive right on the individual; in reality it merely limits, to a certain extent, the scope of the right set out in clause 4(a) of the same article. Similarly, the counsel argued that Parliament lacks authority to alter the one-year period prescribed by article 22(7)(b), based on the mistaken belief that the clause bestows legislative power on Parliament. The Court clarified that the legislative authority of Parliament is defined by article 245 read with the entries in the Seventh Schedule, and that article 22 places a restriction on that authority rather than expanding it. Clause (7) merely reduces the restriction to a limited degree. Because Parliament possesses the power to enact law, it also retains the power to amend that law if it so wishes. Consequently, the Court could not accept the counsel’s proposition that a person detained under a law that existed at the time of his detention is affected only by that law and that any subsequent amendment, even if retrospective, cannot in any way impact him. Finally, the Court considered the argument that the Constitution does not envisage indefinite detention and therefore obliges Parliament to prescribe a maximum period for preventive detention. The Court again found this argument untenable. Emphasis was placed

In this case the Court examined the proviso to article 22 (4) (a) of the Constitution, which states that nothing in that sub-clause may authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7). It was submitted that the word “may” in article 22 (7) should be read as “must” and that it therefore carries a compulsory force because the enactment authorises Parliament to prescribe, by law, a maximum period of detention for the purpose of advancing justice, protecting the public good or benefitting those placed under preventive detention. The counsel relied on Maxwell’s Interpretation of Statutes (9th edition, p. 246) and on the well-known decision of Julius v. Bishop of Oxford (5 App. Cas. 214). In that case Lord Cairns observed that when a power is given to a public officer for the benefit of persons, that power ought to be exercised.

The Court, however, held that clause (7) of article 22, as already explained, in its true sense imposes a certain restriction on the fundamental right contained in clause (4) (a). Consequently, the rule cited from Maxwell has no application to the present provision. Moreover, the constitutional provision is merely an enabling one, and it is well settled that words of a permissive nature in an enabling enactment cannot be interpreted as imposing a compulsory duty (see Craies on Statute Law, p. 25, 4). The Court observed that this issue was already decided by the majority in Gopalan’s case ([1950] S.C.R. 88). The learned Chief Justice, at page 119 of the report, declared that sub-clause (b) is permissive; Parliament is not obligated to prescribe any maximum period of detention. The argument that this would allow Parliament to permit indefinite detention was rejected, the Court noting that such a construction would arise directly from the wording of sub-clause (7) itself and that the judiciary could not intervene.

The Court further expressed that nothing said by Mr Nambiar persuaded it to depart from the view expressed in Gopalan’s case. It was pointed out that Parliament might have considered it unnecessary to fix a maximum period of detention in the new statute because that statute was of a temporary nature, its life limited to one year. Temporary statutes cease to have any effect after they expire; they automatically terminate at the end of the period for which they were enacted, and no further action can be taken under them. Accordingly, the detention of the petitioners would necessarily come to an end with the expiration of the statute. In those circumstances Parliament could rightly have thought that providing a specific maximum period of detention for those detained under this law was wholly unnecessary.

In this case the Court considered the final argument raised by counsel that the provisions of the amended Preventive Detention Act conflicted with article 21 of the Constitution. The Court found that argument unconvincing. The expression “procedure established by law” had previously been interpreted by the majority in Gopalan’s case (1) to mean the procedure that is prescribed by law. The petitioners had been detained according to the procedure set out in the amended statute, and therefore their detention complied with a procedure prescribed by law. Counsel for the petitioners contended that the applicable procedure should still be the one found in section 12 of Act IV of 1950, because that was the procedure in force when the detention originally began. The Court rejected that contention as untenable, observing that Parliament retains the power to alter the procedural framework by enacting new legislation, and such a new procedure becomes the “procedure established by law” within the meaning of article 21. Consequently, the present detention, being effected under section 12 of the amended Act, constitutes a new detention governed by the procedure laid down in that amendment, and that procedure satisfies the requirement of article 21. For these reasons the Court held that the Preventive Detention (Amendment) Act, 1951, is a constitutionally valid statute, that its challenged provisions do not breach the Constitution, and that the petitioners could not obtain release merely because the one-year period mentioned in section 12 of Act IV of 1950 had lapsed.

