Puranlal Lakhanpal vs Union Of India

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 96 of 1957

Decision Date: 24 May 1957

Coram: Bhagwati, Jafer Imam, S. K. Das, J. L. Kapur, S. K. Sarkar

The case was entitled Puranlal Lakhanpal versus Union of India and was decided by the Supreme Court of India on the twenty‑fourth day of May, 1957. The petitioner in the proceedings was Puranlal Lakhanpal and the respondent was the Union of India. The judgment was delivered by a bench of the Supreme Court and the substantive issue involved the interpretation of the Preventive Detention Act of 1950, as amended by the amending Act of 1951, in particular the validity of an order that continued a preventive detention beyond the period of three months prescribed in Article 22(4)(a) of the Constitution of India, and the role of the Advisory Board’s opinion as a prerequisite for such continuation.

The facts recorded by the Court show that the petitioner had been arrested under section 3 of the Preventive Detention Act, 1950 (Act IV of 1950) as amended by the 1951 amendment (No. IV of 1951). In compliance with section 7 of the Act, the grounds for his detention were communicated to him. Thereafter his case was referred to an Advisory Board that had been constituted under section 8 of the same Act. The Advisory Board reported that there existed sufficient cause to detain the petitioner. Acting on that report, the Central Government, exercising its authority under section 11(1) of the Act, confirmed the order of detention and directed that the detention should continue for a total period of twelve months from the date on which the detention began. The petitioner challenged the legality of this twelve‑month order by filing an application for a writ of habeas corpus in the Punjab High Court under article 226 of the Constitution. He argued that sub‑section (1) of section 11 of the Act was unconstitutional because it conflicted with the provision of article 22(4)(a), which he said required that any extension of detention beyond three months could only be made after the Advisory Board specifically reported sufficient cause for the longer period. The Punjab High Court dismissed the petition. The petitioner then appealed to the Supreme Court, raising the same constitutional question. The petitioner's contention was that the phrase “such detention” appearing in sub‑clause (a) of clause (4) of article 22 referred to a period of detention exceeding three months, and that allowing section 11(1) of the Act to authorize a twelve‑month detention without a fresh advisory report on the length of detention was ultra vires. The Union of India, on the other hand, argued that the expression “such detention” referred merely to the fact of preventive detention itself, as mentioned in the opening words of clause (4) of article 22, and that the Advisory Board’s role was limited to stating whether there was sufficient cause for the detention in general, not to decide the duration of the detention. The Supreme Court, by a majority consisting of Justices Bhagwati, Jafer Imam, S. K. Das and J. L. Kapur, held that the Union’s interpretation was correct. The Court ruled that the phrase “such detention” in article 22(4)(a) signifies preventive detention and does not prescribe any particular period for which the detention may continue. Consequently, section 11(1) of the Preventive Detention Act does not violate article 22(4)(a) of the Constitution. The appeal was therefore dismissed, and the order authorising the twelve‑month detention was upheld.

In examining the whole scheme contemplated by Article 22, the Court found that the Constitution could not have meant that while the Executive alone decided whether preventive detention was necessary, the length of such detention should be left to the Advisory Board. By its very nature the decision about how long a person may be detained can only be taken by the authority that actually carries out the detention, because that authority bears the responsibility for the confinement. The reference to an Advisory Board was therefore intended as a safeguard against any possible misuse of power by the Executive. The Board’s role is to provide a mechanism for reviewing the Executive’s decision, based on the detained person’s representation, the grounds of detention, or the report of any officer who made the order. This safeguard does not restrict the Executive’s discretion in performing its duties related to preventive detention. The Court referred to A. K. Gopalan v. The State of Madyas, (1950) S.C.R. 88, for this principle. An analysis of the Preventive Detention Act showed that its provisions are consistent with the relevant constitutional provisions. Although the Act authorises detention for periods exceeding three months, it requires that the detention order be referred to the Advisory Board, and only after the Board submits its report may the Government fix the period of detention under section 11(1) of the Act. The Court cited Makhan Singh Tarsikka v. State of Punjab, (1952) S.C.R. 368 and Dattatreya Moreshway Pangaykar v. State of Bombay, (1952) S.C.R. 612 in support of this conclusion.

The Court further held that where the authority concerned refuses to disclose any facts or particulars such as dates, persons, or places on the ground that disclosure would be against the public interest, Article 22(6) does not permit the detained person to claim, apart from the issue of mala fides, that the grounds failed to disclose the necessary facts or that the absence of such facts prevented an effective representation. In the present case, the grounds of detention afforded the detainee a sufficient opportunity to make an effective representation. The Court relied on Lawrence Joachim Joseph D’Souza v. The State of Bombay, (1956) S.C.R. 382 and State of Bombay v. Atma Ram Sridhay Vaidya, (1951) S.C.R. 167 for this point. The test for detecting mala fides in the Executive’s order of preventive detention is whether the order was motivated by any ulterior purpose other than those expressly mentioned in the detention order. Justice Sarkar noted that the expression “such detention” in Article 22(4)(a) means detention for a period longer than three months and cannot be read as meaning a simple detention. The object of Article 22(4) is to impose a limitation on the power that Parliament and the State Legislatures possess under the Constitution.

The Court examined the constitutional requirement that any law providing for preventive detention beyond a period of three months must be enacted under Article 246 of the Constitution and must obligate the Central Government to obtain the opinion of an Advisory Board as mandated by Article 22(4). The Court observed that the language of Article 22(4) does not indicate that the safeguard of Advisory‑Board opinion, which the Constitution intends to provide, extends to all forms of detention. The Court referred to the decision in A. K. Gopalan v. The State of Madras, (1950) S.C.R. 88, and held that the mere provision in a statute for obtaining the Advisory Board’s view on the sufficiency of cause for detention does not, by virtue of Article 22(4)(a), automatically require the Board to determine whether the cause is sufficient for detention exceeding three months. Where a statute fails to contain an explicit requirement that the Advisory Board must state its opinion that there is sufficient cause for detention beyond three months, the Court said, such a lacuna cannot be cured by implication. Consequently, any statute that authorises detention for a period longer than three months without expressly mandating the Advisory Board’s opinion on the sufficiency of cause for that extended period is, to that extent, invalid. The Court noted that this position was consistent with its earlier rulings in Makhan Singh Tarsikka v. The State of Punjab, (1952) S.C.R. 368 and Dattalreya Moreshwar Pangarkay v. The State of Bombay, (1952) S.C.R. 612.

The matter before the Court was Criminal Appeal No. 96 of 1957, entertained by special leave from the decisions of the Punjab High Court’s Circuit Bench at Delhi dated 24 September 1956 and the Punjab High Court at Chandigarh dated 26 September 1956 in Criminal Writ No. 128‑D of 1956. The appellant, Puran Lal Lakhanpal, appeared in person. Counsel for the respondent included the solicitor‑general of India and counsel for the respondent. On 24 May 1957, the Court announced that it would dismiss the appeal by a majority of four to one, with Justice A. K. Sarkar dissenting, and indicated that reasons would be recorded later. The judgment of the majority, delivered on 17 September 1957 by Justices Bhagwati, Jafar Imam, S. K. Das and J. L. Kapur, was read out, while Justice Sarkar gave a separate opinion. Justice S. K. Das then outlined the factual background: on 21 July 1956, the Ministry of Home Affairs issued an order of preventive detention against the appellant, stating that, in order to prevent the appellant from acting in a manner prejudicial to the security of India and to the relations of India with foreign powers, it was necessary to detain him. The order concluded with a reference to the powers vested in the Central Government by clause (a)(i) of sub‑section (1) of section 3 of the Preventive Detention Act, 1950 (Act No. IV of 1950), as amended.

