Lawrence Joachim Joseph D vs The State Of Bombay

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 126 of 1955

Decision Date: 24 April 1956

Coram: B. Jagannadhadas, Bhuvneshwar P. Sinha, Syed Jaffer Imam

In the matter of Lawrence Joachim Joseph D versus The State of Bombay, the Supreme Court of India delivered its judgment on 24 April 1956. The opinion was authored by Justice B Jagannadhadas, and the bench was composed of Justices B Jagannadhadas, Bhuvneshwar P Sinha and Syed Jaffer Imam. The petitioner, identified as Lawrence Joachim Joseph D’Souza, challenged a detention order issued by the Government of Bombay. The respondent was the State of Bombay. The case is reported in the 1956 volume of the All India Reporter at page 531 and in the Supreme Court Reports at page 382. The central issue concerned the Preventive Detention Act, specifically whether the grounds of detention were unreasonably vague because factual details were withheld from the public in the interest of national security, and whether such alleged vagueness could invalidate the order. The petition also raised a question of privilege under article 22(6) of the Constitution, and whether any claim of mala fides could be made against the authorities that effected the detention.

The appellant had been detained under section 3(1)(a)(i) of the Preventive Detention Act, Act IV of 1950. According to the order, the appellant was alleged to have received financial assistance from Portuguese authorities and to have been engaged in espionage on their behalf, employing underground operatives, and to have collected intelligence concerning security measures along the border, which he purportedly transmitted to the Portuguese. The appellant did not request further particulars of the grounds from the Government. The Court held that, given the serious nature of the allegations involving espionage, the grounds could not be characterized as vague. The Court further observed that the detainee’s right to be furnished with particulars is subject to the limitation imposed by article 22(6); consequently, even if some facts are withheld for public interest, the detention order remains valid and cannot be set aside on the basis of vagueness alone. The requirement to disclose the claim of privilege under article 22(6) arises only when the detainee specifically asks for the particulars. Since the appellant made no such request, the non‑communication of the privileged information did not impair his constitutional right to make a representation. The Court also clarified that an allegation of mala fides must be directed against the detaining authority, not against the police, and found the claim of mala fides untenable in view of the nature of the grounds and the alleged activities.

The judgment fell within the criminal appellate jurisdiction, being Criminal Appeal No. 126 of 1955, filed by special leave against the Bombay High Court’s order dated 9 August 1955 in Criminal Application No. 726 of 1955. Counsel for the appellant included M R Parpia, J B Dadachanji and S N Andley, while the respondent was represented by M C Setalvad, Attorney‑General for India, together with B Sen and R H Dhebar. The Court’s opinion was delivered by Justice Jagannadhadas, confirming that the appeal was against the High Court’s judgment.

The High Court of Bombay had dismissed an application that was made to it under article 226 of the Constitution, and the present proceedings consider whether the order of detention issued by the Government of Bombay on 8 June 1955 is legally valid. The order of detention was directed against the respondent, who is identified as Shri Lawrence Joachim Joseph DeSouza. He has practiced as an advocate of the High Court of Bombay for approximately thirty years. His professional background also includes service in the Indian Air Force as an emergency commissioned officer from 1943 to 1948, followed by an extension of four additional years until he reached the age of fifty‑five. In addition to his legal career, the respondent has shown an interest in journalism and public affairs. He has stated on his own behalf that he is concerned about the political future of Goa, that he opposes any attempts to intimidate Indian residents of Goan origin by other political groups, and that he has expressed these views openly in his journalistic writings. On 9 June 1955, the respondent was arrested and has remained in detention since that date pursuant to the impugned order. The order, dated 8 June 1955 and issued by the Political and Services Department of the Secretariat, Bombay, reads as follows: “No. P. D. A. 1555A. Political and Services Department, Secretariat, Bombay, 8 June 1955. ORDER. Whereas the Government of Bombay is satisfied with respect to the person known as Shri Lawrence Joachim Joseph DeSouza of Bombay, that with a view to preventing him from acting in any manner prejudicial to the relations of India with the Portuguese Government and to the Security of India, it is necessary to make the following Order: Now, therefore, in exercise of the powers conferred by sub‑clause (1) of clause (a) of sub‑section (1) of section 3 of the Preventive Detention Act, 1950 (Act IV of 1950) the Government of Bombay is pleased to direct that Shri Lawrence Joachim Joseph DeSouza of Bombay be detained. By Order and in the name of the Governor of Bombay. Under Secretary to the Government of Bombay. Political and Services Department.” In accordance with section 7 of the Preventive Detention Act, 1950 (hereinafter referred to as “the Act”), the grounds of detention, also dated 8 June 1955, were served on the respondent together with the detention order. The respondent challenges the validity of the order on four principal grounds. First, he alleges that the order was passed mala fide, intended to suppress his freedom of speech and his professional activities concerning Goan affairs because of his known views. Second, he contends that the detaining authority, in exercising its power, failed to consider whether the legitimate objects of detention existed. Third, he asserts that the grounds of detention are vague. Fourth, he argues that the State’s claim that no particulars of the grounds could be furnished in public interest is untenable and, in any event, is made mala fide. The last two points are pleaded not only as independent objections but also as matters that reinforce the first two. Accordingly, the challenge to the order’s validity is founded on the allegations of mala fides and of the detaining authority’s failure to apply its mind to the legitimate purposes of detention.

