Abdul Jabar Butt vs State Of Jammu and Kashmir

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

Court: Supreme Court of India

Case Number: Petition Nos. 173 and 174 of 1956

Decision Date: 13 November 1956

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, S.K. Das, Sudhi Ranjan Das

In this case, the Court recorded that the petitioners, Abdul Jabar Butt and another individual, were detained under section 3(1) of the Jammu and Kashmir Preventive Detention Act on 26 April 1956 on the ground that their conduct might be prejudicial to the security of the State. The petitioners were not informed of any grounds of detention under section 8(1) of the Act, and no declaration was issued under the proviso to that section at the time of detention.

The petitioners subsequently filed applications before the High Court invoking section 491 of the Code of Criminal Procedure. While those applications were pending, the Government, on 30 June 1956, issued declarations under the proviso stating that it was against the public interest to disclose to the petitioners the grounds on which their detention orders were based. The High Court dismissed the applications on 28 July 1956.

After the High Court’s decision, the Government reviewed the detention orders in accordance with section 14(2) of the Act, consulting a person nominated for that purpose on 4 June 1956. Satisfied that the petitioners should continue to be detained, the Government issued orders under section 14 on 26 September 1956, confirming the continuation of detention.

The legal issue before the Supreme Court was whether the declarations made on 30 June 1956 complied with the time limit prescribed by section 8(1) of the Preventive Detention Act for communicating the grounds of detention, and, if the time limit was not complied with, whether the detention of the petitioners was lawful.

The Court held that the phrase “as soon as may be” in sub‑section (1) of section 8 does not prescribe a fixed number of days but requires the Government to communicate the grounds within a reasonable time, understood as the shortest possible period from the date of detention. The Court relied on the decision in King’s Old Country, Ltd. v. Liquid Corbonic Can. Corpn. Ltd. (1942) 2 W.W.R. 603, and referenced Ujagar Singh v. State of the Punjab [1952] S.C.R. 756 and Keshab Nilkanth Joglekay v. Commissioner of Police, Greater Bombay, Petition No. 602 of 1956 decided on 17 September 1956, to support this interpretation. The Court noted that although precise calculation of the time in hours, days, or months may be difficult, the requirement is that the communication be made within a period that is reasonably convenient and requisite under the circumstances.

The Court explained that the statute permitted the measurement of the prescribed period in units such as hours, days or months. Nevertheless, the essential task was to examine, based on the facts and circumstances of each individual case, whether the act had been completed within a time that was reasonably convenient or reasonably required. The proviso to the sub‑section made clear that the Government’s power to exempt certain detainees by issuing the declaration had to be exercised before the expiry. The period that was fixed for communicating the grounds of detention would then expire, and no further extension was permitted. The earlier decision in Hissam‑Ud‑Din Bandy and Others v. The State, A.I.R. 1935 J.& K. 7, was therefore overruled. Consequently, any failure to make the declaration within that prescribed period meant that the detention could not be said to have complied with the procedural safeguards mandated by the Act. Such non‑compliance would defeat the statutory requirement that the detainee be informed of the reasons for his detention within a reasonable time, a condition rooted in the protection of personal liberty. The Court emphasized that the requirement was not a mere formality but a substantive guarantee designed to ensure that the government’s power of detention was exercised with transparency and accountability.

