Tarapada De And Others vs The State Of West Bengal

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

Court: supreme-court

Case Number: 24 of 1050

Decision Date: 25 January, 1951

Coram: Hiralal J. Kania, Saiyid Fazal Ali, B.K. Mukherjea, N. Chandrasekhara Aiyar

In this case, the Supreme Court recorded that a large number of persons had been detained under the Bengal Criminal Law Amendment Act, 1930, and that the validity of that Act was being challenged before the High Court of Calcutta. While the challenge was pending, the Parliament enacted the Preventive Detention Act of 1950 on 26 February 1950, and on that same day detention orders under the new Act were served on the same individuals. The grounds of detention were communicated to them on 14 March 1950. Subsequently, on 16 July 1950 the Government served what it described as “supplementary grounds” in continuation of the earlier grounds, and a second set of grounds was communicated on either 22 or 23 July 1950. The appellants then filed petitions for habeas corpus in the Calcutta High Court, contending that the detention orders were invalid for various reasons. The High Court rejected the petitions, and the appellants appealed to this Court. The judgment, delivered on 25 January 1951, was reported as 1951 AIR 174 and 1951 SCR 212.

The Court, speaking through Chief Justice Hiralal Kania, Justice Saiyid Fazal Ali, Justice B.K. Mukherjea and Justice N. Chandrasekhara Aiyar, held that, given the extraordinary circumstances in which a large number of detentions had to be processed after the passage of the Preventive Detention Act, the requirement of Article 22(5) of the Constitution that the grounds be communicated “as soon as may be” was satisfied. The Court also found that the appellants had been afforded the “earliest opportunity” to make a representation, because the later communications on 16 July and 22–23 July did not introduce any new or additional grounds; they merely elaborated on the heads of grounds already provided on 14 March, even though they were labeled “supplementary”. Further, the Court observed that a ground described as vague does not become a non-existent ground; a vague ground is distinct from an irrelevant ground that bears no connection to the Government’s satisfaction. The sufficiency of the grounds for the purpose of the Government’s satisfaction was held to be a matter beyond judicial scrutiny, although the Court could examine whether the grounds were sufficient to give the detainee an early opportunity to make a representation.

Justice Das, delivering a separate opinion, noted that the fact that many fresh detention orders were issued in a short period did not, by itself, demonstrate bad faith on the part of the authorities. He observed that the authorities had examined the suspected activities of each detainee and concluded that detention was necessary to prevent a prejudicial act. The Court cited the decision in State of Bombay v. Atma Ram Sridhar Vaidya as persuasive authority.

The Court observed that a vague ground for detention cannot be treated in the same manner as an irrelevant ground. An irrelevant ground has no connection at all with the satisfaction of the Government, whereas a vague ground, though imprecise, may still relate to the purpose for which the Government seeks satisfaction. Accordingly, the adequacy of the grounds for the purpose of satisfying the Government is not a question that the Court can examine. The Court may, however, assess whether the grounds are sufficient to afford the detained person the earliest opportunity to make a representation, but that assessment is limited to the procedural aspect of providing that opportunity. In addition, Justice Das noted that the issuance of a large number of fresh detention orders overnight does not, by itself, demonstrate bad faith on the part of the authorities. The authorities had already considered the suspected activities of each detainee and were convinced that, in order to prevent them from committing prejudicial acts, detention was necessary. This view was supported by the precedent set in State of Bombay v. Atma Ram Sridhar Vaidya, cited on page 167 of the reports.

The judgment was delivered in the criminal appellate jurisdiction, Case No. 24 of 1950, arising under article 132(1) of the Constitution of India. It was an appeal against the order of the High Court of Judicature at Calcutta in Criminal Miscellaneous Case No. 361 of 1950, which had dismissed the habeas corpus petitions filed by the appellants. The appellants were represented by counsel, while the respondent was represented by the Attorney-General and counsel. The judgment was pronounced on 25 January 1951. The judgment of Chief Justice Kania, together with Justices Fazl Ali, Mukherjea and Chandrasekhara Aiyar, was delivered by Chief Justice Kania, and Justices Patanjali Sastri and Das gave separate opinions. The factual background disclosed that detention orders under the Preventive Detention Act, 1950, were served on the appellants on 26 February 1950, and the grounds for detention were served on 14 March 1950. A sample of those grounds was quoted, stating: “You are being detained in pursuance of a detention order made under sub-clause (ii) of clause (a) of subsection (1) of section a of the Preventive Detention Act, 1950 (Act IV of 1950), on the following grounds: (1) That you have been assisting the operations of the Communist Party of India, which along with its volunteer organisations has been declared unlawful by Government under section 16 of the Indian Criminal Law Amendment Act (Act XIV of 1908), and which has for its object commission of rioting with deadly weapons, robbery, dacoity, arson and murder and possession and use of arms and ammunition and explosives and thus acting in a manner prejudicial to the maintenance of public order and that it is necessary to prevent you from acting in such manner.”