The Central Government declared that Shri Puran Lal Lakhanpal, son of Shri Diwan Chand Sharma, was to be detained. Accordingly, the appellant was arrested and placed in custody on the same day, 21 July 1956. On 24 July 1956, the grounds for his detention were communicated to him under section 7 of the Preventive Detention Act, 1950 (Act No IV of 1950), hereinafter referred to as the Act. The matter was then forwarded to an Advisory Board constituted under section 8 of the Act. After considering the case, the Advisory Board reported that, in its opinion, there existed sufficient cause for the appellant’s detention. Acting on this report, the Central Government confirmed the detention order on 20 August 1956 and further ordered that the appellant “shall continue in detention for a period of twelve months from the date of his detention.” This confirmation was issued under subsection (1) of section 11 of the Act. Before the twelve‑month period expired, the appellant challenged the legality of his detention by filing a petition in the Punjab High Court and also approached this Court seeking a writ of habeas corpus. The petition before this Court was dismissed, and because no issue remained on that petition, the judgment makes no further reference to it. In the petition filed in the Punjab High Court under Article 226 of the Constitution, the appellant was permitted to raise an additional ground asserting that subsection (1) of section 11 of the Act was unconstitutional because it violated Article 22(4)(a) of the Constitution. That constitutional question was referred to a Division Bench of the Punjab High Court, which delivered an order on 24 September 1956 holding that subsection (1) of section 11 of the Act was neither repugnant to nor inconsistent with the provisions of Article 22(4) of the Constitution. Subsequently, a single Judge of the High Court considered the merits of the appellant’s petition and dismissed it by an order dated 26 September 1956. The appellant then applied to the Punjab High Court for leave to appeal to this Court, but his request was denied. He thereafter moved this Court and obtained special leave to appeal against the Punjab High Court orders dated 24 September and 26 September 1956. The appellant presented his case in person before the Court on 22, 23 and 24 May 1957. At the conclusion of the arguments on the last day of the term, prior to the commencement of the vacation, the Court intimated to the appellant that a majority of the Court had decided to dismiss his appeal, while informing him that the reasons for the decision would be provided later. The Court now sets out those reasons. The appellant’s principal contention on appeal was a constitutional one, namely that subsection (1) of section 11 of the Act was invalid because it conflicted with the mandate of subsection (a) of clause (4) of Article 22 of the Constitution. The appellant argued that subsection (1) of section 11 did not conform to the constitutional requirement set out in Article 22(4)(a).

The Court noted that the appellant argued that subsection (1) of section 11 of the Act did not comply with the constitutional requirement laid down in sub‑clause (a) of clause (4) of Article 22 of the Constitution. Consequently, the Court explained that its primary task was to place the constitutional provision that was invoked side by side with the statutory provision that was being challenged and to decide whether the latter conformed with the former. For the purpose of this examination, Article 22 of the Constitution was set out, insofar as it was relevant, in the following terms: “22. (1).................................................. (2)................................................... (3) Nothing in clauses (1) and (2) shall apply‑ (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless‑ (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub‑clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub‑clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub‑clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe‑ (a) 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); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub‑clause (a) of clause (4).” Section 11 of the Act, which was the subject of the constitutional challenge, states: “11. (1) 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.”

The provision states that the appropriate Government may continue the detention of the person concerned for such period as it thinks fit, and that if the Advisory Board reports that, in its opinion, there is no sufficient cause for the detention, the Government shall revoke the detention order and cause the person to be released forthwith. The appellant argues that the phrase “such detention” appearing in sub‑clause (a) of clause (4) of Article 22 does not refer merely to the original preventive detention order but also to any detention that extends beyond three months. Accordingly, the appellant maintains that the Advisory Board, when making its report, is required under that sub‑clause to record its opinion on whether there is sufficient cause not only for the initial detention but also for the continued detention of the person for a period longer than three months. The appellant contends that in the present case the Advisory Board did not record such an opinion, and that subsection (2) of section 10 of the Act merely obliges the Board to state whether there is sufficient cause for the detention of the appellant, without addressing the duration. The appellant further submits that subsection (1) of section 11 of the Act, to the extent that it permits the Government to extend detention beyond three months without a specific report from the Advisory Board affirming sufficient cause for that extended period, is ultra vires because it does not conform to sub‑clause (a) of clause (4) of Article 22 and fails to give effect to the true meaning of the expression “such detention.”

The respondent, on the other hand, argues that the expression “such detention” in sub‑clause (a) of clause (4) of Article 22 refers back to the term “preventive detention” found in the opening line of clause (4). Under this view, the Advisory Board is required only to give its opinion on whether there is sufficient cause for the detention of the person concerned, and there is no constitutional duty imposed on the Board to determine the period of detention. Consequently, the respondent asserts that the Board’s failure to state in its report that there is sufficient cause for detention beyond three months does not breach the constitutional mandate contained in the sub‑clause. The Court must therefore assess which of these rival interpretations is correct. No prior decision directly addressing this specific point has been identified, although observations on the meaning and effect of sub‑clause (a) of clause (4) of Article 22 were made in A. K. Gopalan v. State of Madras, as reported by Justice Kania on page 117 of that judgment.

Justice J explained that Article 22(4) begins with a double negative, and when re‑phrased positively it means that any law which authorises preventive detention for a period exceeding three months must contain a provision establishing an advisory board composed of persons possessing the qualifications mentioned in sub‑clause (a). That board is required to submit its report before the expiry of the three‑month period if, in its view, there is sufficient cause for the detention. Justice J noted that, if this clause were read in isolation and without reference to the remaining provisions of Article 22, it would be applicable to both Parliament and the State legislatures. He further observed that the proviso to this clause adds that even when the advisory board opines that there is sufficient cause for detention beyond three months, such detention may not be permitted beyond the maximum period, if any, that Parliament may prescribe under Article 22(7)(b). Moreover, Justice J pointed out that the entire sub‑clause is rendered inoperative by Article 22(4)(b) in respect of any preventive‑detention act passed by Parliament under clauses (7)(a) and (b). Because the impugned legislation is an act of Parliament, Justice J concluded that clause 22(4) has no operative effect in the present discussion and could be set aside.

Justice J was therefore considering the 1950 Act as it existed before the amendments introduced from 1951 onward. From his observations he derived three propositions. First, when expressed in affirmative terms, clause (4) of Article 22 refers to a law that provides for preventive detention and authorises detention for a period longer than three months. Second, the expression “such detention” again refers to a law that provides for detention beyond three months. Third, clause (4) of Article 22 did not apply to the 1950 Act as it stood at that time. The Court indicated that it would later demonstrate that the first two propositions do not support the appellant’s contention, and that the third proposition specifically concerned sections 9 and 12 of the 1950 Act as then framed.