The Court then turned to the substantive merits of the petitions. It was alleged that the grounds of detention were vague and insufficient to enable a proper representation, and that the detentions were made in bad faith for political and party considerations. The Court found no substance in either allegation. Accordingly, all the petitions were dismissed and the rules of detention were discharged. The order was declared to have effect on any petitioners who had not yet been released by the Government. Justice S.R. Das concurred with the dismissal and affirmed the reasons set out by the senior colleague. Justice Bose, however, expressed respectful disagreement with the majority view. He opined that section 11(1) of the amending Act exceeded legislative competence. He explained that his ground for this view had been suggested during the oral arguments, though he felt he had not been able to develop it fully because his comments were made late and somewhat sketchily. Nevertheless, he maintained that he was charting a solitary course. He observed that articles 21 and 22 guarantee the fundamental right to personal liberty, noting that the first article is general and that the meaning of “procedure established by law” had already been exhaustively discussed in Gopalan’s case (1), a subject he did not feel the need to revisit further.

Regarding Article 22(4), the Court observed that the provision creates a fundamental right protecting an individual from being placed in preventive detention for a period that exceeds a prescribed limit. The Court explained that while the exact length of the permissible period may differ according to the circumstances, the Constitution permits an extension beyond three months only under strictly defined limits and only when certain conditions laid down in the Constitution are satisfied. The Court further noted that Article 246, read with entry 9 of List I and entry 3 of List III of the Seventh Schedule, vests the Union Parliament and the State Legislatures with the power to enact legislation dealing with preventive detention. However, the Court emphasized that Article 22(4) imposes a constitutional restriction on that legislative competence.

The Court then turned to the wording of Article 22(4), which declares that no law providing for preventive detention may authorize detention for a period longer than three months unless the law meets the conditions specified in sub-clause (a) and sub-clause (b) of that article. Under sub-clause (a), the Court explained, a law may provide for detention beyond the three-month ceiling only if three requirements are fulfilled: first, an advisory board of a prescribed nature must be constituted; second, the advisory board must be of the opinion that there exists sufficient cause for extending the detention; and third, the advisory board must submit its report before the expiry of the initial three-month period. The Court further pointed out that a second limitation is contained in the proviso to sub-clause (4). The proviso states that nothing in sub-clause (a) shall empower the detention of any person beyond the maximum period that Parliament may prescribe under sub-clause (b) of clause (7). The Court then quoted the text of sub-clause (b) of clause (7), which reads: “Parliament may by law prescribe … the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention.”

Having dealt with sub-clause (a), the Court proceeded to discuss the further set of conditions found in sub-clause (b) of clause (4). According to the Court, sub-clause (b) permits a person to be detained for a period exceeding three months if the detention is carried out in accordance with the provisions of any law made by Parliament under both sub-clauses (a) and (b) of clause (7). The Court underscored the significance of the word “and” in that phrase, indicating that the presence of both elements—prescription of a maximum period and the circumstances under which the period may be applied—is essential to the constitutional scheme. Although the Court reserved further analysis of that point for a later stage, it highlighted the importance of the conjunctive wording.

Turning to sub-clause (a) of clause (7), the Court explained that this sub-clause empowers Parliament to prescribe “the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months 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).” The Court reiterated that these constitutional provisions together establish a fundamental right protecting an individual from detention beyond a certain period, and that while the exact duration may vary, the maximum period of detention is confined to two fixed limits. The first limit is the three-month period expressly mentioned in Article 22(4). The second limit is the maximum period that Parliament may prescribe under sub-clause (b) of clause (7). Finally, the Court concluded that no law may be enacted authorising detention under either sub-clause (4)(a) or sub-clause (4)(b) unless Parliament has first prescribed a maximum period of detention pursuant to sub-clause (b) of clause (7).

