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: Not extracted

Decision Date: 17 September, 1957

Coram: A.K. Sarkar, J.L. Kapur, S.K. Das

In this appeal, filed by special leave, the petitioner was Puran Lal Lakhanpal. On 21 July 1956, the Government of India, acting through the Ministry of Home Affairs, issued an order of preventive detention against the petitioner. The order stated that, in order to prevent the petitioner from acting in a manner prejudicial to the security of India and to the relations of India with foreign powers, it was necessary to make the detention order. The order then invoked the powers conferred on 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. Accordingly, the Central Government ordered that Shri Puran Lal Lakhanpal, son of Shri Diwan Chand Sharma, be detained. The petitioner was arrested and taken into custody on the same day. On 24 July 1956, the grounds for his detention were communicated to him under section 7 of the same Act. The case was then forwarded to an Advisory Board constituted under section 8 of the Act. After hearing the matter, the Advisory Board reported that, in its opinion, there was sufficient cause for the petitioner’s detention. Relying on that report, the Central Government confirmed the detention order on 20 August 1956, declaring that the petitioner would remain in detention for a period of twelve months from the date of his initial detention. This confirming order was issued under sub-section (1) of section 11 of the Act.

Before the expiry of the twelve-month period, the petitioner challenged the legality of his detention before the Punjab High Court and also before this Court, seeking a writ of habeas corpus. The petition before this Court was dismissed; consequently, no further discussion of that petition is necessary. In the petition before the Punjab High Court, filed under Article 226 of the Constitution, the petitioner was permitted to raise an additional ground, namely that sub-section (1) of section 11 of the Act was unconstitutional because it violated Article 22(4)(a) of the Constitution. A Division Bench of the Punjab High Court considered this constitutional question and, by an order dated 24 September 1956, held that sub-section (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 dealt with the petition on its merits and dismissed it by an order dated 26 September 1956. The petitioner then unsuccessfully sought leave to appeal to this Court, but eventually obtained special leave to appeal against the two Punjab High Court orders dated 24 September and 26 September 1956. The appellant personally argued his case on 22, 23 and 24 May 1957. At the conclusion of the arguments on the last day before the Court’s vacation, the majority of the Court informed the appellant that his appeal was dismissed, indicating that reasons would be provided later. The Court now sets out those reasons. The primary point raised by the appellant in support of his appeal was the constitutional validity of sub-section (1) of section 11 of the Act, which he contended did not conform to the constitutional mandate set out in sub-clause (a) of clause …

After the Punjab High Court had rejected his request for leave to appeal to this Court, the appellant subsequently filed another petition before this Court seeking and obtaining special leave to appeal against the two orders of the Punjab High Court, namely the order dated 24 September 1956 and the order dated 26 September 1956.

The appellant then appeared in person and presented his arguments before the Court on 22, 23 and 24 May 1957. When the arguments were concluded on the final day of the sitting before the Court went on vacation, the Court informed the appellant that the majority of the Judges had decided to dismiss his appeal. The Court further conveyed that the reasons for that decision would be provided at a later stage, and the present paragraphs set out those reasons.

The principal issue raised by the appellant in support of his appeal concerns the constitutionality of subsection (1) of section 11 of the Act. The appellant contended that this subsection is inconsistent with the constitutional requirement embodied in sub-clause (a) of clause (4) of Article 22 of the Constitution. Consequently, the Court’s primary task was to place the constitutional provision invoked by the appellant alongside the statutory provision under challenge and to determine whether the statute conforms with the Constitution.

Article 22, to the extent relevant for the present determination, reads as follows:

“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 authorise 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 of 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 was empowered to enact a law that could define (a) the situations and the types of cases in which a person might be detained for a period exceeding three months under any preventive-detention law without first obtaining the opinion of an Advisory Board as required by sub-clause (a) of clause (4); (b) the maximum length of time for which any person could be detained in any class or classes of cases under any preventive-detention law; and (c) the procedure that an Advisory Board must follow when conducting an inquiry under sub-clause (a) of clause (4). Section 11 of the statute that was being challenged on constitutional grounds provided that, in any case where the Advisory Board reported that, in its opinion, there was sufficient cause for the detention of a person, the appropriate Government could confirm the detention order and continue the detention for such period as it thought appropriate. Conversely, the section stated that, in any case where the Advisory Board reported that, in its opinion, there was no sufficient cause for the detention, the appropriate Government had to revoke the detention order and cause the person to be released immediately.

The appellant argued that the phrase “such detention” appearing in sub-clause (a) of clause (4) of Article 22 referred not only to the original preventive-detention order but also to any detention that extended beyond three months. Accordingly, the appellant maintained that the Advisory Board, when making its report, was required to state its opinion that there was sufficient cause not merely for the initial detention but also for the continued detention for a period longer than three months. The appellant claimed that the Advisory Board had failed to give such an opinion in the present case and that sub-section (2) of section 10 of the Act merely required the Board to indicate whether it thought there was sufficient cause for the detention of the appellant, without addressing the length of detention. On this basis, the appellant contended that sub-section (1) of section 11, by allowing the appropriate Government to extend the detention beyond three months without a specific opinion from the Advisory Board that there was sufficient cause for the longer period, was beyond the authority of Parliament; it was therefore ultra vires because it did not conform to sub-clause (a) of clause (4) of Article 22 or give effect to the true meaning of the expression “such detention.” The respondent, on the other hand, argued that the expression “such detention” in sub-clause (a) of clause (4) of Article 22 referred back to the term “preventive detention” used at the beginning of clause (4). Under this interpretation, the Advisory Board’s duty was only to give its opinion on whether there was sufficient cause for the detention of the person concerned, without any requirement to determine the period of detention. Consequently, the respondent maintained that the Board’s failure to state in its report that there was sufficient cause for detention beyond three months did not violate the constitutional mandate contained in the sub-clause.