The appellant, however, argued that under the Act as it now stands every detention order must be placed before the advisory board in accordance with section 9, and the board must report on each detention order under section 10. While section II A fixes the maximum period for which a person may be detained, once a detention order has been confirmed under section 11, at twelve months from the date of detention, the present Act does not contain any provision specifying the circumstances or the class of cases in which a person may be detained for a period longer than three months without first obtaining the advisory board’s opinion. Consequently, the appellant contended that the final observation of Justice Kania regarding the inapplicability of clause (4) of Article 22 to the 1950 Act remains relevant…

In this case the Court noted that the provision identified as C.J. could no longer be regarded as valid because of the amendments that have been made to the Act of 1950. Accordingly the Court proceeded on the premise that sub‑clause (a) of clause (4) of Article 22 is applicable to the Act as it exists after those amendments. Even assuming that premise, the Court expressed the view that there is no conflict between that sub‑clause and the challenged provisions of the Act, and it proceeded to explain the reasons for that conclusion. In the dissenting judgment delivered in Gopalan’s case, Justice Fazl Ali articulated observations concerning clause (4) of Article 22. He wrote that, regarding the first point, the essential question was the precise meaning of the words “such detention” that appear at the end of sub‑clause (4)(a). Two possible interpretations had been suggested: (1) that “such detention” refers to preventive detention, and (2) that it denotes detention for a period longer than three months. Justice Fazl Ali explained that if the first interpretation were correct, the role of the advisory board would be to examine the merits of each individual case and simply report whether there was sufficient cause for the detention. Under the second interpretation, the advisory board’s function would be to inform the Government whether there was sufficient cause for a person to be detained for more than three months. After considering both alternatives, he indicated a preference for the second interpretation. He observed that, prima facie, it is a serious matter to detain a person for an extended period—more than three months—without any enquiry or trial. However, Article 22(4)(a) provides that such detention may be ordered only on the basis of the advisory board’s report. Since the report must relate directly to the purpose for which it is required, the safeguard contained in the article—namely, the requirement of a report from the advisory board—would be ineffective if the board were not required to consider the crucial question before the Government, namely whether prolonged detention is justified. Justice Fazl Ali noted that Article 22(4)(a) mandates that the advisory board submit its report before the expiry of three months and that the board could, therefore, give its opinion as late as the eighty‑ninth day. He described it as somewhat farcical to require an advisory board, after a person had already been detained for eighty‑nine days, to decide whether the initial detention was justified. Conversely, he argued, determining whether prolonged detention is justified inevitably requires deciding whether the detention was justified in the first place, and only this interpretation can give real meaning and effectiveness to the provision. Because the provision functions as a protective safeguard, he concluded that he must naturally favor the interpretation that is most favorable to the individual and that accords with the intended purpose of the clause.

It was urged that the argument advanced by the appellant should be upheld. The learned Judge Patanjali Sastri, when he was a Justice, expressed a view that differed from the opinion of Justice Fazl Ali in the earlier Gopalan case, and he set out his observations at pages 209 and 210 of the report. He noted that it had been argued that the expression “sufficient cause for such detention” occurring in sub‑clause (a) of clause (4) referred specifically to detention that extended beyond three months, as mentioned in clause (4). The argument further claimed that this interpretation was supported by the wording of sub‑clause (a) of clause (7), which authorises Parliament to prescribe the circumstances and the classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of an advisory board. In other words, counsel for the appellant submitted that, when clauses (4) and (7) are read together, they require that no individual may be detained for more than three months unless an advisory board has first expressed that there is sufficient cause for the longer detention, except where Parliament has enacted a law that expressly permits such longer detention even without the advisory board’s opinion. Accordingly, those two clauses were, according to that submission, concerned solely with the duration of preventive detention, and the advisory board created by those clauses was intended only for that purpose. Justice Patanjali Sastri replied that he could not accept this construction. He explained that the phrase “such detention” in sub‑clause (a) should be read as referring back to the preventive detention mentioned in clause (4) itself, not to a detention lasting longer than three months. He further observed that an advisory board, which must be composed of judges or lawyers, would not be in a position to determine how long a person placed under preventive detention for defence‑related reasons should remain in custody. That decision, he said, belongs to the executive authorities, specifically the Department of Defence, which alone possesses the necessary data and responsibility for the country’s defence. The only function that an advisory board can reasonably perform, as a safeguard against misuse of power, is to examine whether the detention is justified and not arbitrary or made in bad faith. Justice Sastri also rejected the inference that the requirement for the board to submit its report before the expiry of three months meant that the board’s sole concern was whether the detention should continue beyond that period. He stressed that a reasonable interval must elapse before a tribunal can issue its report, because the grounds for detention have to be communicated to the detained person, who must be given an opportunity to make a representation to the detaining authority, and that representation must then be placed before the board through the appropriate departmental channel. Each of these procedural steps may, in ordinary administrative practice, take some time, and the period of three months may well have been intended as a reasonable amount of time to allow the board to complete its duties.

In this case, the Court observed that the earlier remarks about the reasonable period for an Advisory Board to submit its report were contrary to the appellant’s contention. The Court explained that to understand the true scope and effect of clause (4) of Article 22, the entire scheme of Article 22 must be considered. Article 22 provided protection against arrest and detention in certain situations. Clauses (1) and (2) dealt with arrest and detention in specific circumstances and prescribed safeguards. Clause (3) then stated that the provisions of clauses (1) and (2) did not apply to a person arrested or detained under any law that provided for preventive detention; thus, preventive‑detention laws were placed in a separate category and were dealt with by clauses (4) to (7). The Constitution empowered Parliament and the State Legislatures to enact preventive‑detention laws, but that power was not unlimited; it was limited by clauses (4), (5), (6) and (7) of Article 22. The Constitution itself did not fix a maximum period of detention; instead, it permitted Parliament to prescribe such a period by law. The Constitution contemplated that any law authorising detention for more than three months should be subject to the safeguards listed in clause (4), which required that the case of a detained person under such a law be placed before an Advisory Board. The Advisory Board was required to report whether there were sufficient reasons for the detention. If the Board found the detention justified, the detaining authority could determine the period of detention; if the Board found the detention unjustified, the detained person had to be released. Clause (4) did not require the Board to decide whether the detention would exceed three months; its task was only to decide whether the detention was justified at all. The establishment of an Advisory Board to examine the justification of detention was regarded as an adequate safeguard against arbitrary detention under any preventive‑detention law that allowed detention for more than three months. The matter before the Board concerned the existence of sufficient cause for detention, not the length of the detention. Clause (7) of Article 22 constituted an exception to clause (4). It authorised Parliament alone to enact a preventive‑detention law that permitted detention for more than three months without the opinion of an Advisory Board, provided that the law specified the circumstances and the class or classes of cases in which a longer detention could be imposed. The Constitution therefore did not envisage that a detention of three months or less would require the safeguard of an Advisory Board report.

In the constitutional scheme, a detention of a person for a period of three months or less was not deemed sufficiently serious to require the safeguard of a report by an Advisory Board stating that there was sufficient cause for detention. The Constitution, however, mandated that an Advisory Board be established for every case of detention effected under a law that authorised detention for more than three months. When a detained person’s case was placed before such a Board under a law permitting detention beyond three months, it had to be presumed that the Board understood that if it reported the detention to be justified, the detainee could be held for a period exceeding three months and up to the maximum term allowed by the law. The expression “such detention” in Article 22(4)(a) was interpreted to refer to preventive detention rather than to the length of the detention. Moreover, the Court observed that clause (4) of Article 22 prohibited any law from providing for detention of more than three months without a provision for an Advisory Board, while clause (5) required that the grounds of detention be disclosed and that the detainee be given an opportunity to make a representation against the order. These safeguards, however, were subject to the qualifications in clauses (6) and (7). Under clause (6), facts that the detaining authority considered against the public interest need not be disclosed. Under clause (7), Parliament was permitted to specify the circumstances and the classes of cases in which a person could be detained for a period longer than three months without obtaining the opinion of an Advisory Board. Consequently, the Constitution gave the Executive discretion not to furnish certain facts in particular situations, and also allowed Parliament to prescribe categories of cases where reference to the Board was not required. Hence, both the requirement to furnish grounds and the Board’s report were, in effect, limited safeguards.

The Court further noted that because the detention was of a preventive nature, the Executive necessarily had to consider both whether a person should be detained and for how long. It could not have been the intention of the Constitution to vest the power to determine the necessity of detention of a particular individual solely in the Executive and to leave the question of whether the detention should last three months or longer to another authority, namely the Advisory Board. By its very nature, the decision regarding the period of detention had to rest with the detaining authority, since that authority bore the responsibility for the detention. The reference to the Advisory Board therefore functioned only as a safeguard against executive arbitrariness and high‑handed action. The Board was a constitutional mechanism designed to review the Executive’s decision on the basis of a representation made by the detainee, the grounds of detention, and, where the order was issued by an officer, the report of that officer. The Board’s role was not intended to limit the Executive’s discretion in the performance of its duties connected with preventive detention; rather, it served as a protection against misuse of power.