In the present matters, the affidavits filed on behalf of the Government did not disclose any particular circumstance that would justify delaying the required declarations. The documents also failed to show why the declarations could not have been made before the lapse of two months from the dates on which the detention orders became effective. Accordingly, the Court held that the detainees had been deprived of their liberty in a manner not in accordance with the procedure established by the Act. The Court noted that the procedure embodied the fundamental right guaranteed under Article 22(5) of the Constitution of India. It demands that a detained person be informed of the grounds of detention within a reasonable time and thereby protect his liberty. On that basis, the Court directed that the detainees be released immediately, without any further delay, and that they be restored to their freedom at once. The judgment concerned original jurisdiction petitions numbered 173 and 174 of 1956, filed under Article 32 of the Constitution for a writ of habeas corpus. Amicus curiae assistance was provided by J. B. Dadachanji, who appeared on behalf of the petitioners to aid the Court in understanding the factual background. The respondent was represented by the Attorney‑General for India, M. C. Setalvad, together with counsel Porus A. Mehta and R. H. Dhebar, who argued on behalf of the State. The judgment was delivered on 13 November 1956 by Justice D. A. S. C. J., who authored the opinion of the Court. The two petitions raised a common question of interpretation of section 8 of the Jammu and Kashmir Preventive Detention Act, 2011, referred to as Act IV of (Sambat) 2011. Both petitions were filed under Article 32 of the Constitution, alleging that the petitioners were wrongfully detained under the Act and seeking their immediate release. The Jammu and Kashmir Government had, on 26 April 1956, issued two separate orders under sub‑section (1) of section 3 of the Act, ordering the detention of each petitioner. Each order stated that the Government was satisfied that, in order to prevent the petitioner from acting in a manner prejudicial to the security of the State, detention was necessary. No grounds were supplied to either petitioner, nor was any declaration made under the proviso to section 8(1) of the Act for a considerable period. Consequently, each petitioner applied to the High Court of Jammu and Kashmir under section 491 of the Code of Criminal Procedure for a writ of habeas corpus. When the applications were pending, the Government finally made a declaration under the proviso on 30 June 1956, stating that it would be against public interest to communicate the grounds of detention. The High Court subsequently dismissed both petitions on 28 July 1956, finding no sufficient ground to grant the writ of habeas corpus.

During the pendency of the habeas corpus applications, the Government issued a declaration on 30 June 1956, more than two months after the original detention orders. The declaration, made under the proviso to section 8(1) of the Act, stated that it would be contrary to the public interest to disclose to the detainees the grounds on which their detention orders had been made. Subsequently, on 28 July 1956, the High Court dismissed both petitions. It later emerged that each detainee’s case had been examined by the Government on 4 June 1956 pursuant to subsection (2) of section 14 of the Act, in consultation with a person nominated for that purpose, and the Government concluded that the detainees should remain in detention. Accordingly, on 26 September 1956, exercising powers conferred by section 14 of the Act, the Government issued two separate orders directing that the two detainees continue to be detained. In the interim, on 19 September 1956, the two present applications were filed before the Supreme Court.

The matters before the Supreme Court raised two questions: whether the declaration under the proviso to section 8(1) of the Act had been made within the period prescribed by that provision for communicating the grounds of detention to the detainees, and if the declaration was untimely, whether the detention thereafter became illegal. While hearing the petitions on 20 October 1956, the Division Bench noted a Full Bench decision of the Jammu and Kashmir High Court in Hissam‑Ud‑Din Bandy and Others v. The State, wherein it was held that although it is undesirable for a detainee to remain in suspense, the proviso does not fix a specific time limit for making a declaration. Consequently, a delay beyond a reasonable time does not, by itself, invalidate a detention that is pursued for the security of the State. Because the Full Bench decision required consideration, the Division Bench decided to refer the petitions to a larger Bench for final determination. The Court also observed that, subject to certain exceptions and modifications, several provisions of the Constitution of India had been extended to Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Order, 1954, made by the President under clause (1) of article 370. In particular, article 35A introduced a new clause stipulating that any preventive‑detention law enacted by the Jammu and Kashmir legislature, whether before or after the commencement of the 1954 Order, would be void if inconsistent with the provisions of Part III of the Constitution, except that such inconsistency would cease to have effect after five years from the Order’s commencement, except with respect to acts done or omitted before that expiration.