In this matter, the Court observed that the Advisory Board is required only to state whether there is sufficient cause for the detention of the individual, and that the Board bears no obligation to decide the length of the detention; consequently, the Board’s omission of any comment in its report that there is sufficient cause for detention beyond three months does not contravene the constitutional requirement embodied in the sub-clause in question. The Court then noted that it must determine which of the opposing submissions is correct, and that no precedent directly resolving this precise question has been brought to its attention. Nevertheless, the Court identified several observations made in A.K. Gopalan v. The State of Madras, reported in 1950 S.C.R. 88 at page 117, which discuss the meaning and effect of sub-clause (a) of clause (4) of Article 22 and therefore required reference. At the cited page, Chief Justice Kania explained that Article 22(4) begins with a double negative, which, when expressed positively, means that any law providing for preventive detention for a period exceeding three months must contain a provision establishing an advisory board composed of persons possessing the qualifications listed in sub-clause (a), and that the board must submit its opinion before the three-month period expires as to whether there is sufficient cause for such detention. He added that, if read in isolation and apart from the remaining provisions of Article 22, the clause would apply to both Parliament and State legislatures. The proviso to the clause, Chief Justice Kania continued, declares that even if the advisory board opines that there is sufficient cause for detention beyond three months, the detention may not be permitted beyond the maximum period, if any, prescribed by Parliament under Article 22(7)(b). He further observed that the entire sub-clause becomes inoperative by virtue of Article 22(4)(b) with respect to any preventive detention law enacted by Parliament under clauses (7)(a) and (b). Since the impugned legislation is an act of Parliament purporting to be so made, Chief Justice Kania concluded that clause 22(4) has no operation and could be set aside for the present discussion. The Court noted that his observations were made with reference to the 1950 Act, before the amendments introduced from 1951 onward, and that those observations appear to establish three propositions: first, that clause (4) of Article 22, when expressed affirmatively, refers to a law authorising preventive detention for a period longer than three months; second, that the phrase “such detention” likewise refers to detention beyond three months; and third, that clause (4) of Article 22 did not apply to the 1950 Act as it then stood. The Court indicated that it would later demonstrate that the first two propositions do not support the appellant’s contention, while the third proposition concerned sections 9 and 12 of the 1950 Act as it existed at that time.

It was observed that, under the law as it exists today, every detention order must be presented to the Advisory Board in accordance with section nine of the Act, and the Advisory Board is required to give a report on each such order pursuant to section ten. Although section eleven-A limits the maximum period of detention that may follow a confirmed order under section eleven to twelve months from the date of detention, the present Act does not contain any provision specifying the circumstances or the classes of cases in which a person may be detained for a period exceeding three months without first obtaining the Advisory Board’s opinion. Because of this omission, the appellant argued that the last point made in the earlier observations of Kania C.J. no longer applied after the amendments were made to the 1950 Act. The Court proceeded on the basis that sub-clause (a) of clause four of Article twenty-two is applicable to the Act as amended, and on that basis it held that there is no inconsistency between that sub-clause and the contested provisions of the Act, a conclusion it later explained in detail.

In a dissenting judgment in the earlier Gopalan case, Justice Fazl Ali expressed his views on clause four of Article twenty-two. He noted at pages one-seventy and one-seventy-one of the report that the phrase “such detention” at the end of sub-clause (a) could be understood in two ways: first, that it referred to preventive detention; second, that it referred to detention for a period longer than three months. If the first meaning were correct, the Advisory Board’s role would be limited to examining the merits of each individual case and merely reporting whether there was sufficient cause for detention. Under the second meaning, the Advisory Board would be called upon to advise the Government on whether there was sufficient cause to continue a detention beyond three months. Justice Fazl Ali indicated a preference for the second interpretation, emphasizing that detaining a person for an extended period without any inquiry or trial is a grave matter. He observed that Article twenty-two (4)(a) permits such prolonged detention only after a report from the Advisory Board, and that the safeguard loses its purpose if the Board does not consider the crucial question of whether detention beyond three months is justified. Consequently, he argued that the Board must submit a report directly connected to the purpose of the requirement, thereby ensuring that the protective intention of the provision is given real meaning and effectiveness.

It was observed that the advisory board is required to submit its report before the expiry of three months, and consequently the board may file its report on the eighty-nine-th day of detention. The observation characterised it as unreasonable, even farcical, to require an advisory board, after a person has already been detained for eighty-nine days, to determine whether the original decision to detain him was justified. The contrary view was that deciding whether a prolonged detention—meaning detention for more than three months—was justified necessarily involves first ascertaining whether the detention itself was justified at all. Only by adopting this broader interpretation could the provision achieve real meaning and effectiveness. Since the provision functions as a protective safeguard, the reasoning favoured the interpretation that is most favourable to the person detained and that aligns with the purpose of the safeguard. The counsel for the appellant argued that these observations supported the appellant’s contention.

Justice Patanjali Sastri, writing before his elevation to the Supreme Court, expressed a view that differed from that of Justice Fazl Ali in the earlier Gopalan case. In his report, at pages two hundred nine and two hundred ten, he recounted the argument advanced by counsel that the phrase “sufficient cause for such detention” in sub-clause (a) of clause (4) referred specifically to detention beyond three months, a view supposedly reinforced by the language of sub-clause (a) of clause (7), which authorises Parliament to prescribe the circumstances and 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. According to that argument, the combined effect of clauses (4) and (7) was that no individual could be detained for a period exceeding three months unless an advisory board first opined that there was sufficient cause for such extended detention, except where Parliament itself enacted a law permitting detention beyond three months without the board’s opinion. The counsel therefore suggested that both clauses dealt solely with the duration of preventive detention, and that the advisory board created by those clauses was concerned only with that duration. Justice Patanjali Sastri rejected this position. He explained that the words “such detention” in sub-clause (a) should be read as referring back to the preventive detention mentioned in clause (4) and not to detention for a period longer than three months. He observed that an advisory board, which must be composed of judges or lawyers, would not be suitably placed to decide how long a person under preventive detention—particularly when the reasons for detention relate to defence matters—should remain detained. Such a determination, he noted, is the exclusive domain of the executive authorities, specifically the Department of Defence, which alone possesses the requisite data and responsibility for the nation’s defence. Consequently, the role of the advisory board, as a safeguard against abuse of power, is limited to assessing whether the detention is justified and not arbitrary or mala fide.

The Court observed that the requirement for the advisory board to submit its report before the expiry of three months did not imply that the board’s sole function was to decide whether detention should extend beyond that period. The Court explained that a reasonable interval must elapse before the board can file its report because the grounds for detention must first be communicated to the detained person, who must then be given an opportunity to make a representation to the detaining authority. That representation has to be forwarded to the board through the proper departmental channel. Each of these procedural steps may consume time in the ordinary course of administration, and consequently the three-month period was likely intended as a reasonable ceiling within which the board could be required to finalize its report. The Court held that these observations directly contradicted the appellant’s contention. The Court further noted that a full appreciation of the scope and effect of clause (4) of Article 22 requires consideration of the entire scheme of Article 22, which safeguards individuals against arrest and detention in specified circumstances. Clauses (1) and (2) of Article 22 prescribe safeguards for arrest and detention, while clause (3) expressly excludes from their operation any person arrested or detained under a law providing for preventive detention, thereby placing preventive-detention laws in a distinct category dealt with by clauses (4) to (7). The Constitution confers on Parliament and the State Legislatures the power to enact preventive-detention legislation, but that power is not unfettered; it is subject to the controls imposed by clauses (4), (5), (6) and (7) of Article 22. Although the Constitution does not fix a maximum period of detention, Parliament may prescribe such a period by law. The Constitution anticipates that any law authorising detention for a period exceeding three months must be subject to safeguards specified in clause (4) of Article 22, which mandates that the case of a person detained under such a law be examined by an advisory board. The advisory board’s duty is to report whether there is sufficient cause for the detention. If the board finds the detention justified, the detaining authority alone decides the duration of detention; if the board finds the detention unjustified, the detained person must be released. Clause (4) does not require the advisory board to determine whether the detention should last beyond three months; its function is limited to assessing the overall justification of the detention, and the establishment of the board serves as an adequate safeguard against arbitrary detention.

