Naranjan Sigh Nathawan vs The State Of Punjab (and 13 other petitions)

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 25 January, 1952

Coram: M. Patanjali Sastri, Mehr Chand Mahajan, B.K. Mukherjea, N. Chandrasekhara Aiyar

In this case the petitioner, Naranjan Sigh Nathawan, challenged a detention order issued by the State of Punjab together with thirteen other petitions. The judgment was delivered on 25 January 1952 by the Supreme Court of India. The bench that heard the matter comprised Chief Justice M. Patanjali Sastri, Justice Mehr Chand Mahajan, Justice B.K. Mukherjea and Justice N. Chandrasekhara Aiyar. The official citation for the decision is 1952 AIR 106 and 1952 SCR 395, and the judgment is referenced in later reports as R 1966 SC1404 (8), D 1967 SC1797 (4), E 1969 SC 43 (9,10), R 1971 SC2197 (7), R 1974 SC 510 (3) and R 1990 SC1480 (99). The dispute concerned the validity of an order of preventive detention, the possibility of issuing a fresh order superseding a previously challenged order, the presence or absence of bad-faith on the part of the detaining authority, and the applicable test for legality in a habeas-corpus proceeding.

The headnote of the judgment explained that where the detaining authority acts without bad faith it may replace an earlier detention order that has been contested on purely formal grounds by issuing a new order that is free from defects and complies with the statutory requirements. It further stated that any allegation of bad faith must be examined in the context of the particular facts of each case. In habeas-corpus proceedings the Court must assess the legality of the detention at the time of the return of the order, rather than at the date the proceedings were instituted.

The judgment referred to earlier authorities for guidance, namely Basanta Chandra Ghose v King Emperor ([1945] F.C.R. 81), the unreported decision of Naranjan Singh v State of Punjab, and Makhan Singh Tarsikka v State of Punjab ([1952] SCR 368). The criminal jurisdiction of the Court was invoked by way of petitions numbered 513, 566, 568, 570, 591, 595, 596, 601, 616, 617, 623, 625, 631 and 632 of 1951, all filed under article 32 of the Constitution seeking writs in the nature of habeas corpus. The facts of each petition were recorded in the judgment.

Amicus curiae counsel Raghbir Singh appeared for the petitioners in petitions 513, 566, 568, 570, 595, 596, 609, 616, 617, 623, 625 and 631. A.S.R. Chari acted as amicus curiae for the petitioner in petition 591, while Shiv Charan Singh served as amicus curiae for the petitioner in petition 632. The State of Punjab was represented by the Advocate-General, S.M. Sikri, assisted by Jindra Lal.

The Court’s decision was delivered by Chief Justice Patanjali Sastri. The petition was presented under article 32 of the Constitution through the Superintendent of the Central Jail, Ambala, seeking a writ of habeas corpus for the release of the petitioner from custody. The petitioner had been arrested on 5 July 1950 and detained under an order issued by the District Magistrate of Amritsar, who exercised powers conferred by section 3 of the Preventive Detention Act, 1950. The grounds for detention had been served on the petitioner as required by the relevant provisions of the Act.

The Preventive Detention Act, 1950, was amended by the Preventive Detention (Amendment) Act, 1951, and the amendment became effective on 22 February 1951. After the amendment, the authorities issued a fresh detention order numbered 7853-ADSB on 17 May 1951. The order stated that the Governor of Punjab was satisfied that, in relation to a person identified as Naranjan Singh Nathawan, son of Lehna Singh of Chak Sikandar village in the Ramdas police station area of Amritsar district, it was necessary to prevent him from acting in a manner prejudicial to the security of the State. Accordingly, invoking the powers conferred by sub-section (1) of section 3 and section 4 of the Preventive Detention Act, 1950, as amended, the Governor directed that Nathawan be committed to the custody of the Inspector-General of Prisons, Punjab, and detained in any jail of the State until 31 March 1952, subject to conditions of maintenance, discipline and punishment as prescribed by the general order or the Punjab Detenu Rules, 1950. This order was served on Nathawan on 23 May 1951, but the authorities did not serve any written grounds in support of the order. Consequently, the petitioner filed a habeas corpus petition, contending that the order was illegal for two reasons: first, the grounds of detention communicated to him on 10 July 1950 were “quite vague, false and imaginary”; second, he had not been furnished with the grounds on which the fresh order of 17 May 1951 was based.

The petition was heard ex-parte on 12 November 1951, when the Court issued a rule nisi inviting the respondent to show cause why the petitioner should not be released, and scheduled a final hearing for 23 November 1951. In the interim, the State Government issued an order on 18 November 1951 revoking the detention order dated 17 May 1951. On the same day, the District Magistrate of Amritsar issued a new detention order against the petitioner under sections a and 4 of the amended Act; the grounds for this new order were served on the petitioner on 19 November 1951. In response, the petitioner filed a supplemental petition on 28 November 1951, challenging the validity of the latest order on the ground that it was merely a device to defeat the habeas corpus petition for which a rule had already been issued. Additionally, the petitioner raised a further ground of attack on the earlier order of 17 May 1951, asserting that it illegally fixed the period of detention until 31 March 1952 without first obtaining the opinion of the Advisory Board as required by section 11 of the amended Act. This argument was based on a view previously expressed by the Court.