In the present discussion, the Court rejected the argument that the word “may” in clause (7) should be read as “must.” The Court held that it would not depart from the ordinary meaning of a word unless there were overwhelming reason to do so. Accordingly, it was expressed that Parliament possesses the freedom either to prescribe a maximum period of preventive detention under sub-clause (7)(b) or to leave such a maximum unspecified, and that Parliament cannot be forced to set such a limit. The Court further observed that neither Parliament nor a State Legislature is compelled to authorise preventive detention for a period exceeding three months. However, if either authority chooses to permit detention beyond three months, it must do so in accordance with the provisions of sub-clause (a) or sub-clause (b) of clause (4), or both, and that the proviso attached to sub-clause (a) forms an integral part of that sub-clause. The Court explained that when no maximum limit is fixed under sub-clause (7)(b), the proviso cannot operate, and consequently, no legislative action may be taken under clause (4)(a). To illustrate this point, the Court offered a hypothetical where a person is told he may withdraw money from a bank only up to a limit that a third party may set; until the third party actually fixes the limit, the withdrawal cannot occur. Similarly, if the person himself may set the limit, he has no right to withdraw until he determines that limit. The Court also described an analogy involving a British General who is permitted to travel by plane from India to Burma and is told he may travel by car only if a road is built by the Burmese Government at India’s expense. Since the Burmese Government is under no obligation to construct the road, the General cannot travel by car unless the road is provided. While acknowledging that analogies may be imperfect, the Court used them to clarify its reasoning.

The Court concluded that the Constitution conveys two related principles. First, it tells State Legislatures that they may enact laws permitting preventive detention beyond three months, but only up to a maximum period that Parliament may choose to fix. Second, it tells Parliament that it may also enact such laws, provided that the detention does not exceed a maximum period that Parliament itself may determine. The Court emphasized that there is no requirement that a maximum period be fixed in either case; however, if no maximum is fixed, then legislation under clause (4)(a) cannot be validly made. In other words, just as a road must exist before a right of way can arise, a predetermined maximum period must exist before a lawful authority to detain beyond three months can arise. The Court therefore affirmed that without a prescribed maximum, any legislative scheme authorising preventive detention beyond the three-month limit would be untenable.

In this case, the Court noted that the same limitation applied to clause (4)(b). Legislative action could not be taken under that provision unless two conditions were satisfied: first, the law had to be enacted by Parliament; second, the law had to be made “under sub-clauses (a) and (b) of clause (7).” The Court again emphasized the word “and,” stating that, in its view, the conjunction should be given its ordinary meaning unless a compelling reason existed to interpret it otherwise. The Court found no such compelling reason and, on the contrary, identified strong reasons for giving the word its normal sense.

The reasons, according to the Court, were that Articles 21 and 22 confer a fundamental right and a fundamental guarantee. Accordingly, the Court said it was its duty to preserve the fundamental character of the right and to grant the guarantee its fullest possible scope. The Court further declared that it must ensure that the right and the guarantee are not rendered illusory or meaningless. Hence, whenever a difference of opinion arose regarding the interpretation of a provision, the Court insisted that the interpretation favoring the individual should be adopted, because the right had been conferred upon the individual and the right itself was fundamental, not the restrictions that Parliament might impose.

The Court acknowledged that the complete scope and content of the right could not be determined without examining the limits within which it was to be confined. It agreed that all clauses should be given equal weight in interpretation and that no single part could be treated as more sacred than another. However, the Court held that if, after such balanced analysis, doubt remained, that doubt should be resolved in favor of the individual rather than the State.

The Court then urged readers to set aside technical disputes over words such as “and,” “or,” “may,” and “must,” and to look beyond mere verbal wording to the heart and spirit of the Constitution. It asked what kind of State the Constitution envisaged, reminding that the Constitution guarantees a way of life centred on individual freedom consistent with the State’s safety. The Court reiterated that the sanctity of the individual is repeatedly recognised and that the Constitution stands in stark contrast to systems where the State dominates the individual. Concluding, the Court stated that whenever ambiguity or doubt exists in constructing any clause of the chapter on Fundamental Rights, the doubt must be resolved in favor of the freedoms that the Constitution solemnly emphasizes.