The Court observed that a law of preventive detention which authorises detention for a period exceeding three months presents a specific issue. The question presented before the Advisory Board concerns the fact that a particular individual is detained, and not the length of time for which he may be detained. Clause 7 of Article 22 of the Constitution constitutes an exception to clause 4 of the same article. Under this exception, Parliament alone may enact a preventive-detention law that authorises detention of an individual for more than three months without obtaining the opinion of an Advisory Board, provided that the enacted law specifies the circumstances and the class or classes of cases in which such longer detention may be imposed.

The Court noted that the Constitution does not treat detention for a period of three months or less as sufficiently serious to require the safeguard of an Advisory Board’s report affirming that there is sufficient cause for detention. Accordingly, whenever a law authorises detention for a period greater than three months, the Constitution mandates the establishment of an Advisory Board for every such case. When a detained person’s case is placed before the Advisory Board under a law of this kind, it must be presumed that the Board is aware that, if it reports that the detention is justified, the detainee may be held for a period longer than three months, up to the maximum term prescribed by the law. The expression “such detention” in Article 22(4)(a) therefore refers to preventive detention itself, not to the specific duration of the detention.

The Court further explained that clause 4 of Article 22 imposes a prohibition on any law that provides for detention for more than three months unless that law contains a provision for an Advisory Board. Clause 5 requires that the grounds of detention be furnished to the detainee and that the detainee be given an opportunity to make a representation against the order of detention. However, these safeguards are subject to clauses 6 and 7. Under clause 6, facts whose disclosure the detaining authority considers contrary to the public interest need not be disclosed. Under clause 7, Parliament may prescribe the circumstances and the class or 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.

Consequently, the Court held that the Constitution provides discretion to the Executive to withhold certain facts in particular situations and simultaneously empowers Parliament to define the categories of cases where reference to an Advisory Board is not required. In this sense, both the requirement to furnish grounds of detention and the report of the Advisory Board operate as limited safeguards. Because the detention in question is of a preventive nature, the Executive must necessarily decide whether a person should be detained and the appropriate period of detention. It could not have been the intention of the Constitution to vest the power to determine the necessity of detaining a specific individual in the Advisory Board, leaving the Executive without that essential authority.

The Court observed that the authority to decide whether a detention should last for three months or longer cannot be transferred to another body, such as the Advisory Board. By its very nature the decision about the length of detention must rest with the detaining authority, because that authority bears the responsibility for the detention. The reference to the Board therefore functions only as a safeguard against arbitrary or high-hand action by the Executive. The Constitution created this mechanism so that the Executive’s decision can be reviewed on the basis of the detainee’s representation, the grounds of detention, and, where the order is issued by an officer, the officer’s report. This safeguard does not limit the Executive’s discretion in carrying out its duties related to preventive detention; rather, it is intended to prevent misuse of power.

Turning to the statutory scheme under consideration, the Court explained that a detention order is issued under section 3 of the Act. When an officer makes such an order under sub-section (2) of section 3, a report must be sent to the State Government to which the officer is subordinate, and the order remains effective for no more than twelve days unless the State Government approves it within that period. Section 7 requires that the grounds of detention be communicated to the detainee as soon as possible, but no later than five days after the detention takes effect. Section 8 deals with the constitution of an Advisory Board. Under section 9, whenever a detention order is made under the Act, the appropriate Government must, within thirty days of the detention, place before the Advisory Board both the grounds on which the order was made and any representation made by the detainee. Section 10 prescribes the procedures for the Advisory Board and mandates that the Board submit its report to the appropriate Government within ten weeks from the date of detention. Sub-section (2) of section 10 requires that the Board’s report contain a separate part indicating the Board’s opinion on whether there is sufficient cause for the detention of the person concerned. Section 11, which the Court had previously quoted in full, follows thereafter. The Court noted that the overall scheme of the Act has been explained in several earlier decisions. In Makhan Singh Tarsikka v. State of Punjab, reported in [1952] SCR 368 at page 370, the Court held that, notwithstanding the position under the original 1950 Preventive Detention Act, after the amendment of 1951 the Government must determine the period of detention only after the Advisory Board to which the case is referred has reported that the detention is justified. Chief Justice Patanjali Sastri observed that it is therefore clear that...

In the judgment the Court emphasized that the Government may fix the length of a preventive detention only after the Advisory Board, to which the case has been referred, has reported that the detention is justified; it may not do so beforehand. Consequently, the Court held that the practice of specifying the period of detention in the initial order, as occurred in the present case, violated the statutory scheme and could not be sustained. The Court then referred to the decision in Dattatreya Moreshwar Pangarkar v. State of Bombay, reported in 1952 S.C.R. 612 at page 626, where Mukherjea J., speaking as a judge, observed that the Supreme Court has settled the rule that the detaining authority is not required to state any period of detention when it makes the original order under section 3(1) of the Preventive Detention Act. Moreover, the judge explained that an order that actually contains a specified period is void and unlawful because it may prejudice the detainee’s case when the matter is later considered by the Advisory Board. The Advisory Board, the Court noted, is empowered solely to express its opinion on whether there is sufficient cause for detaining the individual; it is neither called upon nor competent to comment on the length of the detention. After the Advisory Board renders its view that there is sufficient cause, the subsequent action is left entirely to the appropriate Government, which may, under section 11(1) of the Act, “confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.” The judge interpreted the phrase “for such period as it thinks fit” to imply that, upon receiving the Advisory Board’s report, the detaining authority must decide whether to confirm the original detention order and, if it chooses to confirm, determine the further period for which the detention should continue. This, the judge stressed, is the appropriate stage for such a decision because the investigation contemplated by the Preventive Detention Act would then have concluded, leaving the Government in possession of all the relevant material concerning the detainee. The Court further quoted the same judgment at page 637, where the learned judge reiterated that, under the Constitution, a person detained under any preventive-detention law cannot be held for more than three months unless the Advisory Board is of the opinion that there is sufficient cause for the longer detention. The Constitution itself sets the maximum limit for the initial detention, and any extension beyond three months is permissible only on the basis of the Advisory Board’s report. In light of these observations, the Court concluded that the scheme of the Act is clear: the Act permits a possible detention of more than three months, but the period of such extended detention may be fixed only after the Advisory Board has reported its opinion.