The detention order alleged that the appellants had encouraged lawlessness and violence among various groups, thereby acting in a way that was harmful to public order. Specifically, it was claimed that the appellants had incited the peasants of Howrah District to commit unlawful acts, had tried to stir trouble among tramway workers and other laborers in Calcutta, and, in speeches delivered at the University Hall and other locations, had urged those listeners to resort to violent and unlawful conduct. The order further stated that, as workers of the Communist Party of India, the appellants had acted prejudicially to the maintenance of public order through these alleged activities.

On 16 July 1950, the Government of West Bengal issued additional grounds for detention to each appellant, describing them as "supplementary grounds" in continuation of the earlier reasons provided on 14 March 1950. The supplementary notice identified one appellant, who was the Secretary of the Bengal Chatkar Mazdoor Union, a member of the Executive Committee of the Federation of Mercantile Employees’ Union, and the honorary reporter of the newspaper Khabar, an organ of the Communist Party of India. The notice alleged that this individual had participated in a disruptive programme of the party, and, together with others, had led a procession at Howrah on 29 July 1948 that preached discontent against the Government, thereby acting in a manner prejudicial to public order. After receiving these notices, the appellants each filed a separate application for a writ of habeas corpus under section 491 of the Criminal Procedure Code. On 21 July 1950, the High Court issued a rule directing the Chief Secretary of the Government of West Bengal to respond to each petition. Shortly thereafter, on either 22 or 23 July 1950, a second set of supplementary grounds was communicated to the appellants. One example of these grounds stated that, at a meeting held on 19 March 1947 at the University Institute under the auspices of the Calcutta Tramway Workers’ Union, an appellant had threatened that any attempt to run tram cars on 20 March 1947 would invite disaster and that, should the authorities resume tram service, he and his associates would not hesitate to remove tram lines and cut the wires. Another ground alleged that, on 13 June 1948, an appellant had presided over a meeting of the Students’ Federation, which was controlled by the Communist Party of India, and had delivered a speech calling for the withdrawal of the ban on the Communist Party of India and its publication Swadhinta. After considering all of the material presented, the High Court rejected the habeas corpus petitions of the appellants. Consequently, the appellants appealed the decision to the higher court.

In the High Court, the appellants initially contended that the communication of the grounds dated fourteen March 1950 did not satisfy the requirement of article twenty-two, clause five of the Constitution because those grounds were not communicated “as soon as may be.” The High Court rejected this contention, holding that the communication complied with the statutory procedure. The present Court concurs with the High Court and finds no failure to act in accordance with article twenty-two, clause five when the authorities furnished the grounds on fourteen March 1950. Under the Bengal Criminal Law Amendment Act, nineteen-thirty, a very large number of persons were detained, and the validity of that Act was being challenged in the High Court, with a judgment expected toward the end of February 1950. The Preventive Detention Act, nineteen-fifty, was passed by Parliament in the last week of February 1950, and the detention orders for all those detainees were served on twenty-six February 1950. Because the Provincial Government suddenly had to deal with a large number of cases on a single day, the Court is unable to accept the appellants’ argument that the authorities failed to comply with the constitutional requirement. The appellants further urged that there had been non-compliance with the procedure laid down in article twenty-two, clause five and section seven of the Preventive Detention Act in the manner in which grounds were supplied, thereby depriving them of the earliest opportunity to make a representation, a right expressly conferred upon them. In the judgment delivered today in Case No. 22 of 1950 (1) the Court discussed in detail the two rights created under article twenty-two, clause five, and it must now apply those principles to the facts of this appeal.

When the authorities transmitted a second communication dated sixteen July 1950, they described it as “in continuation of the grounds already furnished” and as the “supplementary grounds for your detention.” Relying on this wording, the appellants argued that these were additional grounds furnished after the initial communication and that consequently the procedure prescribed under article twenty-two, clause five had not been observed. They further submitted that the duty to communicate grounds “as soon as may be” was absolute, and that the grounds must be before the Provincial Government before it can determine the necessity of making a detention order. If, on twenty-six February 1950, the authorities possessed only the grounds communicated on fourteen March, they could not rely on additional grounds set out in the second communication four months later. The appellants also contended that the very fact of this second communication demonstrated that the authorities were not satisfied with the original grounds and had subsequently introduced supplementary grounds as an afterthought.

In this case the Court observed that the suggestion the authorities were not satisfied with the original grounds and therefore introduced the later communication as an after-thought could not be accepted. The Court explained that labeling the second communication as “supplementary grounds” does not automatically convert its contents into new or additional grounds. The Court referred to its earlier judgment in Case No. 92 of 1950 and examined the substance of the later notice. It found that the later communication merely supplied further details relating to the two heads of grounds that had already been set out on 14 March 1950 concerning the appellant’s activities. Consequently, the Court held that these details could not be treated as fresh grounds and concurred with the High Court that they were not new. The Court stressed that the effect of the communication must be determined by reading the entire document, not solely its introductory words. The argument that the authorities were unsatisfied with the original grounds and therefore issued the supplemental notice was deemed unsound, because the later details do not necessarily indicate that the authorities lacked that knowledge on 14 March. Likewise, the claim that the notice of 16 July 1950 was not made “as soon as may be” was rejected, with reference to the principles laid down in Case No. 22 of 1950. The Court noted that each case must be examined on its facts, and if a detainee alleges a breach of the procedure prescribed in Article 22(5), the detaining authority must produce material to rebut that allegation. The High Court had found no violation of the procedural requirement, and the Court saw no reason to depart from that conclusion.