The provision inserted by the Constitution (Application to Jammu and Kashmir) Order, 1954 stated that “(c) no law with respect to preventive detention made by the legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.” Consequently, the Court observed that the detention of the petitioners could not be challenged on the basis that the Act was inconsistent with any fundamental right guaranteed under Part III of the Constitution for a period of five years from the date of the President’s order. In other words, the legality of the petitioners’ detention had to be examined by giving a true construction to the provisions of the Act itself. Turning to the Act, the Court examined section 3, which conferred on the Government and on certain officers specifically named therein the authority to issue a detention order against particular persons. The section required that, before such an order could be made, the Government had to be satisfied that it was necessary to detain the person in order to prevent him from acting in any manner prejudicial to one or more of the enumerated objects. The objects listed in the provision were fourfold: (i) the security of the State; (ii) the maintenance of public order; (iii) the maintenance of loyalty and discipline among the members of the police forces of the State; and (iv) the maintenance of supplies and services essential to the community. The provision also contained a clause (b) of sub‑section 1 relating to a foreigner, which the Court noted was not material for the present considerations. The Court then explained that once a detention order was made under section 3, the provisions of section 8 became applicable. A true construction of section 8 was essential to the decision of the petitions, and the section read as follows: “8. (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government: Provided that nothing contained in this subsection shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State if the Government by order issued in this behalf declares that it would be against the public interest to communicate to him the grounds on which the detention order has been made. (2) Nothing in sub‑section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.” The Court observed that sub‑section 1, without the proviso, essentially reproduced the language of clause (5) of article 22 of the Constitution. Accordingly, sub‑section 1 imposed two duties on the Government: the duty to communicate the grounds of the detention to the detainee as soon as possible, and the duty to give the detainee the earliest opportunity to make a representation against the order to the Government.

In this matter the Court explained that the statutory duties imposed by sub‑section (1) require the authority to (i) communicate to the detainee the grounds on which the detention order was made and (ii) afford the detainee the earliest opportunity to make a representation against the order to the Government. The first duty is to be performed “as soon as may be”. The Court observed that the phrase “as soon as may be” necessarily commences from the moment the detention in pursuance of the order begins. The remaining issue, therefore, was to determine the length of time that the words “as soon as may be” denote. The observations of Justice Dysant in King’s Old Country, Ltd. v. Liquid Carbonic Can. Corp., Ltd., as recorded in Stroud’s Judicial Dictionary, third edition, volume 1, page 200, were considered relevant. Justice Dysant explained that to do something “as soon as possible” means to do it within a reasonable time, with an intention to act in the shortest possible time. Accordingly, to communicate the grounds “as soon as may be” may be understood to mean that the communication must be made within a reasonable time, with the understanding that it should be the shortest time practicable. The Court then turned to the question of what constitutes a reasonable or the shortest possible time. The expression “as soon as may be” had previously been examined by this Court in Ujagar Singh v. State of the Punjab (1). On pages 761‑762 the Court held that the expression conveys a requirement of “reasonable despatch”, adding that what is reasonable depends upon the facts of each individual case and that no fixed arbitrary time limit could be imposed. In the later case of Keshav Nilakanth Joglekar v. Commissioner of Police, Greater Bombay and 2 Others (2), the Court considered the word “forthwith” occurring in section 3(3) of the Indian Preventive Detention Act, 1950, and observed that “forthwith” is more peremptory than “as soon as may be”. The Court therefore described the period allowed to the authority for communicating the grounds, as dictated by “as soon as may be”, as being “reasonably convenient” or “reasonably requisite”. Whenever the question of reasonableness arises in measuring the period, the Court must examine the specific circumstances of the case before it. It may not always be possible to quantify the period precisely in hours, days, or months; nevertheless, by looking at the facts, the Court can determine whether the communication was made within the time that was reasonably convenient or requisite, that is, whether it satisfied the requirement of being done “as soon as may be”.

It was not contested that sub‑section (1) of the relevant provision expressly set a time limit for communicating the grounds of detention, and that this period commenced on the date on which the detention order became effective. The judgment cited the authority of the 1952 law report at page 756 and also referred to Supreme Court Petition No 102 of 1956, decided on 17 September 1956, to support this proposition. However, the Court observed that the proviso attached to sub‑section (1) rendered the entire sub‑section inapplicable in specific situations. Those situations were: first, where a person was detained with the purpose of preventing him from acting in any manner prejudicial to the security of the State; and second, where the Government, by an order issued for that purpose, declared that it would be against the public interest to disclose to the detainee the grounds on which the detention order had been made.