In this case, the Court examined the introductory statement of the Constitution which declares, “We, the people of India, having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens: Justice, Liberty, Equality, Fraternity.” The Court then turned to the provisions contained in the chapter on Fundamental Rights, noting that the text affirms that “All citizens shall have the right …” and further provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Court also observed the clause that no individual who is arrested may be detained in custody without the safeguards prescribed, and the provision that “No law providing for preventive detention shall authorise … unless …”. After reviewing the constitutional limits placed on parliamentary power, the Court asked what the overall effect of these provisions is. It concluded that the Constitution places a clear emphasis on the freedoms granted to individuals and that any restrictions on those freedoms are intended only as regrettable necessities. The Court affirmed that constitutional interpretation must follow the established canons of construction and that when the language of a provision is plain, its full meaning must be given effect regardless of the consequences. However, the Court insisted that in cases of ambiguity or doubt, where two reasonable interpretations are possible, the interpretation favoring liberty and freedom must be adopted, echoing the view of Lord Romer in Liversidge’s case, albeit with an exception noted for wartime legislation. The Court questioned how it could be said that the present matter contained no ambiguity or doubt, especially when asked to treat “and” as “or” and “may” as “must.” It further examined the statement that “no law providing for preventive detention shall authorise the detention of a person for a longer period than three months” unless an Advisory Board is constituted, and even then not beyond “the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7).” The Court found that this language does not unequivocally preclude indefinite detention under a State law if Parliament does not act under clause (7)(b). Consequently, the Court recognised that ambiguity and doubt remain. It observed that the people of India chose a free way of life and entrusted their elected Parliament with the responsibility of ensuring that any future limitations on freedoms are necessary, essential, and never exceed limits that Parliament itself may deliberately and solemnly set after careful scrutiny. The Court expressed its inability to accept a view that the Constitution’s guarantees were meant to be illusory or subject to arbitrary manipulation.

The Court observed that the framers of the Constitution did not intend the liberties it guarantees to be mere illusion or to be manipulated by any individual. They did not create a cold, lifeless mass that could be moulded at will; rather, they fashioned a living organism, breathed life into it, and endowed it with purpose and vigor so that it might grow healthily within a democratic, free way of life. Consequently, the Court chose to decide in favour of the subject’s freedom. It noted that no consideration of war, necessity, or emergency legislation hindered this approach, and rejected the view that construction principles should be altered to favour the State when language in statutes is imperfect due to hurried enactment in perilous circumstances. Instead, the Court affirmed that it was interpreting a Constitution that was solemnly and deliberately hammered out after the most mature consideration and anxious care. In situations where ambiguity or doubt arises, the Court felt bound to resolve them in a manner consistent with the free way of a sovereign democratic republic. The Court reminded that the Constitution was framed for the benefit of the common people of India, not merely for those in brief authority, for lawyers, or for dialecticians. Therefore, it should be construed, whenever possible without violating the language employed, in a simple, straightforward fashion that makes sense to the ordinary man on the street, enabling all citizens to understand its meaning.

The Court further explained that the whole purpose of the Constitution, after years of bitter struggle, is to assure citizens that certain liberties are guaranteed and that these liberties may not be curtailed beyond limits that are known to the people and can only be fixed by the highest authority in the land—Parliament itself—directly and specifically after due deliberation in that august body. The Court declared that it would fight vigorously against any interpretation that permitted evasion of these essential limitations or allowed those hard-won liberties to be reduced by an accidental side wind that delegates the responsibility for fixing maximum limits to a lesser authority, or worse, permits ad-hoc determinations in each individual case. In the Court’s view, such a result occurs when Parliament fails to set a maximum and lesser authorities are left free to decide, case by case, how long an individual may be detained. The Court concluded that these matters must not be viewed narrowly or technically, but rather through the broad and liberal spirit in which they were conceived, keeping faithful to the Constitution’s intent to protect the freedom of the people.