The Court then turned to the contention that the grounds were so vague that they could not be regarded as grounds at all and consequently could not satisfy the authority. Relying again on its judgment in Case No. 22 of 1950, the Court declined to add anything further to the earlier reasoning. It held that “vague grounds” do not occupy the same position as “irrelevant grounds”. An irrelevant ground has no connection with the satisfaction of the Provincial Government that justifies the detention order. The Court also refused to accept the argument that vagueness, coupled with the impossibility of making a representation, would preclude the authority’s satisfaction required under Section 3 of the Preventive Detention Act. The Court indicated that this argument conflates two distinct inquiries: the sufficiency of the grounds, which gives rise to the authority’s satisfaction, and the adequacy of the grounds to enable the detainee to make a representation. While the courts may assess whether the grounds allow an early opportunity for representation, the quality and characteristics of the grounds for that purpose need not be identical to those required for the authority’s subjective satisfaction. Hence, the Court could not accept the contention that because the grounds were vague they could not also satisfy the authority.

In this case, the Court observed that whether the Provincial Government has satisfied the statutory requirement is not a question for judicial scrutiny. The Court explained that it may examine only whether the grounds provided to the detained person are sufficient to allow that person the earliest opportunity to make a representation, and that this examination must be confined to that specific aspect. Consequently, the Court rejected the argument that the same standard of quality and characteristic of the grounds should be applied both to the adequacy of the grounds for representation and to the subjective satisfaction of the authority. The Court noted that satisfaction may vary from person to person even when the same grounds are considered, and that determining such satisfaction is beyond the Court’s remit as indicated by the language of the Act. However, the Court affirmed that the second limb of the enquiry, concerning whether the authority is subjectively satisfied, falls within the jurisdiction of the Court under article 22(5). The Court therefore declined to accept the proposition that grounds which are inadequate for making a representation cannot also be sufficient for the authority’s subjective satisfaction. Regarding the grounds communicated by the Government, the Court observed that the first ground was identical for all appellants while the second ground differed in most cases. The High Court had examined each appellant’s case in relation to the communication dated 14 March 1950 and had found those grounds not to be vague. The High Court further held that the procedural requirement to give the detained person the earliest opportunity to make a representation was not breached by the March communication or by the subsequent July communication. This issue was not pressed before the Court, and after hearing the appellant’s counsel, the Court saw no reason to depart from the High Court’s conclusion. Accordingly, the appeal was dismissed.

Justice Patanjali Sastri noted that this appeal was heard together with Case No. 22 of 1950 (The State of Bombay v. Atma Ram Sridhar Vaidya) because the central question was the same. Relying on the reasoning expressed in the judgment delivered in that case, Justice Sastri concluded that the present appeal could not succeed and therefore should be dismissed. Justice Das added that the same fundamental questions had been raised by one hundred detainees against an order of a Bench of the Calcutta High Court, as previously discussed. An additional contention raised in this appeal was that the issuance of a large number of fresh detention orders “overnight” suggested bad faith on the part of the authorities, on the premise that the authorities could not have examined each individual case in such a short time. Justice Das rejected this contention, stating that the authorities had already considered the suspected activities of each detainee and were satisfied with their assessments. He therefore found no basis to infer bad faith or a failure of duty on the part of the authorities.

In this case the Court observed that the authorities had decided, with the objective of preventing each detainee from committing a particular prejudicial act, that it was necessary to issue a detention order against each of them under the then-applicable local statutes. Because doubts had arisen regarding the validity of those local statutes and because, in the interval, the Preventive Detention Act had been enacted, the proper course was to make a fresh detention order under the new statute. The Court noted that the minds of the authorities had already been formed in favour of the expediency of detaining the individuals, and that, contrary to the contention advanced, no elaborate re-examination of each case was required at that stage. The Court further held that there was no failure of duty on the part of the authorities that could be said to demonstrate bad faith. Relying on reasoning set out in the earlier judgment of the same appeal, the Court found no evidence of mala fides on the part of the authorities and consequently concluded that the fundamental rights of the petitioners had not been infringed. For each detainee, besides the shared basis for detention, the Court identified one or more specific grounds that were sufficient to permit the detainee to make a representation. Accordingly, the issue of requiring supplementary particulars did not arise. The Court agreed with the conclusions of Justice Roxburgh, finding them correct and well-founded, and consequently ordered that the appeal be dismissed. The appeal was dismissed. The appellant was represented by counsel P.K. Chatterjee and the respondent by counsel P.K. Bose.