The learned Attorney‑General argued that the proviso did not contain any stipulated time within which the Government must exercise this power of non‑communication, meaning that it did not prescribe a deadline for making the declaration. He further contended that there was no justification for importing the time limit prescribed in sub‑section (1) into the proviso. The Attorney‑General pointed out that the Full Bench of the Jammu and Kashmir High Court had reached a similar conclusion in the case previously mentioned. He urged that the omission of a time limit in the proviso was intentional and consistent with the overall scheme of the Act.

He then explained that the purpose of communicating the grounds was to give the detainee an opportunity to make a representation to the Government against the detention order. Referring to section 10 of the Act, he noted that the Government was required to place before an Advisory Board, constituted under section 9, the grounds of the order and any representation made by the detainee within six weeks of the date of detention. In cases where the order had been issued by an officer, the report made by that officer under sub‑section (3) of section 3 was also to be placed before the Board. He further highlighted that the requirement of section 10 was subject to the provisions of section 14.

Turning to section 14, the Attorney‑General explained that, notwithstanding any other provision of the Act, a person detained under a detention order of any class or circumstance specified in the Act could be detained or have his detention continued without obtaining the Advisory Board’s opinion for a period longer than three months but not exceeding five years from the date of detention. He identified two classes of persons who could be detained without the Board’s opinion: those detained to prevent them from acting in any manner prejudicial to (i) the security of the State and (ii) the maizitenance of public order.

In this case the Court observed that persons who fall within the two classes mentioned earlier are, according to sub‑section (2) of section 14, required to have their detention reviewed within six months of the date of detention and thereafter at regular intervals of every month if the detention continues. Such reviews must be conducted in consultation with a person who possesses the qualifications specified in the statute and who may be nominated for that purpose by the Government. Referring to the proviso to sub‑section (1) of section 8, the Attorney‑General pointed out that the declaration contemplated by that proviso may be issued only where a person is detained with a view to preventing him from acting in any manner prejudicial to the security of the State. By virtue of section 14, the case of such a person does not go before the Advisory Board; instead it must be reviewed in consultation with the Government‑nominated person under section 14. The Attorney‑General therefore argued that it would be sufficient for the grounds of detention to be communicated to that detainee within six months of the date of detention, the point at which his case is to be reviewed under sub‑section (2) of section 14. The Court could not accept this line of reasoning. It first noted that a fundamental rule of statutory construction requires a proviso to be read in relation to the main provision to which it is attached, and that the proviso must therefore be construed harmoniously with sub‑section (1) of section 8. The Court explained that immediately after a detention order is made, sub‑section (1) of section 8 becomes operative, obliging the authority to communicate the grounds of detention “as soon as may be.” If the grounds are not communicated within the period indicated by that phrase, the detainee is deprived of his statutory right under sub‑section (1) and the detention becomes illegal because it is not in accordance with the procedure prescribed by law. To avert this undesirable result in certain specified cases, the proviso authorises the Government to issue a declaration that completely excludes the operation of sub‑section (1). Accordingly, the power to issue such a declaration must be exercised before the unwanted result of sub‑section (1) can arise. The Court further recalled that a detention order may be issued under section 3(1)(a) of the Act against a person with a view to preventing him from acting in any manner prejudicial to any of the four objects enumerated therein. As soon as an order is made under section 3(1)(a), the authority making the order is, by virtue of section 8(1), placed under an obligation to communicate the grounds of detention “as soon as may be.” If no declaration is made under the proviso, section 8(1) will operate in the case of every detainee, irrespective of which of the four objects is relied upon.