In this case the Court examined the provisions of the amending Act that had been challenged. The Court held that section 9 was valid because it created a benefit and a privilege without taking anything away. It gave every detainee the right to appear before an Advisory Board for a review of his case. That right applied not only to persons who might be detained in the future but also to those who were already in detention, and it extended the right to persons who previously had no such entitlement. The Court found that granting this right did not infringe any fundamental right nor did it conflict with any article of the Constitution. Accordingly, Parliament was free to enact the provision as it saw fit. The provision also altered the starting point of the order of detention, which Parliament effected through sub-section (2)(a). The Court concluded that sub-section (2)(a) fell within Parliament’s constitutional power and was therefore intra vires.

The Court also considered the newly inserted section 12 and held it to be intra vires. Section 12 preserves in force the existing detentions even after the old Act had expired, and it states that the enactment of the new Act would not affect the validity or the duration of orders made under the old Act. The Court noted that the detentions under consideration had been lawful under the old Act, which prescribed a maximum period of one year for that class of detention. In the Court’s view Parliament was entitled to declare, for the purpose of removing doubt, that detentions already in force would continue for the maximum period previously prescribed. The meaning of the words “continue,” “validity,” and “duration” supported that interpretation, and section 12 was intended to dispel any uncertainty. Section 11(2) was also held to be intra vires because it conferred a new privilege by allowing detainees who previously had no right of release on the advice of an Advisory Board to obtain that privilege. However, the Court found sub-section (1) of the new section 11 to be ultra vires because it violated Article 22(4). The provision reads: “In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.” This wording is identical to the old Act’s section 11 and does not impose a maximum limit. The amending Act replaces the old sections 11 and 12 with the new section 11, thereby discarding the one-year maximum that old section 12 had imposed for certain classes of cases. No maximum limit is prescribed for other classes of detention under either the old or the new legislation, and the Court concluded that this omission contravened Article 22(4).

The judgment noted that the provision in question, by its terms, in effect shifts the responsibility for prescribing a maximum period of detention to the executive authorities of each State and permits those authorities to determine such a maximum on an ad hoc basis for each individual case. The judge clarified that he was not speaking in a technical legal language at that moment, but was instead adopting the perspective of an ordinary member of the public. He placed himself in the position of the detained person and examined the situation through the eyes of that person. In that view, the technical niceties of the law were of no consequence to the detainee, who did not concern himself with grammatical precision. What mattered to the detainee, the judge explained, was that he was confined behind bars, that Parliament had failed to fix any statutory limit applicable to his particular circumstance, and that the local authorities were asserting the right to decide how long his detention would continue. The judge stated that he could not accept that such a situation was intended by the Constitution. He observed that the powers granted to Parliament were ample and that the safeguards required for the protection of the State were already present. He further added that, in the ultimate resort, immediate action could still be taken under the emergency provisions. Consequently, when Parliament and the State Legislatures were told that they could not authorize preventive detention for a period exceeding three months unless Parliament itself established the limit, the judge expressed the opinion that the responsibility for fixing that limit rested solely on Parliament and that, in this specific matter, no delegation of authority was permissible. He emphasized that the Constituent Assembly had entrusted this particular issue to Parliament itself, thereby creating a special responsibility for Parliament. As a result, the nation was entitled to benefit from the mature judgment, wisdom and patriotism of that august body. The judge also affirmed that he did not doubt Parliament’s general power to delegate, but he maintained that such powers were limited and that each case must be assessed according to its own circumstances.

The judgment continued by noting that, because the matter was being considered in another case and because his view represented a dissenting voice, he felt it necessary to state that, in his judgment, the issue at hand could not be delegated. He rejected the argument that the point was irrelevant because a maximum limit had apparently been fixed in the present instance. He also refuted the contention that the life of the new Act, fixed for one year, and the life of the old Act, also fixed for one year, together effectively established a maximum period. While acknowledging the existence of strong authority supporting that view, the judge expressed, with great respect and reluctance, his inability to agree with it. He asserted that he could not accept that Parliament’s authority to set a maximum limit could be exercised indirectly. According to him, Article 22(7)(b) empowers Parliament to prescribe “the maximum period for which any person may, in any class or classes of cases, be detained.” Parliament, he argued, could not achieve that purpose by merely stating that no person shall be detained beyond a specific calendar date, such as 26 February 1952, because such a formulation would result in arbitrary differences—allowing a person arrested on 27 February 1951 to be detained for almost a year, while a person arrested on 25 February 1952 could be detained for only a single day. This, he concluded, was not the meaning intended by the Constitution when it required the prescription of a maximum period.