The Court explained that the power to carry out duties related to preventive detention is vested in the executive, but that power is restrained by safeguards designed to prevent misuse. The Court then described the structure of the legislation that is before it. A detention order is issued under section three of the Act. When such an order is made by an officer pursuant to sub‑section two of section three, that officer must forward a report to the State Government under whose authority he serves, and the detention order cannot continue for more than twelve days unless, during that period, the State Government gives its approval.

Section seven of the Act obliges the authorities to inform the detained person of the reasons for his detention as soon as possible, and in any event no later than five days after the detention takes effect. Section eight provides for the constitution of an Advisory Board. According to section nine, whenever a detention order is issued under the Act, the appropriate Government must, within thirty days of the detention, present to the Advisory Board both the grounds on which the order was made and any representation, if any, submitted by the detained individual. Section ten sets out the procedure to be followed by the Advisory Board and requires that the Board submit its report to the appropriate Government within ten weeks from the date of detention. Sub‑section two of section ten further mandates that the Board’s report contain a separate part stating the Board’s opinion on whether sufficient cause exists for the detention of the person concerned. The Court then referred to section eleven, which it had previously quoted in full.

The Court noted that the functioning of the Act has been clarified in several earlier decisions of this Court. In the case of Makhan Singh Tarsikka v. State of Punjab, it was observed that, regardless of the position under the original Preventive Detention Act of 1950, after the amendment made in 1951 the Government is required to determine the period of detention only after the Advisory Board, to which the case has been referred, has reported that the detention is justified. As Patanjali Sastri C. J. explained, the Government must wait for the Advisory Board’s report before fixing the detention period; fixing the period in the initial order, as had occurred in the present case, was therefore contrary to the statutory scheme and could not be upheld.

In Dattatreya Moreshwar Pangarkar v. State of Bombay, Mukherjea reiterated that the Court had settled the principle that the detaining authority need not, and indeed should not, specify the period of detention when it makes the original order under section three(1). Stating a period in the original order would prejudice the detained person’s case when it is later considered by the Advisory Board. The Board’s role is limited to expressing an opinion on whether sufficient cause exists for detention; it is neither called upon nor empowered to decide the length of the detention. After the Board reports that sufficient cause exists, the appropriate Government may, under section eleven(1) of the Act, confirm the detention order and continue the detention for whatever period it deems appropriate.

In this case, the Court observed that under the Preventive Detention Act an order that specified any period of detention would be faulty and illegal because such a specification could prejudice the detainee when the matter was later considered by the Advisory Board. The Court explained that the Advisory Board was required only to state whether there was sufficient cause to detain the person; it was neither called upon nor authorised to comment on the length of detention. After the Board rendered its opinion that sufficient cause existed on the date of its report, the decision as to what step should follow was left entirely to the appropriate Government. The Government could, under section 11(1) of the Act, confirm the original detention order and continue the detention for whatever period it deemed appropriate. The Court noted that the wording “for such period as it thinks fit” presupposed that, upon receiving the Board’s report, the detaining authority must decide whether to confirm the original order and, if it does, determine the further duration of detention. The Court further stated that this moment was the proper stage for making such an order because, once the investigation contemplated by the Act was completed, the Government possessed all the material concerning the detainee. The Court referred to the citation (1) [1952] S.C.R. 612, 626 to illustrate that the investigative phase concluded with the Board’s report, placing the Government in full possession of all relevant evidence. Consequently, any attempt to determine the period of detention before the Board’s report would be premature and contrary to the statutory scheme.

The learned Judge also quoted the constitutional provision that a person detained under any law providing for preventive detention could not be held for more than three months unless the Advisory Board expressed the opinion that sufficient cause existed for continued detention. The Constitution itself set the maximum limit for the initial detention at three months, and any extension beyond that period could be made only on the basis of the Advisory Board’s report. From these observations the Court concluded that the scheme of the Act was clear. The Act authorised detention for a period longer than three months only after the order was referred to the Advisory Board, and only when the Board made its report could the appropriate Government fix the detention period under subsection (1) of section 11. For all of these reasons the Court held that subsection (1) of section 11 did not contravene any provision of Article 22 and was therefore valid. The Court then indicated that it would proceed to consider the merits of the arguments raised by the appellant. The appellant had contended that the grounds of detention communicated to him were vague, except for ground No. 2, and that the vague grounds denied him an effective opportunity to make a representation as guaranteed by Article 22(5).

In this case the appellant contended that the second ground of detention was vague and that the remaining grounds, as communicated to him, did not provide a real opportunity to make an effective representation, a right that is guaranteed under clause (5) of Article 22. The grounds other than ground No 2 were set out as follows: first, the appellant was alleged to have been in constant contact for the past two years with foreign correspondents in India and with representatives of foreign countries, to whom he allegedly spread false reports and information about conditions in the State of Jammu and Kashmir, thereby prejudicing India’s relations with foreign powers and compromising the security of the State; third, he was alleged to be in constant touch with certain persons in Pakistan and in the Pakistani‑occupied part of Jammu and Kashmir who were hostile to India, and to be assisting those persons in activities that were said to be detrimental to India’s security; fourth, he was alleged to receive financial assistance from persons in Pakistan and in the Pakistani‑occupied part of Jammu and Kashmir for supporting and furthering the aforementioned prejudicial activities; fifth, he was alleged to be in regular connection with persons in India who were engaged in propagating false propaganda against India concerning Kashmir, and to have attended secret meetings of those persons for planning actions and propaganda that were prejudicial to India’s security; and sixth, the Central Government was alleged to be satisfied that the appellant was likely to act in a manner that would be prejudicial to India’s security and to India’s relations with foreign powers, and that, in order to prevent such conduct, the Government had issued an order for his detention. The same document that set out these grounds also contained a statement in paragraph 7, which read: “The Central Government is satisfied that it is against the public interest to disclose to you any facts or particulars as to dates, persons and places and the nature of your activities and the assistance received or otherwise than those which have been already mentioned.” The appellant argued that by refusing to disclose any facts or particulars concerning dates, persons or places, the detaining authority had effectively denied him the valuable right guaranteed by clause (5) of Article 22. He relied on the recent decision of this Court in Lawrence Joachim Joseph D’Souza v. The State of Bombay, reported in 1956 S.C.R. 382, where the Court held that the detainee’s right to be furnished with facts or particulars was subject to the limitation set out in clause (6) of Article 22. The Court further held that even if the grounds communicated were not as precise or specific as might be desired, the appropriate authority retained the power to withhold those facts or particulars when it considered their disclosure to be against the public interest. Applying that principle, the Court observed that the privilege to withhold information had been exercised in the present case, and therefore, apart from any allegation of mala‑fides, the appellant could not successfully claim that the grounds communicated were insufficient.