The Court observed that once an order of detention is issued, the matter must be referred to the Advisory Board. Only after the Advisory Board prepares its report does the appropriate Government determine the length of detention in accordance with subsection (1) of section 11 of the Act. After considering the relevant statutory scheme, the Court held that subsection (1) of section 11 of the Act does not conflict with any provision of Article 22 of the Constitution and is therefore valid.

The Court then turned to the merits of the case as raised by the appellant. The appellant argued that the grounds of detention communicated to him were vague, with the exception of ground number two, and that these grounds failed to provide him with a realistic opportunity to make an effective representation, a right that is guaranteed under clause (5) of Article 22. The appellant listed the specific grounds, other than ground number two, as follows: (1) that for the past two years he had been in constant contact with foreign correspondents in India and 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 the security of the State; (3) that he was in constant touch with certain persons in Pakistan and in the Pakistani-occupied part of Jammu and Kashmir who were hostile to India, and that he assisted those persons in activities prejudicial to India’s security; (4) that he received financial assistance from persons in Pakistan and the Pakistani-occupied part of Jammu and Kashmir for supporting and furthering the aforementioned prejudicial activities; (5) that he maintained regular connections with persons in India who were engaged in propagating false propaganda against India concerning Kashmir, attended their secret meetings, and planned actions and propaganda that were prejudicial to India’s security; and (6) that the Central Government was satisfied that he was likely to act in a manner prejudicial to India’s security and to India’s relations with foreign powers, and consequently, to prevent such conduct, the Government had passed 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 already been mentioned.” The appellant contended that by refusing to disclose any such facts or particulars concerning dates, persons and places, the detaining authority had effectively deprived him of the valuable right guaranteed under clause (5) of Article 22. The appellant further argued that this contention was supported by a recent decision of this Court.

In the precedent of Lawrence Joachim Joseph D’Souza v. The State of Bombay [[1956] S.C.R. 382] the Court held that a detainee’s entitlement to receive facts or particulars is limited by the restriction contained in clause (6) of Article 22. Consequently, even when the communicated grounds are not as precise or specific as the detainee might desire, the authority that made the detention order retains the power to withhold any facts or particulars that it believes would be detrimental to the public interest. Having exercised that privilege in the present matter, the appellant could not maintain, apart from alleging mala-fides, that the grounds failed to disclose the necessary facts or that, lacking such facts, he was unable to make an effective representation. In the earlier decision of The State of Bombay v. Atma Ram Sridhar Vaidya [[1951] S.C.R. 167] the Court unanimously observed that, under section 3 of the Act, the satisfaction of the appropriate authority is the essential condition for an order of detention. If the grounds on which the authority claims to be satisfied have a rational connection to the objects that the law seeks to prevent, the Court may not question that satisfaction except on the basis of mala-fides. The majority further explained that clause (5) of Article 22 grants two rights to a detainee: first, the right to be informed of the grounds on which the detention order is based; second, the right to be given the earliest opportunity to make a representation against the order. When the supplied grounds are rationally linked to the objects mentioned in section 3, the first right is fulfilled. However, the right to make a representation presupposes that the detainee possesses sufficient information to enable such a representation; if the grounds are insufficient for that purpose, the detainee may invoke the second right. The second right remains subject to the privilege articulated in clause (6), and, as emphasized in the D’Souza case, the duty to furnish grounds and to decide whether disclosing any facts would be against the public interest resides exclusively with the detaining authority. Consequently, the Court found it unnecessary to entertain the theoretical argument about whether Article 22(6) overrides the constitutional right under Article 22(5) to the extent of eliminating all particulars and rendering the grounds wholly vague. In the facts of the present case, although the grounds provided to the appellant were not as precise and definite as might be preferred, they nonetheless afforded him a sufficient opportunity to exercise the right conferred by clause (5) of Article 22.

The Court noted that the appellant had been afforded the right prescribed by clause five of article twenty-two of the Constitution. With respect to ground number two, the appellant set out several objections. The ground communicated to the appellant read as follows: “That you addressed a Press Conference at New Delhi on the eighteenth day of February, nineteen fifty-six, 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 hereto) 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 and to the relations of India with foreign powers. Extracts of such statements are given below: (then follow the extracts).” The appellant argued, first, that detention on this ground was of a punitive rather than a preventive nature; second, that the ground was irrelevant to the objects for which he had been detained, namely the security of India and its relations with foreign powers; and third, that there were verbal inaccuracies in the wording of the ground, particularly concerning the events at the Press Conference of 18 February 1956. The Court examined each of these contentions and found none to be substantive. It held that although the ground undeniably referred to the incident of 18 February 1956, such reference did not transform the detention into a punitive measure, because the authority must consider the appellant’s future conduct as inferred from his past actions. The Court further concluded that the ground bore a rational connection to the stated objects of detention, since preventing the appellant from acting in a manner prejudicial to India’s security and its foreign relations fell squarely within the scope of the ground. Regarding the alleged verbal inaccuracies, the Court observed that the differences were inconsequential. For example, the extract attached to 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 etc.” In the appellant’s actual speech he said: “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 etc.” The only variation was the substitution of the word “no” for “not”; there was no material alteration in meaning. Consequently, the Court rejected the claim that the detaining authority had not applied its mind to the grounds communicated to the appellant.

Finally, the appellant pleaded that the order of detention had been issued in bad faith. The Punjab High Court had examined this claim in detail when it heard the appellant’s petition. In his affidavit the appellant cited several of his activities beginning in 1954 and referred to events that had taken place between the years 1954 and 1956. He also alleged that the Prime Minister and the Home Minister had made certain statements, and he asserted that both ministers were annoyed with him because of his activities. On the basis of this alleged annoyance, the appellant argued that the detention order was not genuine. The Court found that this argument could not be accepted. It agreed with the High Court’s conclusion that the appellant’s activities and the events of 1954-1956, as outlined by him, did not demonstrate that the detention order had been issued for any ulterior motive or for any purpose other than those expressly mentioned in the order. The Court observed that, for the question of mala fides, it is irrelevant whether the authorities liked or disliked the appellant’s conduct; the only relevant inquiry is whether the detention was effected for a purpose different from that specified in the order. After reviewing the material placed before it, the Court stated unequivocally that no evidence of bad faith had been established.