In the judgment, it was observed that a person arrested on 27 February 1951 could be detained for a full year, whereas an individual arrested on 25 February 1952 could be detained for only one day. The Court held that this disparity did not amount to a statutory prescription of a maximum detention period. It further explained that when Parliament is given authority to set a maximum period, such authority must be exercised with conscious and deliberate consideration after thorough debate. The Court reasoned that Parliament could not be said to have intended to rely on the provision simply by fixing the overall duration of the Act. Had Parliament debated the issue properly, it might have chosen to limit the maximum detention to, for example, six months even though the Act itself was intended to remain in force for one year. In other words, arrests could continue while the Act was operative, but no detention should extend beyond the separately fixed six-month ceiling. Respectfully, the Court could not accept that functions entrusted to Parliament by fundamental constitutional clauses could be performed without such conscious deliberation. In a further point, the Court disagreed with the view that all detentions would automatically cease when the temporary Act expired. It quoted the general rule for temporary statutes, stating that, absent a special provision, a temporary Act ceases to have effect after expiry and no new proceedings may be instituted thereafter; offences committed under the temporary Act must be prosecuted and punished before it expires (citing Craies on Statute Law, 4th edition, p. 347). However, the Court noted that transactions completed before expiry continue despite the Act’s termination, referring also to Craies page 348 and Halsbury’s Laws of England, Hailsham edition, p. 513. From this it inferred that a person convicted under a temporary Act and sentenced to, say, five years’ imprisonment must serve the full term even if the Act expired the next day. By analogy, the Court held that a person arrested under a temporary detention Act and validly ordered to be detained for a specified period could not claim release merely because the Act expired earlier. Yet the Court observed that the Act under consideration contained a special provision to the contrary. Section 11(1) empowered either a State or the Union Government to order detention “for such period as it thinks fit”. If this clause were not ultra vires, the Act expressly permitted the competent Government to order a detention that could extend beyond the life of the Act itself, unless…

The Court observed that even if the Constitution’s fundamental provisions are invoked, nothing bars Parliament from passing a law of the kind under discussion. Consequently, the mere fact that the Act in question is scheduled to cease on 26 February 1952 does not, in the Court’s view, require that all detentions effected under that Act must automatically terminate on that date. This implication is that the Act, either expressly or indirectly, does not prescribe any maximum period of detention. When the Court examined the effect of the majority’s decision upholding the validity of section 11(1) and extended its reasoning to its logical end, it concluded that the decision essentially conveys the following proposition: the Constitution informs every person residing in the territory of the extent of his liberty with respect to the duration of his detention. The Constitution guarantees that no one shall be detained for more than three months unless Parliament, either generally or with reference to a specific class of persons, directs otherwise. Yet, at the same time, the Constitution empowers Parliament to override that guarantee entirely, without any impediment or restriction. While Parliament may be authorised to set a maximum limit of detention, the Constitution does not compel it to do so; moreover, Parliament may enact legislation that authorises any individual or authority it chooses—down to the level of a police constable—to arrest and detain a person for an indefinite period, even for the remainder of that person’s life, thereby allowing a situation comparable to prolonged imprisonment such as that experienced by prisoners in the Bastille. The Court noted that, in the absence of any statutory constraints, Parliament undeniably possesses these powers, particularly in relation to preventive detention. However, if those restrictions are removed, the Court questioned what substance remains of the fundamental right it is meant to protect. The Court defined a fundamental right as one that Parliament may not alter except by amending the Constitution itself. The Court further explained that the content of such a right may be narrow, but unless some residual element survives that satisfies this definition, there is, in its opinion, nothing truly fundamental left. The Court expressed confidence that the Constitution intended to confer a fundamental right concerning the length of detention. It reasoned that it would be meaningless to embed a provision limiting detention to three months within the chapter on Fundamental Rights if that were not the intention, and likewise, the detailed provisions in clauses (4) and (7) would serve no purpose. A simple clause stating that no detention shall exceed three months “unless Parliament otherwise directs” would have sufficed. Therefore, the Court concluded that Parliament intended to create a fundamental restriction on detention length that it could not modify except through a constitutional amendment. Yet, if section 11(1) is upheld, the Court asked what, if anything, remains beyond Parliament’s reach, observing that Parliament, by upholding section 11(1), appears to have declared that no general limit on the duration of detentions is required.