The Court observed that the appellant’s argument that the detaining authority failed to disclose the necessary facts or particulars, thereby depriving him of the ability to make an effective representation, could not be sustained. The Court recalled the decision in The State of Bombay v. Atma Ram Sridhar Vaidya (1), where it was held unanimously that, under section 3 of the Act, the satisfaction of the appropriate authority is the indispensable condition for a detention order. The Court further explained that if the grounds on which the authority claims to be satisfied are rationally connected with the objects that the law seeks to prevent, the question of the authority’s satisfaction may be challenged in a court of law only on the basis of mal‑afides. The Court then turned to the majority view that clause (5) of Article 22 confers two distinct rights on a detenu: first, the right to be informed of the grounds on which the detention order is made; and second, the right to be given the earliest opportunity to make a representation against that order. The Court clarified that when the grounds supplied have a rational connection with the objects enumerated in section 3, the first of these rights is deemed satisfied. However, the right to make a representation presupposes that the detenu possesses information sufficient to enable him to formulate that representation. If the supplied grounds are inadequate for that purpose, the detenu may rely on the second right. The Court emphasized that the second right remains subject to the privilege conferred by clause (6), and, as pointed out in the case of Lawrence D’Souza (supra), the duty to furnish grounds and the discretion to withhold any fact on the ground of public interest both reside exclusively with the detaining authority and with no other body. Consequently, the Court found it unnecessary in the present matter to engage in a theoretical debate on whether Article 22(6) of the Constitution overrides the constitutional entitlement under Article 22(5) to the extent of denying all particulars and rendering the grounds wholly vague. The Court expressed the opinion that, although the grounds furnished to the appellant were not as precise and definite as might have been desired, they nonetheless afforded him a sufficient opportunity to exercise the right guaranteed by clause (5) of Article 22. With respect to ground number 2, the appellant raised several points. Ground number 2, as communicated to the appellant, reads as follows: “2. That you addressed a Press Conference at New Delhi on the 18th day of February, 1956, which was attended by a large body of press correspondents of foreign countries and that you made a speech (a copy of the contents of which is annexed) containing various false statements about the conditions of the people of Kashmir. The combined effect of these statements is prejudicial to the security of India.”

The order listed extracts of statements that the appellant allegedly made at a press conference held in New Delhi on 18 February 1956. The appellant contended three separate points. First, he claimed that the ground for his detention was punitive rather than preventive. Second, he argued that the ground was unrelated to the stated purpose of his detention, namely the security of India and its relations with foreign powers. Third, he asserted that the ground contained verbal inaccuracies, especially concerning the description of what transpired at the press conference. After examining each of these contentions, the Court concluded that none of them possessed any merit. Regarding the first contention, the Court observed that although the ground unmistakably referred to the events of 18 February 1956, this factual reference did not transform the detention into a punitive measure. The Court emphasized that an assessment of the appellant’s future conduct must be largely inferred from his past actions, and that the mere existence of a past incident does not render a preventive detention punitive in nature.

Turning to the second and third contentions, the Court held that the ground articulated a rational link to the objectives for which the appellant was detained, which were to prevent him from acting in a manner prejudicial to (i) the security of India and (ii) India’s relations with foreign powers. Both of these objectives, the Court found, fell squarely within the scope of the ground in question. Concerning the alleged verbal inaccuracies, the Court considered them to be trivial and not worthy of detailed discussion. As an illustration, the extract accompanying the ground stated: “it would be no exaggeration to state that were a plebiscite to be held there today, over 90 percent of Kashmiris would vote against India…”. The appellant’s actual words were: “It would not be an exaggeration to state that were a plebiscite to be held there today, over 90 percent of Kashmiris would vote against India…”. The only difference lay in the substitution of the word “no” for “not”, a change the Court deemed immaterial and not an inaccuracy. Consequently, the Court rejected the appellant’s claim that the detaining authority had not properly considered the ground. Finally, the appellant raised the issue of mala‑fides, alleging that the Prime Minister and the Home Minister were displeased with him and that this animus influenced the detention order. The Court, having examined the extensive consideration given to this allegation by the learned Judge of the Punjab High Court, found no basis to accept the appellant’s contention that the order was issued for an ulterior purpose or that any malice was involved.

The Court rejected the appellant’s allegation that the detention order was issued for an ulterior motive. It accepted the view of the Punjab High Court judge that the appellant’s activities and the events that occurred between 1954 and 1956, which the appellant highlighted in his affidavit, do not demonstrate that the detention order was founded on any purpose other than those expressly stated in the order. The Court held that, in determining whether mala fides exists, it is irrelevant whether the authorities liked or disliked the appellant’s conduct. The sole inquiry is whether the order was made for a purpose different from, or beyond, the purpose specified in the detention order. After reviewing the material placed before it, the Court found that the appellant had failed to establish any mala fides. Consequently, the Court affirmed the order it had issued on 24 May 1957, which dismissed the appellant’s appeal.

The appeal arose from an application for a writ of habeas corpus. The appellant had been taken into custody on 21 July 1956 under a detention order issued by the Government of India pursuant to the Preventive Detention Act, 1950 (Act IV of 1950). On 24 July 1956 the appellant was served with the grounds for detention, as required by the Act, and subsequently lodged a representation against the order. The representation was considered by the Advisory Board established under the Act. On 22 August 1956 the appellant received a further order from the Government of India stating that the Advisory Board had reported sufficient cause for his detention. The Government then confirmed the original detention order and directed that the appellant remain in detention for a period of twelve months from the date of his arrest. The appellant challenged the legality of these orders before the Punjab High Court, which dismissed his petition for release. He then appealed, contending that the provision of the Preventive Detention Act, 1950 relied upon to make the orders was beyond the powers of Parliament under the Constitution. The Court concluded that this constitutional objection was well‑founded and, therefore, did not feel the need to address the remaining contentions raised by the appellant. The appellant’s contention was based on Article 22(4)(a) of the Constitution, which provides that no law establishing preventive detention shall authorize the detention of a person for a longer period than three months unless an Advisory Board…

In the matter before the Court, the wording of Article 22(4)(a) of the Constitution was examined. That provision declares that a longer period than three months is permissible only if (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the expiry of the three‑month period that, in its opinion, there is sufficient cause for such detention; provided that nothing in this sub‑clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub‑clause (b) of clause (7); or (b) the person is detained in accordance with the provisions of any law made by Parliament under sub‑clauses (a) and (b) of clause (7). The Constitution further provides in clause (7) that Parliament may by law prescribe (a) the circumstances 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); and (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention. Consequently, the Court held that unless Parliament by statute supplies a different scheme, the requirements of clause (4)(a) of Article 22 must be observed by any law that provides for preventive detention. No parliamentary enactment has altered this position. The Preventive Detention Act 1950, therefore, must satisfy the conditions of Article 22(4)(a) in order to be constitutionally valid. The appellant argued that the Act fails to meet this requirement. Although the language of the constitutional provision is somewhat obscure, it was accepted that the obligation to obtain a report from an Advisory Board is not imposed directly by Article 22(4)(a) but must be incorporated into the substantive preventive‑detention law itself. The Act authorises a maximum detention period of twelve months from the date of detention, which exceeds three months and thus classifies the statute as a law providing for preventive detention. Accordingly, if the Act is intended to permit detention for more than three months, it must contain a provision requiring that an Advisory Board, constituted as specified, report that in its opinion there is sufficient cause for the detention. This requirement was not contested. The controversy centered on the interpretation of the words “such detention.” The appellant contended that “such detention” refers specifically to detention for a period longer than three months, and therefore any preventive‑detention law allowing detention beyond three months must also require the Advisory Board’s opinion that there is sufficient cause for detention for a period longer than three months.

The Act, as applied in the present matter, indeed contains provisions for constituting an Advisory Board and for referring every case of detention, irrespective of the length of that detention, to the Board for its opinion on whether sufficient cause exists for the detention. However, the Act does not stipulate that when the intended period of detention exceeds three months, the Advisory Board must specifically report that there was sufficient cause for a detention of that longer duration. The requirement that the Board give an opinion is set out in section 10(2) of the Act, which reads as follows: “The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.” Consequently, if the appellant’s contention is correct—that the expression “such detention” refers to detention for a period longer than three months—then the provisions of the Act that permit detention for more than three months would be beyond the authority granted by the Constitution and would have to be declared ultra vires. The crucial issue, therefore, is the proper meaning of the words “such detention.” By a pure construction of the language employed in sub‑clause (a), it appears that “such detention” must be understood to mean detention for a longer period than three months. The term “such” signifies “of the kind or degree already described,” and among the definitions of “such” offered in the Oxford Dictionary, the one that fits this context is the only appropriate meaning. Counsel for the respondent did not advance any alternative interpretation. The only kind or degree of detention previously described in the clause is detention for a period exceeding three months; thus, the Court feels compelled to accept the appellant’s interpretation.