The appeal before this Court arose from an application for the issue of a writ of habeas corpus. The Court noted that the appeal could be decided on a single ground, and it intended to address only that ground in the present judgment. On 21 July 1956, the appellant was taken into custody pursuant to a detention order issued by the Government of India under the Preventive Detention Act, 1950 (Act IV of 1950). Three days later, on 24 July 1956, the appellant was served with the grounds on which the detention order had been made, as mandated by the Act. The appellant subsequently filed a representation contesting the order, and this representation was examined by the Advisory Board constituted under the Act. On 22 August 1956, the appellant received another order from the Government of India stating that the Advisory Board had reported, in its opinion, that there was sufficient cause to detain the appellant. That order further declared that, in light of the Advisory Board’s report, the Government confirmed the original detention order and ordered 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 detention orders by moving the High Court of Punjab for a writ directing his release. The High Court dismissed the petition, and on the basis of that dismissal the appellant’s appeal was brought before this Court.

In this appeal the petitioner attacked the legality of the detention orders, contending that the section of the Preventive Detention Act of 1950 on which those orders were based exceeded the powers granted by the Constitution. The petitioner argued that the provision of the Act was unconstitutional, or ultra vires, and therefore the detention orders should be set aside. After examining the submissions, the Court concluded that the objection to the Act was well founded; consequently the Court found it unnecessary to address the other arguments raised by the appellant. The petitioner’s challenge was anchored on article twenty-two, clause four, sub-clause (a) of the Constitution, and the Court reproduced the relevant portion of that provision. The article states that no law providing for preventive detention may authorize the detention of a person for a period longer than three months unless, before the expiry of that three-month period, an Advisory Board composed of persons who are, have been, or are qualified to be appointed as Judges of a High Court, reports that in its opinion there is sufficient cause for such detention. The article further provides that nothing in this sub-clause shall permit detention beyond the maximum period prescribed by any parliamentary law under clause seven, sub-clause (b). Clause seven of the Constitution empowers Parliament to prescribe, by law, (a) the circumstances and categories of cases in which a person may be detained for a period longer than three months without obtaining the Advisory Board’s opinion, and (b) the maximum period for which a person may be detained under any preventive-detention law. Accordingly, unless Parliament enacts a law that specifically provides otherwise, every preventive-detention statute must comply with the requirements of article twenty-two, clause four, sub-clause (a). In the present case Parliament had not passed any law altering that requirement. Therefore, for the Preventive Detention Act of 1950 to be consistent with the Constitution, it must contain a provision that obliges the Advisory Board to report before the end of three months that there is sufficient cause for continued detention when the law is used to detain a person beyond three months. The appellant argued that the Act failed to incorporate this requirement. Although the language of the article is somewhat opaque, the Court, as accepted during oral argument, understood that the duty to obtain the Advisory Board’s report must be expressed within the preventive-detention law itself and cannot be supplied merely by the constitutional provision. The Act in question authorises a maximum detention period of twelve months from the date of detention, thereby qualifying as a preventive-detention law that permits detention for a period longer than three months. Consequently, if the Act is to be employed to hold a person for more than three months, it must contain explicit provisions satisfying sub-clause (a) of article twenty-two, clause four, by mandating that an appropriately constituted Advisory Board report that there is sufficient cause for such extended detention. The Court therefore identified the necessity for the Act to include a clear statutory requirement that an Advisory Board, formed as stipulated, must give its opinion on the sufficiency of cause before any detention exceeding three months can lawfully continue.

In this matter the Court observed that the statute must contain a provision stating that when detention exceeding three months is to be ordered, an Advisory Board, formed in the manner prescribed, must report that, in its opinion, there is sufficient cause for such detention. This requirement was not contested. The difficulty arose from the interpretation of the phrase “such detention.” The appellant argued that the phrase referred specifically to detention for a period longer than three months, and consequently a law permitting preventive detention for more than three months must obligate the Advisory Board to state that there is sufficient cause for detention of that longer duration. The Act under consideration indeed provides for the constitution of the Advisory Board and mandates that all detention cases, regardless of their length, be referred to the Board for its opinion on whether sufficient cause exists. However, the Act does not stipulate that when the intention is to detain a person for more than three months, the Board must affirm that there is sufficient cause for detention for a period exceeding three months. The relevant provision is Section 10(2), which reads: “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.” If the appellant’s interpretation is correct, the provisions allowing detention beyond three months would be ultra vires. The Court then examined the meaning of the words “such detention.” Applying a pure construction, the Court found that the phrase must denote detention for a longer period than three months. The term “such” signifies “of the kind or degree already described,” and among the definitions provided by the Oxford Dictionary, this was the only one fitting the context. Counsel for the respondent offered no alternative meaning. The only kind of detention described earlier in the clause is detention for a period longer than three months; consequently, the Court felt compelled to accept the appellant’s contention. The Solicitor-General, opposing the appeal, maintained that “such detention” could be understood either as detention generally or as detention for a period longer than three months and advanced reasons for preferring the former meaning. The Court indicated that it would address those reasons later but expressed its inability to agree that the words could bear two meanings.

Clause (4) envisions a law that provides for preventive detention, but it does not itself empower the legislature to create such a law. The power to enact preventive-detention legislation lies within the competence of Parliament as well as of the State legislatures, as established by Article 246 of the Constitution together with item 9 of List I and item 3 of List III in the Seventh Schedule. After assuming that a preventive-detention law exists, clause (4) proceeds to prescribe that the said law may not permit the detention of any person for a period exceeding three months unless the Advisory Board reports that, in its opinion, there is sufficient cause for such detention. In effect, clause (4) imposes a restriction on the authority to pass preventive-detention statutes. This principle was articulated by Das J. in A.K. Gopalan v. The State of Madras ([1950] S.C.R. 88), where he observed at page 324 that “Article 21 and 22 have put a limit on the power of the State given under Art. 246 read with the legislative lists.” Consequently, the sole object of clause (4) is to regulate detention that extends beyond three months under a preventive-detention statute, a statute that the clause assumes to exist. Therefore, the expression “such detention” must necessarily denote detention for a period longer than three months; there is no other referent within the clause. The clause does not contemplate preventive detention without reference to duration, nor does it refer to the preventive-detention law itself. While the underlying law might, in principle, permit detention for a shorter term, such shorter detention is neither mentioned nor imagined by clause (4). Hence, the possibility that “such detention” could refer to a shorter period does not arise.