The parties have repeatedly urged the Court with great insistence to consider the background events that they claim are relevant to the present dispute. Those background events give rise to factual questions that the High Court had already examined in detail, and therefore it is sufficient to summarise them in broad outline. First, on 24 August 1954 the police conducted a sudden search at the appellant’s premises on the allegation that he possessed illicit liquor. No liquor was discovered, but the police, invoking that allegation as a pretext, seized a large collection of the appellant’s documents, papers, printed material and also his typewriter. On the same day the police also searched the appellant’s residence at Mahim and found nothing. Immediately after these searches the appellant was taken into illegal police custody where he was interrogated, physically assaulted and threatened. The appellant challenged this high‑handed police action through a writ petition in the High Court. In the proceedings the police officers filed affidavits that effectively admitted the appellant’s allegations concerning the seizure of papers and other material. The State was unable to justify the police’s conduct, and consequently the High Court, on 3 November 1954, ordered the immediate return of all seized papers and articles. Despite that order, the seized material was not returned until about 21 January 1955. Second, when Joaquim Carlos, a Portuguese soldier attached to Goan forces, was arrested for entering Indian territory without proper authority, the appellant provided professional assistance to Carlos and secured a bail order from the Chief Presidency Magistrate in Bombay. The police thwarted this bail by removing Carlos to Sawantwadi before the required sureties could be posted in Bombay. The trial proceeded rapidly, resulting in Carlos’s conviction, but the appellant appealed before the Sessions Judge, leading to the conviction being set aside and a retrial being ordered. These events occurred between February and April 1955. Third, between April and June 1955 a series of incidents took place that were allegedly inspired and instigated by members of the Goan Action Committee, who were agitating against Portuguese rule in Goa. Private individuals raided certain pro‑Portuguese presses, causing extensive damage, and the appellant was assaulted by a gang that included employees of the Goan Action Committee. Private complaints were filed on behalf of the affected parties concerning both incidents. The conduct and attitude of the police in handling these complaints suggested that the police were acting in concert with the Goan Action Committee. Counsel for the appellant strongly argued that the bona fides of the detaining authority should be assessed in light of this background, implying that the vagueness of the detention grounds and the delayed claim of privilege under article 22(6) of the Constitution further supported the appellant’s contention.

In the present matter, the appellant argued that the legality of his detention should be assessed against the backdrop of the preceding events, asserting that the vague wording of the grounds and the untimely invocation of the privilege claimed under article 22 (6) of the Constitution bolstered his contention. He further pointed out certain inconsistencies that he claimed existed in the affidavits submitted by the Under‑Secretary and the Chief Secretary before the High Court. The appellant maintained that the detention order was issued without any genuine deliberation by the detaining authority, that the authority merely acted on the advice of the police, and that the police were in collusion with the Goan Action Committee. He alleged that the police obtained the order for the purpose of suppressing his freedom, of silencing his views on Goan politics, and of professionally supporting individuals such as Carlos. The Court examined all the material relating to these allegations and gave them due consideration. Upon review, the Court found no reason to depart from the High Court’s finding that the material on record did not demonstrate that the detaining authority acted in bad faith. The Court also concurred with the High Court’s observation that the issue was not the absence of good faith on the part of the police, but rather the alleged lack of good faith and lack of deliberation on the part of the detaining authority, that is, the Government, which must be distinguished from the police. Moreover, the Court held that the claim of non‑deliberation by the detaining authority was unsupported, particularly in light of the affidavit filed by the Chief Secretary. The remaining matters for consideration concerned the alleged vagueness of the detention grounds and the purportedly untenable reliance on article 22 (6) to justify non‑disclosure. To evaluate these points, the Court examined the specific grounds of detention communicated to the appellant, which read as follows: “In pursuance of section 7 of the Preventive Detention Act, 1950 (Act IV of 1950) you are hereby informed that the grounds on which a detention order has been made against you, by the Government of Bombay under sub‑clause (1) of clause (a) of subsection (1) of section 3 of the said Act are that: With the financial help given by the Portuguese authorities you are carrying on espionage on behalf of the Portuguese Government with the help of underground workers. You are also collecting intelligence about the security arrangements on the border area and you make such intelligence available to the Portuguese authorities. These activities”.