The learned Solicitor‑General, opposing the appeal, argued that the phrase “such detention” could be understood in two ways: either as detention in general (detention simpliciter) or as detention for a period longer than three months. He presented several reasons why the broader, generic meaning should be preferred. The Court, however, cannot accept that the expression carries two distinct meanings. Clause (4) envisions a law of preventive detention but does not itself authorize such a law; the power to enact a preventive detention law lies with Parliament and the State legislatures pursuant to Article 246 of the Constitution, item 9 of List I and item 3 of List III of the Seventh Schedule. Having contemplated such a law, clause 4 proceeds to stipulate that the law shall not authorize the detention of a person for a period longer than three months unless the Advisory Board reports, in its opinion, that there is sufficient cause for such detention. In other words, the clause imposes a limitation on the legislative power to pass laws permitting preventive detention, ensuring that any authority to detain beyond three months must be predicated on a specific advisory finding. This limitation underscores that the phrase “such detention” necessarily refers to detention for a period longer than three months, and no other reference is contemplated within the clause.

The provision in clause (4) imposes only a limitation on the power to enact laws that permit preventive detention. This limitation was explained by Das J. in the case of A. K. Gopalan v. The State of Madras, where he observed (p. 324) that articles 21 and 22 of the Constitution place a check on the State’s power that is derived from article 246 together with the legislative lists. Consequently, the sole object of clause (4) is to address detention that extends beyond three months under a preventive‑detention law, the existence of which the clause assumes. For this reason the expression “such detention” must be understood to refer specifically to detention for a period longer than three months. There is no other meaning that can be attached to the phrase. The clause does not contemplate preventive detention without reference to its duration, and it certainly does not refer to the preventive‑detention law itself. Although that law might, in theory, provide for detention of a shorter duration, the clause makes no mention of such a shorter period and does not contemplate it. Hence there is no basis for interpreting “such detention” as relating to a brief detention. Even if one were to entertain the argument that the words could denote both a simple preventive detention and a longer detention of more than three months, such a dual construction finds no support in the language of clause (4).

The learned Solicitor‑General suggested that if “such detention” were limited to detention exceeding three months, persons held for a shorter period would lose the safeguard of an Advisory Board’s opinion and would be denied the opportunity to be released if the Board found no sufficient cause for detention. While that consequence is undeniable, the judgment finds nothing in the wording of clause (4) that indicates an intention to provide such a safeguard for shorter detentions. Where the language does not express that purpose, the argument must fail, regardless of any desire by the Court to extend the safeguard to all detentions. If the Constitution had intended to afford this protection universally, it would not have required the Advisory Board’s report to be submitted before the expiry of three months. As Fazl Ali, J. explained in Gopalan’s case (p. 171), “Under article 22 (4)(a) the Advisory Board has to submit its report before the expiry of three months and may therefore do so on the eighty‑ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty‑nine days, an advisory board is to say whether his …” This passage underscores that the Constitution did not contemplate placing every detention, irrespective of its length, before the Advisory Board, and therefore the safeguard described by the Solicitor‑General was not intended to apply to shorter periods of preventive detention.

The Court observed that the Constitution could not have envisioned the situation described by Justice Fazl Ali, namely that an advisory board should render its opinion after a detainee had already been held for eighty‑nine days. Consequently, the Constitution did not intend that every case of detention, regardless of its duration, be submitted to the advisory board. The Court therefore concluded that the safeguard suggested by the learned Solicitor‑General was not contemplated by the constitutional provision. In support of this view, the Court noted that all the other judges who participated in Gopalan’s case, except for Justice Patanjali Sastri, expressed a similar opinion. Chief Justice Kania, writing on page 118 of the Report, held that when Articles 22(4) and (7) were read together, they implied that preventive detention of less than three months without the involvement of an advisory board was permissible, provided the legislation fell within the competence of Parliament or the State Legislature. Justice Mahajan, on page 228, stated that if the Constitution had intended preventive‑detention laws to be judged by a standard of reasonableness, it would not have needed to spell out in Article 22 the exact limits of the period for which such a law could be made, nor would it have required the procedures prescribed in the article. He added that many of the provisions of Article 22 would then have become redundant, for example, the rule that no detention could exceed three months without examination by an advisory board. Justice Mahajan further observed on page 237 that clause (4) of Article 22 expressly required that no law could provide for preventive detention for a longer period than three months without reference to an advisory board. Justice Mukherjea, on page 281, explained that preventive detention could be authorized for reasons set out in six different categories in the legislative lists, and irrespective of those reasons, Article 22(4)(a) mandated that detention beyond three months could not be allowed except with the sanction of an advisory board. Justice Das, on page 326, summed up that clause (4) of Article 22 placed a limitation on the legislative power concerning the period of preventive detention and, in addition to that limitation, prescribed a procedure for detentions exceeding three months by requiring an advisory board.

The learned Solicitor‑General then argued that Article 22 dealt with both preventive detention and other forms of detention. He maintained that clauses (1) and (2) addressed other kinds of detention, while clause (4) and the remaining clauses of the article pertained to preventive detention. Clause (3), he said, clarified that nothing in clauses (1) and (2) applied to a person detained under any law providing for preventive detention. The Solicitor‑General further contended that the expression “such detention” in clause (4) was intended to refer specifically to preventive detention without reference to its duration, distinguishing it from the other kinds of detention mentioned in clauses (1) and (2). He sought to bolster this argument by asserting that preventive detention for a period longer than three months was not a separate category of preventive detention, and therefore the phrase “such detention” referred to the only form of preventive detention mentioned in the article, namely preventive detention in the general sense and without any qualification concerning the length of the detention.

In the present matter, the learned solicitor‑general argued that the expression “detention” appearing in clause (4) of article 22 was meant to refer to preventive detention without any reference to the length of the detention, thereby distinguishing it from the other kinds of detention mentioned in clauses (1) and (2). He further attempted to reinforce this view by contending that preventive detention extending beyond three months did not constitute a separate category of preventive detention; consequently, the words “such detention” in clause (4) were said to refer only to the single type of preventive detention that the article mentions, namely preventive detention in its ordinary sense, without any qualification as to the period of confinement. The Court could not accept this submission. While it is correct that the phrase “such detention” in clause (4) undeniably points to preventive detention, clauses (4) through (7) of article 22 deal exclusively with preventive detention and no other form of detention. Because these clauses address only preventive detention, there was no necessity to distinguish “preventive detention as such” from other kinds of detention, nor was there any need to employ the word “such” to create such a distinction. Accordingly, the expression “such detention” must be read as meaning “such preventive detention.” This raises the question of which variety of preventive detention is intended. The answer is that the provision refers to one particular variety of preventive detention, distinguished from other varieties that may exist. It is also true that preventive detention for a period longer than three months remains preventive detention and does not become a different kind of detention altogether. At the same time, preventive detention for a longer period is not identical to preventive detention for a shorter period. It is entirely conceivable that a law dealing with preventive detention may prescribe different provisions for different permissible periods of confinement.