The Solicitor-General argued that the words “such detention” could be understood in two ways: either as referring generally to preventive detention, or specifically to preventive detention for a period longer than three months. He suggested that if the expression were limited only to detentions exceeding three months, individuals held for a shorter duration would be denied the protection of an Advisory Board opinion and would lose the opportunity to be released should the Board find insufficient cause for their detention. Although that consequence would indeed follow, the language of clause (4) contains no indication that such a safeguard was intended. In the absence of textual support for the broader safeguard, the argument fails, regardless of any desire the Court might have to extend protection to all detentions. If the Constitution had intended to provide that safeguard uniformly, it would not have stipulated that the Advisory Board’s report must be submitted before the expiry of the three-month period. The lack of any textual basis for the Solicitor-General’s broader construction leads to the conclusion that the clause was not meant to confer the safeguard he described.

The Court observed that the Constitution required the Advisory Board to submit its report before the expiry of three months. It cited the judgment of Fazl Ali, J. in Gopalan’s case, reported in the 1950 Supreme Court Reporter at page 171, where he remarked: “Under Art. 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-nine-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 initial detention was justified.” The Court held that the Constitution could not have contemplated such a situation and therefore did not intend that every case of detention, irrespective of its duration, be placed before the Advisory Board. Consequently, the safeguard that the learned Solicitor-General sought to extend to all detentions was not provided by the Constitution. The Court further noted that the view expressed by Fazl Ali, J. was shared by all the other judges who heard Gopalan’s case, with the sole exception of Patanjali Sastri, J.

In support of this conclusion, the Court set out the opinions of the remaining judges. Chief Justice Kania, writing at page 118 of the Report, stated that a reading of clauses (4) and (7) of article 22 together implied that preventive detention of less than three months could be effected without an Advisory Board, provided the legislation fell within the competence of Parliament or the State Legislature. Justice Mahajan, at page 228, explained that if the Constitution had required every preventive-detention law to satisfy a reasonableness test, it would not have needed to specify the precise scope of the limitation in article 22 or to prescribe a procedure for such laws; many provisions of article 22, such as the requirement that no detention last longer than three months without the Board’s examination, would then be redundant. He reiterated at page 237 that clause (4) of article 22 “enjoins… that no law can provide for preventive detention for a longer period than three months without reference to an advisory board.” Justice Mukherjea, at page 281, observed that preventive detention could be enacted for reasons listed in six different matters in the legislative lists, but article 22(4)(a) imposed a condition that detention exceeding three months could not be permitted except with the Board’s sanction. Finally, Justice Das, at page 326, summarized that clause (4) of article 22 placed a limitation on legislative power concerning the period of preventive detention and, in addition to this limitation, prescribed a procedure for detentions lasting longer than three months by providing for an advisory board.

In this case, the Court observed that the learned Solicitor-General argued that Article 22 of the Constitution addressed both preventive detention and other forms of detention. He explained that clauses (1) and (2) of the article concerned detentions other than preventive detention, whereas clause (4) and the subsequent clauses dealt exclusively with preventive detention. Clause (3), he added, expressly states that the provisions of clauses (1) and (2) do not apply to a person who is detained under any law that provides for preventive detention. The Solicitor-General further contended that the expression “such detention” in clause (4) was meant to refer to preventive detention without any reference to the length of that detention, distinguishing it from the other categories mentioned in clauses (1) and (2). To support this view, he argued that even when preventive detention extends beyond three months, it does not constitute a separate category of preventive detention; consequently, the words “such detention” should be read as referring to the sole kind of preventive detention mentioned in the article—preventive detention in the general sense, without regard to the period of confinement. The Court was unable to agree with that interpretation. It noted that the detention described by the phrase “such detention” is indeed preventive detention, and that clauses (4) through (7) of Article 22 deal exclusively with preventive detention and no other form of detention. Therefore, there was no need in those clauses to differentiate preventive detention from other kinds of detention by using the word “such.” Accordingly, the Court read the expression “such detention” as meaning “such preventive detention.” The Court then asked which variety of preventive detention was intended, answering that the reference must be to one specific variety distinguished from other varieties.

The Court further held that preventive detention for a period exceeding three months remains preventive detention and does not become a different kind of detention. However, it is not identical to preventive detention for a shorter period. The Court recognized that it is quite possible for legislation on preventive detention to prescribe different provisions for different permissible periods of confinement. It acknowledged that preventive detention inevitably curtails an individual’s liberty and represents an intrusion upon personal freedom. The Court considered that the Constitution’s framers, having authorised legislatures to enact laws permitting preventive detention that interferes with liberty, may have deemed it unnecessary to impose a limitation on such power when the detention is relatively brief, while finding it appropriate to restrict the power when the detention extends for what they perceived as a longer duration. If that was the intention, the framers would have clearly distinguished between short-term and long-term preventive detention. To assert that no distinction exists between these two forms would imply that the Constitution’s makers never intended such a differentiation, a supposition the Court found without justification.

The Court observed that the reasoning found in the earlier judgment of this Court in Gopalan’s case demonstrated that the Constitution-makers had indeed contemplated a distinction between ordinary preventive detention and preventive detention that extended beyond three months. The judgment of Gopalan expressly stated that the Constitution did not provide for any reference to the Advisory Board except in cases where the detention lasted for a period longer than three months.

The learned Solicitor-General argued that one possible construction of the expression “such detention” could be understood to mean detention for a period longer than three months. Applying the ordinary meaning of the word “such,” the Court noted that when two categories of detention – namely preventive detention in the ordinary sense and detention for other reasons – have already been mentioned, the term “such” ordinarily points to the category mentioned most immediately before it. Consequently, the Court held that the phrase “such detention” should be interpreted as referring to detention for a period longer than three months. The Court further explained that clause (4) and the other related clauses deal exclusively with preventive detention and do not concern any other type of detention. Accordingly, the word “such” cannot be used to create a distinction from a provision that lies in a completely separate part of the article, such as clauses (1) and (2). On this basis, the Court could not accept the contention that “such detention” referred to preventive detention in the general sense.