The communication to the detainee set out that, pursuant to section 7 of the Preventive Detention Act, 1950, the Government of Bombay had detained him under sub‑clause (1) of clause (a) of subsection (1) of section 3 of that Act. It further stated that, with financial assistance from the Portuguese authorities, the detainee was allegedly engaged in espionage on behalf of the Portuguese Government, aided by underground workers, and that he was also collecting intelligence concerning security arrangements on the border area and furnishing that intelligence to the Portuguese authorities. The communication added that these activities, being carried on with the objective of aggravating relations between the Portuguese Government and the Indian Government over the Goan National Movement, were prejudicial to the security of India and to India’s relations with Portugal. The detainee was instructed that, should he wish to make a representation against the detention order, he must address his representation to the Government of Bombay and forward it through the Superintendent of Arthur Road Prison, Bombay. He was also informed that he possessed a right to a personal hearing before the Advisory Board and that he should promptly notify the Government of Bombay whether he intended to exercise that right or not. The appellant objected to the grounds in paragraph 15(g) of his application before the High Court, contending that the grounds were not specific because they failed to provide particulars such as the duration of the alleged espionage, the exact amount of financial aid received from Portuguese authorities, the identities of the underground workers alleged to have assisted him, or the specific intelligence he was accused of gathering and passing on. The Under‑Secretary of the Government of Bombay responded in paragraph 12 of his affidavit dated 25 July 1955, asserting that it was unnecessary to disclose the particulars of the espionage activities, the details of any financial assistance, or the names of persons assisting the appellant, on the ground that such disclosure was not in the public interest and was not required to give the appellant a reasonable opportunity to make a representation.

The question whether the grounds furnished were vague had to be decided by examining the circumstances of the case, as this Court had previously explained in State of Bombay v. Atma Ram Sridhar Vaidya. The Court observed that the allegation of vagueness required clarification and that a ground could be called vague only if it could not be understood or defined with sufficient certainty. The Court further noted that the determination of vagueness must vary according to the facts of each case and that, if a ground, when read, is capable of being intelligently understood and is sufficiently definite to enable the detained person to make a representation against the detention order, it cannot be described as vague. Applying that principle to the present matter, the Court considered the material contained in the communication and the objections raised, and examined whether the detainee could, on the basis of the information provided, comprehend the nature of the accusations and thereby formulate a meaningful representation. The Court concluded that, although the allegations were not as precise as might have been desired, the description given was sufficient to inform the detainee of the reasons for his detention and to permit him to make a representation, and therefore the grounds could not be said to be vague.

The detainee was informed that, in the Government’s view, his activities were prejudicial to the security of India and to India’s relations with Portugal. The Government specified three particular allegations: first, that with financial assistance from Portuguese authorities he was engaged in espionage for Portugal using underground workers. Second, that he was gathering intelligence concerning security arrangements along the border and transmitting that intelligence to Portuguese officials. Third, that he pursued these actions with the intention of worsening the diplomatic relationship between the Portuguese Government and the Indian Government over the Goan National Movement. The Court observed that these allegations were not as precise or specific as might generally ideally be required. Nevertheless, given the nature of the alleged espionage activities, it was unlikely that any more detailed information could have been obtained or supplied. The Court noted that the appellant himself did not appear to consider the furnished grounds so vague as to impede his right to make a representation under article twenty‑two clause five and section seven of the Act. No record existed of the appellant requesting the Government to provide additional particulars of the grounds that had been presented to him. Such a request for particulars had been recognized in State of Bombay v. Atma Ram Sridhar Vaidya as part of the constitutional entitlement to a reasonable opportunity to address the Detention Board. In that precedent the Court had declared that when the grounds are insufficient to enable a representation, the detainee may, if he wishes, ask for detailed particulars to facilitate his representation. The fact that the appellant made no application for further particulars was therefore a circumstance that the Court could consider when assessing whether the grounds were vague. Considering the delicate state of Indo‑Portuguese relations concerning Goa at the relevant time, the Court, agreeing with the High Court, concluded that the grounds could not be described as vague. Even if a challenge on vagueness were entertained, the Court recognized an additional question about the validity of the detention order. That question concerned whether the order could be sustained by the claim of public‑interest non‑disclosure made by the Under‑Secretary of the Government of Bombay in an affidavit presented to the High Court. The Court referred to the decision in Atma Ram Sridhar Vaidya, where the majority held that the constitutional right under article twenty‑two clause five consists of two distinct components. The first component, as stated, is the right to be furnished with the grounds of detention at the earliest possible time.