In this case, the Court observed that the proviso permits the Government to exempt only a particular class of detainees from the operation of sub‑section (1). Consequently, every detainee who is not covered by that exemption must be given the grounds for detention, and the statute does not grant the Government authority to bar sub‑section (1) from applying to those individuals. The Court noted that the statutory language allows the Government to withhold the operation of sub‑section (1) solely in situations where a person has been detained to prevent him from engaging in activities that are prejudicial to the security of the State, and only if the Government makes a declaration that disclosing the grounds would be against the public interest. Accordingly, even where a person’s detention is based on alleged activities harmful to State security, the Government cannot invoke the exemption of sub‑section (1) unless it is prepared to declare, and actually declares, that public interest would be compromised by communicating the grounds of detention. Therefore, detainees whose detention is predicated on activities prejudicial to State security, but for whom the Government either cannot or chooses not to make such a declaration, remain subject to sub‑section (1). Those individuals, like detainees falling within the other three categories, are consequently entitled to receive the grounds of their detention as soon as may be. Because they remain governed by sub‑section (1), the Court held that it is clearly incumbent upon the Government to decide within the period prescribed by sub‑section (1) whether to issue the required declaration; failure to do so would seriously prejudice those detainees. The Court illustrated a hypothetical: if the Government fails to make a declaration for persons in that class within the prescribed time, and later decides that it would not be against the public interest to disclose the grounds, the earlier absence of a declaration under the proviso would result in those persons being deprived of the valuable right to have the grounds communicated to them as soon as may be and of obtaining the earliest opportunity to make a representation. In light of the fundamental liberty of the individual, the Court said that the construction must avoid such an undesirable outcome. The Court further examined section 14, which provides that a person falling within the two categories mentioned therein may be detained or may continue in detention without obtaining the opinion of an Advisory Board for a period exceeding three months. The Court observed that nothing in the statute suggests that all persons within those two categories must categorically be excluded from referral to the Advisory Board, but rather that they must be reviewed under sub‑section (2). The discussion then turned to persons against whom orders of

Detention orders that are made to prevent a person from acting in any manner prejudicial to the security of the State, and for which the Government does not consider that it would be against the public interest to disclose the grounds of detention, entitle the detained person, under subsection (1), to receive those grounds as soon as may be. Nothing prevents the Government from forwarding the detainee’s case, together with the grounds and any representations made, to the Advisory Board under section 10 of the Act. Consequently, for such persons the grounds must be supplied as soon as may be pursuant to subsection (1) and cannot be deferred for the six‑month period mentioned in section 14. The review contemplated by subsection (2) of section 14 is to be conducted within six months from the date of detention; there is no justification for holding that the review must invariably occur on the last day of that six‑month period. Regarding a person whose activities are prejudicial to the security of the State but for whom the Government does not deem it appropriate to make any declaration under the proviso, that person is still entitled to have the grounds communicated as soon as may be and may immediately present a cogent and convincing representation to the Government, which may induce the Government to release him forthwith without waiting until the end of the six‑month period. The Court sees no difficulty in construing the proviso as implying that the time for making the declaration should be co‑terminous with the time fixed for communicating the grounds under subsection (1). When the detaining authority issues a detention order, the preamble to that order specifies the reason for the order, namely whether it is made to prevent the detainee from acting in any manner prejudicial to one of the four objects enumerated in section 3(1)(a). If the Government determines that a detention order is issued against a particular individual on account of his activities being prejudicial to the security of the State, there is no reason why the Government should not, at the same time or as soon as may be thereafter, decide whether communicating the grounds would be against the public interest. In the Court’s opinion, the authority vested in the Government to make a declaration under the proviso must be exercised before the expiry of the period indicated by the phrase “as soon as may be” occurring in subsection (1). Such an interpretation ensures the harmonious operation of sections 8, 10 and 14. These aspects of the matter have not been specifically raised to the

In examining the case, the Court took note of the notice that had been issued by the Full Bench of the Jammu and Kashmir High Court and stated that, in its opinion, the decision reflected in that notice could not be accepted as correct. The Court further observed that the affidavits filed by the respondent did not contain any particular circumstance or reason that would justify the making of the declarations earlier than 30 June 1956, which was the actual date on which those declarations were issued. Because no such justification was presented, the Court concluded, for the reasons set out in the preceding discussion, that the detention of the petitioners had become illegal. As a result, the petitioners were deprived of their liberty in a manner that was not in accordance with the procedure established by the Act, a procedure that embodies the fundamental right guaranteed under Article 22(5) of the Constitution. On the basis of these findings, the Court held that the petitioners were entitled to the relief they had prayed for. Consequently, the Court allowed both petitions, directed that the petitioners be released immediately and without any further conditions, and recorded that the applications were allowed.