Preventive detention inevitably interferes with a person’s personal liberty and constitutes an intrusion upon his freedom. The framers of the Constitution, having empowered the legislatures to enact laws that authorize such interference, may have considered it unnecessary to impose a limitation on legislative power when the contemplated detention was of relatively brief duration, while deeming it appropriate to restrict the power in cases where the detention was to extend for what they perceived as a long period. If that was indeed their intention, the Constitution would naturally contain a distinction between preventive detention of a shorter duration and preventive detention of a longer duration. To assert that no distinction exists between these two kinds of preventive detention is to assume that the Constitution’s makers never entertained the possibility that a longer period of detention might be justified, or that their opinion on the sufficiency of cause for a longer detention would never be expressed in a report of an advisory board, and consequently that the article had been complied with in every circumstance. The argument advanced by the respondent rests on the assumption that the words “such detention” denote detention for a period longer than three months and that the article obliges a law of preventive detention to obtain an advisory‑board report specifically concerning the sufficiency of cause for a detention exceeding three months. This assumption, however, is not supported by the textual analysis of the provision.

It was observed that the Constitution does not forbid a statute authorising preventive detention from requiring the opinion of the Advisory Board as to whether there is sufficient cause for the detention, irrespective of the length of the detention. Consequently, a law on preventive detention may lawfully contain a provision that the Advisory Board’s opinion be obtained in every case of detention. The Act presently under consideration indeed includes such a provision, and therefore the contention that any requirement for the Advisory Board’s opinion must pertain only to detentions longer than three months cannot be sustained. Moreover, the argument that the presence of a clause seeking the Advisory Board’s opinion automatically satisfies the constitutional stipulation that the opinion relate to a period exceeding three months is rejected. The Court held that the issue is not what the board’s report may appear to state or what it actually states, but rather what the statute itself must provide. If the legislation fails to contain the mandatory provision, it must be declared invalid; it cannot be saved by an implied or constructive compliance. To hold otherwise would amount to an untenable position that a statute lacking the requisite clause is nevertheless valid because the Constitution is deemed to have implicitly supplied the missing requirement, a position for which no justification was found. The Court further noted that the judgment in Gopalan’s case makes clear that the framers of the Constitution distinguished between preventive detention in general and preventive detention for a period longer than three months, as the Constitution’s reference to the Advisory Board is limited to detentions exceeding three months. The present argument advanced by the Solicitor‑General rests on one possible construction of the term “such detention,” namely, that it means detention for a period longer than three months. Applying the ordinary meaning of the word “such” in English, as previously described, the term refers to the kind of detention mentioned most closely to it. Even if two forms of detention—preventive detention in general and detention for other reasons—have been cited earlier, the form nearest the word “such” is the one intended. Accordingly, the expression “such detention” must be interpreted as referring to detention for a period longer than three months.

In this case the Court held that clause (4) and the remaining provisions of the article are concerned only with preventive detention and not with any other form of detention. Accordingly, the word “such” cannot be used to create a distinction from a matter that appears in a completely separate part of the article, namely clauses (1) and (2). Because of this, the Court was unable to accept the submission that the expression “such detention” should be understood as referring to preventive detention in the general sense.

The Court then examined another issue that had been raised. It was argued that Article 22(4)(a) is applicable only to a law that authorises detention for a period longer than three months, and that only such a law is required to obtain the opinion of the Advisory Board. The argument continued that whenever a law authorising preventive detention makes provision for a reference to the Advisory Board, it automatically requires a report on whether there is sufficient cause for detention exceeding three months. It was further submitted that, because the Advisory Board is not tasked with deciding the length of detention, requiring its opinion on whether there is sufficient cause for a detention of more than three months would be pointless.

The Court observed that the relevance of the point is immaterial. If the constitutional text mandates that the opinion of the Advisory Board must be obtained, then that opinion must be obtained. The Court reiterated that the language of the Constitution “indubitably” requires such an opinion; otherwise the provision would be without any purpose. Moreover, the Court could not understand why, when the Government determines that the period of detention will exceed three months, it would be unnecessary to obtain the view of an independent body as to whether there is sufficient cause for that longer period. In the Court’s view, it is entirely reasonable to make such a requirement.

The Court noted that when a person’s liberty is to be curtailed for a relatively long period, a safeguard is appropriate, whereas a shorter curtailment may not need the same level of protection. The Court reiterated that the reasonableness of this safeguard is implicit in the judgment in Gopalan’s case, where it was held that only in cases of detention for a period longer than three months does the Constitution require a provision for obtaining the Advisory Board’s opinion. This position was clearly expressed by Justice Fazl Ali, who observed that it is a serious matter to detain a person for a long period (more than three months) without any enquiry or trial, and that the constitutional safeguard of a report from the Advisory Board loses its value if the Board is not required to consider the essential question of whether prolonged detention is justified.

In this matter the Court observed that detaining a person for a period of months without any enquiry or trial was a serious step, but that article 22(4)(a) allowed such detention to be ordered based on the report of the advisory board. The Court explained that the report had to be directly connected with the purpose for which it was required, and therefore the protection intended by the article – namely the requirement of a report from the advisory board – would be lost if the advisory board did not apply its mind to the essential question before the Government, that is, whether prolonged detention, understood as detention for more than three months, was justified. The Court noted that it had previously examined whether the expression “such detention” referred simply to preventive detention in general or specifically to preventive detention for a period exceeding three months, and that this issue remained a matter of construction without a definitive authority, although several authorities had been cited for consideration.

The Court turned to the first cited authority, Gopalan’s case, which also involved a writ of habeas corpus and concerned the very statute now before the Court as it stood in 1950. At the time the order for detention in Gopalan’s case was made, the statute permitted, in certain classes of cases, detention for a period longer than three months without obtaining the advisory board’s opinion as required by article 22(4)(a). This exception was sanctioned by clause (7)(a) of that article. Because the order in that case fell within the category where reference to the advisory board was not mandatory, the Court in Gopalan’s case had not needed to resolve the precise meaning of the words “such detention”. Nevertheless, three of the learned judges expressed their views on the question, while the other three did not address it.

Chief Justice Kania, writing for a part of the Court, held that the words “such detention” meant detention beyond the period of three months. He referred to the proviso to sub‑clause (4)(a) and explained that even if the advisory board opined that there was sufficient cause for “such detention”, i.e., detention beyond three months, the detention could not exceed the maximum period prescribed by Parliament under article 22(7)(b). Accordingly, Chief Justice Kania concluded that under article 22(4)(a) the advisory board had to form an opinion that there was sufficient cause for detention beyond the three‑month threshold.

Justice Fazl Ali articulated a clearer position. He emphasized that the crucial question was the exact meaning of the phrase “such detention” occurring at the end of clause (4)(a). He explained that two possible interpretations existed: first, that “such detention” referred to preventive detention in general; second, that it referred specifically to detention for a period longer than three months. Justice Fazl Ali indicated that if the first interpretation were accepted, the advisory board’s role would be to examine the merits of each individual case and simply report whether there was sufficient cause for detention. Under the second interpretation, the advisory board’s function would be to advise the Government on whether there was sufficient cause for the person’s detention for more than three months. The Court expressed a preference for the second interpretation, reasoning that the seriousness of detaining a person for a longer period without enquiry or trial demanded the safeguard of an advisory board report focused on the justification for detention beyond three months.