In this case the Court explained that the constitutional guarantee under article 22 (5) comprises two distinct components: first, the right of a detenue to be furnished the grounds of detention as soon as practicable; and second, the right to be afforded the earliest opportunity to make a representation against his detention, a principle articulated in the decision reported as (1) [1951] S.C.R. 167, 184, which therefore implies that the detainee must receive adequate particulars of the grounds so that he can make a proper representation. These rights impose corresponding obligations on the authority that detains a person. Consequently, the detaining authority bears a constitutional duty to provide reasonably definite grounds together with sufficient particulars either at the time the grounds are communicated or shortly thereafter. However, the right to receive such particulars is qualified by the limitation in article 22 (6), which bars the requirement to disclose facts that the authority considers to be against the public interest. It must be noted that article 22 (6) specifically states that the facts which may be withheld are those “which such authority considers to be against public interest to disclose.” Thus, both the responsibility to furnish particulars and the duty to assess whether disclosure would be prejudicial to public interest rest exclusively with the detaining authority and not with any other entity. In the High Court, it was argued that the non‑disclosure claim set out in the affidavit of the Under‑Secretary reflected a decision by the Under‑Secretary himself, made at the time of filing the affidavit, and that on this basis the claim of non‑disclosure should be held invalid. The High Court, after examining the material, concluded that the affidavit merely recorded the decision of the detaining authority taken at that time. The learned judges articulated their finding, stating: “There is nothing in the affidavit of Mr Bambawala to suggest that it is now that the detaining authority is claiming privilege or applying its mind to the question of privilege…The meaning is clear that at no time it was in public interest to disclose the details referred to in the particular paragraph of the affidavit and there is nothing to suggest that this question was not considered by the detaining authority at the time when the grounds were furnished.” No submission was made to this Court indicating how this conclusion might be erroneous. Nevertheless, the petitioners contended that the decision to withhold facts, as well as the scope of such non‑disclosure, should be expressly communicated to the detainee at the moment the grounds are presented. They argued that providing at least that information would enable the detainee to inform the Advisory Board of the difficulties he faces in making a proper representation and to request, under section 10 of the Act, the necessary particulars from the State for his own information and consideration. The Court found no basis to imply such an additional obligation under articles 22 (5) and (6). It observed that a requirement to communicate the decision not to disclose would arise only if the detainee, believing the grounds to be vague, formally requested particulars.

In this case the Court observed that an obligation could be inferred to inform a detainee when the authority decided not to disclose facts that were deemed prejudicial to the public interest. However, the Court held that because the detainee had not made any request for such particulars, the failure to communicate the decision did not impede his constitutional right to make a representation, and consequently no duty to communicate could be read into the statute under those circumstances. The Court further concluded that the appellant’s argument lacked merit. It stated that had the appellant exercised his right to request the particulars from the detaining authority at the appropriate time, there was no doubt that the authority would have provided him with the information that later appeared in paragraph twelve of the Under‑Secretary’s affidavit in response to paragraph fifteen(g) of the appellant’s petition, both of which had already been set out in the record. The Court noted that counsel had hinted, during the arguments, that the decision to withhold particulars was made in bad faith and that such mala fide intent should be imputed when no particulars are furnished at all. The Court rejected this suggestion, explaining that the power to refuse disclosure of facts for reasons of public interest could not be exercised in a manner that would destroy the detainee’s constitutional right to a fair opportunity to be heard. The Court found this allegation of bad‑faith exercise untenable given the specific nature of the grounds of detention and the particular activities attributed to the appellant. Accordingly, the Court found it unnecessary to engage in a theoretical discussion on whether article twenty‑two clause six of the Constitution supersedes the right under clause five to receive particulars, to the extent of leaving the grounds entirely vague. All of the contentions raised by the appellant were dismissed and the appeal was rejected.