In this case the Court noted that the Constitution, as interpreted by the majority, appears to allow Parliament to impose no overall ceiling on the period of detention and to empower subordinate authorities to determine the length of detention in each individual case, even to the extent of detaining a person for as long as they wish. The author questioned whether any fundamental protection concerning a maximum period of detention could survive such a scheme. He observed that the elaborate provisions contained in clauses (4) and (7) were designed to place restraints on powers that would otherwise permit indefinite and arbitrary detention, which would be absolute. For this reason he expressed the view that section 11(1) was beyond the powers of Parliament and therefore ultra vires.

He admitted a hesitation arising from the earlier decision in Gopalan’s case (1). He explained that he had examined the Gopalan judgment at length to determine whether it settled the present question and thereby bound him. After a careful study he concluded that it did not. He pointed out that the case involved six judges, and that the matter before the Court then concerned the original Act, not the amending Act of 1951, although the provision then examined corresponded to the present section 11(1). Only two of the judges – the Lord Chief Justice and a judge he referred to as his brother Mahajan – addressed section 11 directly, and both held that the provision was within constitutional limits, i.e., intra vires. According to their reasoning, the present section 11(1) would likewise have to be upheld. The remaining four judges did not consider the validity of section 11 at all, focusing instead on sections 12 and 14 of the old Act. He noted that another judge, referred to as his brother Das, made a general remark at the end of his judgment that, in his view, “the impugned Act is valid law except as to section 14,” without expressly dealing with section 11. Consequently, the author concluded that Gopalan’s case did not resolve the issue.

He then reflected that it was perhaps ironic that he was defending freedoms for a class of persons who, if reports of their activities were accurate, might be the first to undermine those freedoms should they obtain power. Nevertheless, he insisted that personal preferences could not influence his constitutional interpretation. He quoted Lord Justice Scrutton’s observation in Rex v Home Secretary, noting that applying principles to cases with which one has no sympathy is a true test of belief in those principles. He also quoted Justice Holmes of the United States Supreme Court, who said that the most compelling constitutional principle is the freedom of thought, especially for ideas one dislikes. By invoking these authorities, he reinforced his commitment to uphold constitutional liberty irrespective of his own feelings toward the petitioners. He therefore respectfully dissented from the majority, maintained that section 11(1) was ultra vires, and indicated that, in his view, the present detentions were unlawful and that the petitioners were entitled to immediate release.

In the matter before the Court, the judges observed that the detentions currently imposed were unlawful and therefore described the detentions as “bad.” The Court further expressed the view that each of the petitioners named in the various applications was entitled to be released without delay. On the basis of this assessment, the Court ordered that the petitions be dismissed. The official representative appointed to act on behalf of the petitioner in Petition Number 303 was identified as Subrahmanya. For the group of petitioners who filed Petitions Numbers 618, 619, 621, 622 and the series from 624 through 631, the Court recorded that the appointed agent was V.P.K. Nambiyar. The Court also noted the counsel representing the State of Madras, who was P.A. Mehta, and the counsel for the State of Assam, who was Naunit Lal. In addition, the Court indicated that the Union of India was represented by P.A. Mehta as well. The judgment concluded with a reference to the legal report citation (1) (1923) L.J.K.B, 797.