In its answer to the petitioner's return to the rule-showing cause, the Under-Secretary (Home) to the Government set out the reasons why a fresh detention order dated 18 November 1951 had been issued. The Government first explained that the petitioner's case had been referred to the Advisory Board created under section 8 of the amended Act and that the Board, on 30 May 1951, had reported that there was sufficient cause to detain the petitioner. The affidavit then stated that the Government had been advised that orders made under section 11 of the Preventive Detention Act, 1950, as amended by the Preventive Detention (Amendment) Act, 1951, but implemented through orders under section 3 of that Act, should be accompanied by a statement of grounds for detention. Because this requirement had not been complied with in most cases, the Government was warned that the detentions could be challenged. The Government was further informed of other technical defects that might render the detention of various prisoners unsustainable. Consequently, the Government resolved that every detention should be re-examined by the District Magistrates concerned. It instructed the Magistrates to review each case, to apply their minds afresh, and to ensure that a rational basis existed for any continued detention. The Magistrates were directed to report clearly, in each instance, whether they considered further detention justified. The Government also undertook its own review of certain cases. As a result, all cases, including that of the petitioner, were re-examined, and the District Magistrate for Amritsar again found that it was necessary to detain the petitioner in order to prevent him from acting in a manner prejudicial to the security of the State and the maintenance of public order. The affidavit concluded by stating that the petitioner was now detained under the order of the District Magistrate, Amritsar.

The original petition and the supplementary petition were subsequently placed for hearing before the Hon Judges Fazl Ali and Vivian Bose on 17 December 1951. On behalf of the petitioner, reliance was placed upon certain observations made in an unreported decision of this Court in Petition No. 334 of 1951 (Naranjan Singh v. The State of Punjab). It was contended that, in view of those observations and the provisions of Part III of the Constitution, the earlier decision in Basant Chandra Ghose v. King Emperor (1) relied upon by the respondent was no longer good law. The learned Judges considered that the issues raised required the consideration of a Constitution bench. Accordingly, the matter was transferred to the present bench for determination.

The respondent stated that the petitioner’s case, together with his objection to the detention order dated 17 May 1951, was placed before the Advisory Board for consideration, and that the Board reported on 30 May 1951 that, in its opinion, there was sufficient cause to detain the petitioner. It was further asserted that, on the basis of that report, the Government decided to keep the petitioner detained until 31 March 1952. However, the respondent explained that while a properly framed order under section 11 should have “confirmed” the original detention order and “continued” the detention for a specified period, the order of 17 May 1951 had been issued under a misapprehension as an initial order under section 3 of the amended Act, on the same grounds as before and without any fresh communication to the petitioner. To avoid arguments based on possible defects of a technical and formal character, the order was revoked under section 13, and after a review of the case by the District Magistrate, a fresh order of detention was issued under section 3 on 18 November 1951. This fresh order was followed by a formal communication of the same grounds as before, because there could be no new grounds; the petitioner had, throughout, remained in detention. The Advocate-General of Punjab contended that the decision reported in [1945] F.C.R. 81 provided clear authority supporting the validity of the aforesaid order. On essentially similar facts, the Court had laid down two propositions that were applicable here. First, where an earlier order of detention is defective merely on formal grounds, nothing precludes a proper order of detention being based on the pre-existing grounds themselves, especially in cases where the sufficiency of the grounds is not examinable by the courts. Second, if, at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot order his release merely on the ground that at some prior stage there was no valid cause for detention. The question, therefore, was not whether the later order validated the earlier detention but whether, in the face of the later valid order, the Court could direct the release of the petitioner. The learned Judges observed that the analogy of civil proceedings, in which the rights of parties are ordinarily ascertained as of the date of institution of the proceedings, has no application to habeas-corpus proceedings, where the Court is concerned solely with whether the applicant is being lawfully detained. The petitioner’s counsel conceded that the correctness of the second proposition could not be challenged, but took exception to the first proposition, arguing that it was no longer tenable after the Constitution came into force. It was urged that article 22 lays down the procedure to be followed in cases of preventive detention and

It was observed that the procedure prescribed by law had to be followed strictly because a court could grant release only when it found a technical or formal defect in the detention order. A long series of decisions had held that judicial review in preventive detention cases was essentially limited to an inquiry as to whether the legal requirements had been met with exactness. The Court affirmed that this principle was correct and referred to the recent case of Makhan Singh Tarsikka v. The State of Punjab (Petition No. 308 of 1951)(1), where it was stated that “it cannot too often be emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected.” The Court noted that this rule applied with the same force to preventive-detention cases that arose before the Constitution came into force, and it found no substantive difference created by the Constitution on this point. The position had become clearer after the enactment of section 13 of the Act, which expressly allowed a detention order to be revoked or altered at any time and clarified that such revocation did not prevent the making of a fresh detention order under section 3 against the same individual. Once it was accepted that, in habeas-corpus proceedings, the Court must examine the legality of the detention at the time of the return rather than at the date the petition was filed, it was difficult to sustain a view—absent proof of bad faith—that the detaining authority could not replace an earlier order, which had been challenged as unlawful, with a new order that complied fully with statutory requirements. Regarding the observations made in Naranjan Singh’s case, the Court explained that it did not regard those remarks as establishing a general rule that a fresh detention order could not be issued after a petition challenging an earlier order had been filed. The learned Judges appeared to have inferred from the facts of that case that the later order was, since reported as [1952] S.C.R. 368, not made in good faith after being satisfied that the petitioner’s detention remained necessary, but rather “obviously to defeat the present petition.” The Court said that if a claim of bad faith were raised, it would have to be examined according to the specific circumstances of each case, and that observations in a single case could not be taken as binding precedent for other matters. Consequently, the Court remitted the case for further hearing and directed that this order would also govern the other petitions raising the same question. Petitions were therefore remitted. Agent for the respondent: P.A. Mehta.