The Court then addressed another issue raised by the learned Solicitor-General. It was submitted that Article 22(4)(a) applied only to a law that authorised detention for more than three months and that only such a law was required to obtain the opinion of the Advisory Board. The argument further asserted that whenever a law authorising preventive detention made reference to the Advisory Board, it necessarily required an enquiry as to whether there was sufficient cause for detention for a period longer than three months. Accordingly, the argument claimed that, irrespective of whether the law expressly required the Advisory Board to state that it found sufficient cause for a longer detention, any report produced would be deemed to contain that opinion, thereby satisfying the requirement of the article. The Court noted that this line of reasoning presupposed that the term “such detention” meant detention for a period exceeding three months and that the article mandated an opinion from the Advisory Board specifically on the sufficiency of cause for a longer detention. However, the Court observed that nothing in Article 22(4)(a) prohibited a preventive detention statute from seeking the Advisory Board’s opinion on the existence of sufficient cause in any detention, irrespective of its length. A provision of this nature, when inserted into a preventive detention law, would be permissible.

In this case, the Court observed that the provision authorising preventive detention contained in the present Act was fully lawful because the Act actually includes a clause that requires the Advisory Board to give its opinion. Consequently, the Court rejected the contention that every statute which merely mandates that the Advisory Board express an opinion on whether there is sufficient cause for detention must, according to Article 22(4)(a), be limited to an opinion on the sufficiency of cause for a detention lasting more than three months. The Court explained that even if one assumes, as the opposing argument does, that a law permitting preventive detention for a period exceeding three months is required to contain an explicit provision that the Advisory Board shall state, in clear terms, its opinion on the adequacy of the cause for that specific length of detention, such a requirement cannot be satisfied simply by omitting the provision and then implying that the necessary opinion has been deemed given. The Court emphasized that the real issue is not what a particular report is presumed to say or what it actually states, but rather what the legislation itself must stipulate. If the statute fails to incorporate the mandatory clause, the Court held that the statute must be considered defective. The Court found it untenable to argue that a statute could be deemed satisfactory merely because, despite lacking the explicit requirement, the Constitution would be interpreted as having supplied it implicitly. The Court then addressed another argument which suggested that because it is not the role of the Advisory Board to decide the length of detention, there is no justification for demanding its opinion on whether sufficient cause exists for a detention of more than three months. The Court responded that the relevance of the Board’s opinion is immaterial; when the Constitution uses the term “such opinion”, the term obliges the opinion to be obtained, irrespective of any perceived usefulness. The Court stressed that the constitutional language is clear and cannot be given an alternative meaning without rendering the provision meaningless. Moreover, the Court could not understand why, when the government determines a detention period that exceeds three months, it would be unnecessary to obtain the opinion of an independent body on whether the cause justifies that longer period. The Court considered such a safeguard to be entirely reasonable. When a person’s liberty is to be restricted for an extended duration, an additional protective measure is appropriate, whereas a shorter restriction may not demand the same level of oversight. The Court reiterated that the reasonableness of requiring the Advisory Board’s opinion for longer detentions is implicit in earlier jurisprudence, notably the decision reported in Gopalan’s case, where it was observed that only a detention exceeding three months the

The Court observed that the Constitution obliges the legislature to include a requirement that the opinion of the Advisory Board be obtained. This principle was clearly expressed by Justice Fazl Ali, who at page 171 of the report stated that it is a serious matter to detain a person for a long period—more than three months—without any enquiry or trial, but that article 22(4)(a) permits such detention only on the report of the Advisory Board. He further explained that because the report must be directly linked to the purpose for which it is required, the safeguard provided by the article—namely, calling for a report from the Advisory Board—would be ineffective if the Board did not apply its mind to the essential question before the Government, namely whether prolonged detention of more than three months is justified. The Court noted that it had earlier discussed at length whether the phrase “such detention” refers to preventive detention in general or specifically to preventive detention exceeding three months, treating the issue as a matter of construction without relying on authority. Although no conclusive authority existed, several authorities had been cited, and the Court now turned to consider them. The first authority mentioned was the Gopalan case, reported in [1950] S.C.R. 88, which also involved a habeas corpus petition and concerned the very Act now before the Court as it stood in 1950. At the time of the detention order in that case, the Act allowed that in certain classes of cases a person could be detained for a period longer than three months without obtaining the Advisory Board’s opinion, as sanctioned by clause 7(a) of article 22. The detention order in Gopalan did not make reference to the Advisory Board mandatory, and consequently the Court was not required to decide the precise meaning of “such detention.” Nevertheless, three of the learned judges expressed their views, while the remaining three did not address the issue. Chief Justice Kania held that “such detention” meant detention beyond three months. He referred to the proviso to sub-clause (4)(a) and observed 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). Thus, the Chief Justice concluded that under article 22(4)(a) the Advisory Board must be of the opinion that there was sufficient cause for detention beyond the period of three months. Justice Fazl Ali also expressed his view on the matter, aligning with the interpretation that “such detention” refers to detention for a period longer than three months.

Justice Fazl Ali spoke clearly on the subject and, referring to pages 170-171 of the record, observed that the first point raised required an exact determination of the meaning of the words “such detention” that appear at the end of clause (4)(a). He noted that two alternative constructions had been suggested. The first construction understood “such detention” to mean preventive detention, while the second construction understood the phrase to refer to detention that exceeded a period of three months. Justice Fazl Ali explained that, if the first construction were correct, the advisory board’s role would be limited to examining the merits of each individual’s case and simply reporting whether sufficient cause existed for the person’s detention. Under the second construction, however, the advisory board would be required to report to the Government on whether there was sufficient cause for the detention of the individual for a period longer than three months. After considering both possibilities, he stated that he was inclined to agree with the second construction. He further explained that, on its face, detaining a person for a longer period—more than three months—without any enquiry or trial is a serious matter. Article 22(4)(a) permits such detention only on the basis of the advisory board’s report. He argued that if the advisory board were not required to consider the crucial question of whether prolonged detention—detention beyond three months—is justified, the safeguard embodied in the article would be rendered ineffective. He pointed out that Article 22(4)(a) obliges the advisory board to submit its report before the expiry of three months, which could be as late as the eighty-ninth day. To require the board, after a man has already been detained for eighty-nine days, to decide whether the initial detention was justified would be somewhat farcical. He added that deciding whether prolonged detention is justified necessarily entails deciding whether the detention itself is justified at all, and that only this interpretation gives real meaning and effectiveness to the provision. Because the provision is intended as a protection or safeguard, he concluded that he must naturally prefer the interpretation that favours the subject of the protection and aligns with the provision’s purpose.