In this case, the Court observed that two different meanings had been suggested for the phrase “such detention” in clause (a) of article 22(4). The first suggested meaning was that the phrase referred to preventive detention in general, while the second suggested meaning was that it referred to detention that lasted for a period longer than three months. The Court explained that if the first meaning were accepted, the advisory board’s role would be to examine the merits of each individual’s case and simply indicate whether there was sufficient cause for that person’s detention. By contrast, if the second meaning were accepted, the advisory board would be required to advise the Government on whether there was sufficient cause for the person to be detained for a period exceeding three months. After considering both alternatives, the Court expressed a preference for the second interpretation. The Court noted that, on its face, it is a serious matter to hold a person for more than three months without any enquiry or trial, yet article 22(4)(a) permits such extended detention only on the basis of a report from the advisory board. Because the report must be directly linked to the purpose for which it is sought, the protection afforded by the article would be rendered ineffective if the advisory board were not required to consider the crucial question of whether prolonged detention, that is detention beyond three months, is justified. The Court further explained that the advisory board must submit its report before the expiration of three months, which could be as late as the eighty‑ninth day of detention. It would be absurd, the Court said, to allow an advisory board to assess the validity of the original detention after a person has already been held for eighty‑nine days. Moreover, determining whether detention for more than three months is justified inevitably involves deciding whether the detention was justified at all, and only this interpretation gives the provision real meaning and effectiveness. Because the provision is intended as a safeguard, the Court naturally leaned toward the interpretation that favours the detainee and aligns with the provision’s purpose. Justice Patanjali Sastri, however, favoured the opposite view but acknowledged that Justice Fazl Ali’s interpretation was also possible. Justice Sastri stated that the words “such detention” refer back to the preventive detention mentioned in clause (4) and not to detention for a period longer than three months. He argued that an advisory board, which must consist of judges or lawyers, would not be in a position to determine the appropriate length of detention in matters such as defence‑related preventive detention, and that such decisions should be left to the executive authorities, specifically the Department of Defence, which alone possesses the necessary information and responsibility for the country’s defence.

In this discussion the Court observed that the purpose of an advisory board is to act as a safeguard against the misuse of preventive‑detention power. The board’s limited function is to examine whether a detention is justified and whether it is arbitrary or mala fide, and not to decide on the length of the detention. The statutory requirement that the advisory board submit its report before the expiry of three months does not mean that the board’s sole concern is to determine whether the detention should continue beyond that three‑month period. Before a report can be filed, a reasonable interval must elapse because the grounds for detention must first be communicated to the person detained, the detainee must be given an opportunity to make a representation to the detaining authority, and that representation must then be placed before the board through the appropriate departmental channel. Each of these procedural steps can take time in the normal course of official business, and the three‑month period was intended to provide a reasonable window for completing them. Even if the phrase “such detention” were read as referring to the period of detention, there is no justification for limiting the advisory board’s enquiry to the question of duration beyond three months without also addressing whether the detention itself is legally justified. It would be illogical for a tribunal to assess the propriety of a detention lasting more than three months without simultaneously examining whether sufficient cause exists for the detention at all. The Court therefore held that the advisory board mentioned in clause (4) is the constitutional mechanism created for reviewing preventive‑detention orders based on the representations made by the detained persons. This interpretation is reflected in sections 9 and 10 of the impugned Act, and the Court considered it the correct view. Consequently, the petitioner cannot claim that his case must be decided by any other impartial tribunal under article 21 or any other provision.

The Court further indicated that it preferred the view expressed by Justice Fazl Ali. It then referred to the case of Makhan Singh Tarsikka v. State of Punjab, reported in [1952] S.C.R. 368, which also involved a writ of habeas corpus for a person detained under the same Act as it stood in July 1951. In that case the initial detention order had fixed the period of detention before the matter was referred to the advisory board. The Court held that such a fixation was illegal because the Act makes it clear that only after the advisory board has reported that the detention is justified should the Government decide the period of detention. Accordingly, fixing the period of detention in the initial order, as occurred in the present case, contradicted the scheme of the Act and could not be supported, leading to the allowance of the petition for the writ. The Court noted that the Makhan Singh Tarsikka decision did not concern article 22(4)(a) and therefore did not decide the present question, providing no assistance. Finally, the Court mentioned Dattatreya Moreshwar Pangarkar v. State of Bombay, another habeas‑corpus application concerning the same Preventive Detention Act. In that matter the initial order omitted any mention of a detention period, the case was referred to the advisory board, which found sufficient cause for detention, and the Government subsequently issued a confirmatory order. The issue there was whether this confirmatory order was valid.

The Court observed that, according to the scheme of the Preventive Detention Act, the length of a person’s detention could be determined only after the Advisory Board had examined the case and reported whether there was sufficient cause for detention. Consequently, any order that fixed the period of detention before the Advisory Board’s report was contrary to the provisions of the Act. In the present matter, the initial detention order had already specified a period of detention, and the Court therefore held that such an order could not be sustained. On that basis, the petition seeking a writ of habeas corpus was allowed. The Court further noted that the earlier decision in Makhan Singh Tarsikka v. State of Punjab, which also involved a habeas corpus application under the same Act as it stood in July 1951, was decided on the ground of Article 22(4)(a). Because that case dealt specifically with the constitutional provision and not with the statutory scheme governing the determination of detention periods, the Court found that it did not provide any assistance for resolving the issue before it.

The Court then turned to the decision in Dattatreya Moreshwar Pangarkar v. State of Bombay, another habeas corpus case arising under the Preventive Detention Act. In that case, the initial detention order did not mention any fixed period; after the matter was referred to the Advisory Board, the Board reported that there was sufficient cause for detention, and the Government subsequently issued a confirmatory order that affirmed the original detention. The question before the Court was whether the confirmatory order, under section II(1)(a) of the Act as it stood in 1952, was required to state the period of detention. The Court held that the omission of a specific period in the confirmatory order did not render the order invalid. The Court also reiterated observations made by Justice Mukherjea, noting that the phrase “such detention” in Article 22(4)(a) referred to detention in its general sense. It was settled that the detaining authority need not, and indeed must not, specify the period of detention in the original order under section 3(1) of the Act, because doing so could prejudice the detainee’s case before the Advisory Board. The Advisory Board’s role was limited to expressing an opinion on whether sufficient cause existed for detention, not on determining the length of detention. Once the Board reported that sufficient cause existed, the decision as to the appropriate period of detention was left entirely to the Government, which could fix the period as it deemed fit under the relevant statutory provision.

Under section 11(1) of the Preventive Detention Act the Government may confirm the original detention order and may extend the detention of the individual for any period that it deems appropriate. It was argued that Justice Mukherjea had meant to say that the only function of the Advisory Board was to express an opinion on whether the detention itself was justified in a general sense. While that proposition may be correct, Justice Mukherjea was interpreting the provisions of the Preventive Detention Act, which expressly contains that requirement. He was not stating that Article 22(4)(a) of the Constitution conveyed the same meaning. In fact, the passages from his earlier judgment in Gopalan’s case (1) demonstrate that his view of Article 22(4)(a) was different. Moreover, the learned judge did not address the issue of whether the relevant clause of the Preventive Detention Act was ultra‑violet the Constitution. For the reasons previously explained, the fact that the executive decides the length of detention does not imply that the Constitution does not require the Advisory Board’s opinion when a detention extending beyond three months is contemplated. Reference was made to a paragraph in Justice Mahajan’s judgment (2) at page 637 of the report, which states: “Under the Constitution, the detention of a person under any law providing for preventive detention cannot be for a period of more than three months unless the Advisory Board is of the opinion that there is sufficient cause for the detention of the person concerned.” (1) [1950] S.C.R. 88, (2) [1952] S.C.R. 612. Some suggested that Justice Mahajan was indicating that the law only needed to obtain the Advisory Board’s opinion on the justification of the detention itself, irrespective of whether the detention period exceeded three months. It is clear, however, that Justice Mahajan was not addressing the interpretation of the words “such detention.” He was not deciding whether those words referred to detention in general or to detention for a period longer than three months. His observations in Gopalan’s case (1), which I have already cited, indicate that the Advisory Board must render an opinion on whether a detention exceeding three months is justified. Consequently, it cannot be said that Justice Mahajan held that the phrase “such detention” in Article 22(4)(a) merely means preventive detention without reference to its duration. I therefore conclude that neither the judgment in Makhan Singh’s case (2) nor the judgment in Dattatreya Moreshwar Paugarkar’s case (3) contradicts the view I have adopted. In the result, the appeal is allowed. (1) [1950] S.C.R. 88. (3) [1952] S.C.R. 612. (2) [1952] S.C.R. 368.