Justice Patanjali Sastri, while preferring the alternative view, recognised that the interpretation advanced by Justice Fazl Ali was also plausible. On page 210 of the record he expressed his inclination that the words “such detention” in sub-clause (a) referred back to the preventive detention mentioned in clause (4) rather than to detention for a period longer than three months. He observed that an advisory board, which must be composed of judges or lawyers, would scarcely be in a position to determine how long a person placed under preventive detention—such as one detained for reasons connected with the defence—should be held. He explained that this determination of duration is a matter for the executive authorities, specifically the Department of Defence, which is responsible for the country’s defence and possesses the necessary information to make such a decision. Consequently, the role of the advisory board, as a safeguard against misuse of power, is limited to judging whether the detention is justified and not arbitrary or mala fide, rather than deciding the appropriate length of the detention.

In this discussion the Court explained that the decision as to how long a person should be detained for reasons of defence must rest with the executive authorities, namely the Department of Defence, because those authorities are charged with the defence of the country and possess the necessary information to make such a determination. The role of an advisory board, which must be composed of judges or lawyers, is limited to acting as a safeguard against the abuse of power; its proper function is to examine whether the detention is justified and whether it is arbitrary or undertaken in bad faith. The requirement that the advisory board submit its report before the expiry of three months does not mean that the board’s sole concern is whether the detention should continue beyond that period. Before a board can send its report, a reasonable interval must pass 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 be placed before the board through the appropriate departmental channel. Each of these procedural steps may require time in the ordinary course of administration, and the three-month period was evidently intended to provide a reasonable window for the board to complete its review. Even if the words “such detention” were understood to refer to the length of detention, there is no justification for limiting the board’s inquiry to the issue of duration alone without also considering whether the detention itself is justified. It would be difficult to imagine a tribunal fairly deciding that a person may be held for more than three months without at the same time examining whether there is sufficient cause for the detention in the first place. The Court held that the advisory board mentioned in clause (4) of the Constitution is the mechanism devised for reviewing preventive detention orders in certain cases, taking into account the representations made by the detained persons. This understanding is reflected in the legislation enacted by Parliament, as shown by sections 9 and 10 of the impugned Act, and the Court considered it the correct interpretation. Consequently, the petitioner could not claim that his case should be heard by any other impartial tribunal under article 21 or any other provision. For the reasons previously set out, the Court expressed a preference for the view articulated by Justice Fazl Ali. The Court then turned 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, issued before referral to the advisory board, fixed the period of detention. The Court held that such fixing was illegal because the Act made it clear that only after the advisory board had reported that the detention was justified should the Government determine the period of detention. The fixing of the period in the initial order was therefore inconsistent with the scheme of the Act and could not be supported, leading to the allowance of the petition for the writ. The Court noted that this case did not deal with article 22(4)(a) and did not decide the question presently before it, offering no assistance. Finally, the Court referred to Dattatreya Moreshwar Pangarkar v. State of Bombay, 1952 S.C.R. 612, another habeas corpus application arising under the Preventive Detention Act. In that matter, after an initial detention order that did not specify any period, the case was referred to the advisory board, which reported that there was sufficient cause for detention.

In that case the Court observed that the statute required the Government to wait for the report of the Advisory Board before fixing the period of detention, and therefore the Government could not determine the detention period in the initial order. The Court held that the fixation of the detention period in the first order, as occurred in the present case, violated the scheme of the Act and could not be sustained; consequently the petition for a writ of habeas corpus was allowed. The Court further noted that the decision in Makhan Singh Tarsikka v. State of Punjab did not concern Article 22(4)(a) and therefore offered no assistance on the question before it. The Court then turned to Dattatreya Moreshwar Pangarkar v. State of Bombay, a case also dealing with a habeas-corpus application under the same Preventive Detention Act. In that matter, after an initial detention order that omitted any period, the case was referred to the Advisory Board, which reported sufficient cause for detention; the Government thereafter issued a confirmatory order affirming the detention. The issue there was whether, under section 11(1)(a) of the Act as it stood in 1952, the confirmatory order had to state the period of detention, and the Court held that the omission of the period did not invalidate the order. Again, the Court stressed that the case did not involve Article 22(4)(a). The Court also cited observations of Justice Mukherjea, which explained that the phrase “such detention” in Article 22(4)(a) referred to detention in general. Justice Mukherjea’s pronouncement, recorded on pages 626-27, clarified that it was established that the detaining authority was not required to mention a detention period in the original order under section 3(1) of the Preventive Detention Act, and that including a period could render the order illegal because it might prejudice the detainee’s case before the Advisory Board. The Advisory Board’s function was limited to deciding whether sufficient cause existed for detention; it was neither tasked nor empowered to determine the length of detention. Once the Board reported that sufficient cause existed, the subsequent action—namely, the Government’s decision whether to confirm the order and the length of detention—was left entirely to the appropriate Government under section 11(1) of the Act.

In this passage the Court explained that after the Advisory Board has rendered its opinion, the subsequent action rests wholly with the appropriate Government, which may, under section 11(1) of the Preventive Detention Act, confirm the original detention order and continue the detention for such length as it deems appropriate. Counsel argued that Justice Mukherjea had intended to convey that the Advisory Board’s sole function was to express an opinion on the justification of the detention in the abstract, that is, detention simpliciter. While that proposition might be correct, the Court noted that Justice Mukherjea was interpreting the specific provisions of the Preventive Detention Act, which indeed required the Board only to comment on the existence of sufficient cause. He was not, however, stating that Article 22(4)(a) of the Constitution imposed the same limitation. The Court further observed that Justice Mukherjea’s earlier judgment in Gopalan’s case [[1950] S.C.R. 88] demonstrated a different view of Article 22(4)(a). Moreover, the judge had not addressed whether the relevant clause of the Preventive Detention Act was unconstitutional. The Court also clarified that the fact that the Government determines the period of detention does not imply that the Constitution does not require the Advisory Board’s opinion when a detention exceeding three months is contemplated. To support this, the Court cited Justice Mahajan’s passage from his judgment [[1952] S.C.R. 612] at page 637, which states that under the Constitution no preventive detention may exceed three months unless the Advisory Board is of the opinion that there is sufficient cause for such detention. It was suggested that Justice Mahajan meant that the law merely needed the Board’s view on the existence of cause, irrespective of the detention’s length. The Court rejected this reading, pointing out that Justice Mahajan was not interpreting the phrase “such detention” and was not deciding whether it meant detention in general or detention for a period beyond three months. The observations in Gopalan’s case indicated that the Board must express an opinion on whether a longer detention is justified. Consequently, the Court held that Justice Mahajan did not equate “such detention” in Article 22(4)(a) with simple preventive detention. The Court then concluded that neither Makhan Singh’s case [[1952] S.C.R. 368] nor Dattatreya Moreshwar Pangarkar’s case [[1952] S.C.R. 612] supports a view contrary to the one adopted herein. Accordingly, the appeal was allowed.