Arun Ghosh vs State of West Bengal

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

Court: Supreme Court of India

Case Number: Writ Petition No. 287 of 1969

Decision Date: 02 December 1959

Coram: Hidayatullah

In this case the Supreme Court recorded that the petitioner, Arun Ghosh, was detained by the District Magistrate of Malda under section 3(2) of the Preventive Detention Act, 1950. The detention order was issued on 2 June 1969 and the petitioner was arrested on the following day. The order stated that the purpose of the detention was to prevent the petitioner from acting prejudicially to the maintenance of public order. The petitioner filed a writ petition under article 32 of the Constitution of India, identified as Writ Petition No. 287 of 1969, seeking a habeas corpus remedy. Counsel for the petitioner submitted that the grounds for detention, which had been communicated to him on 3 June 1969, did not relate to any threat to public order. The Advisory Board had rejected the petitioner’s representation, and the State Government had also rejected it independently. The Court examined whether any undue delay had occurred at any stage in handling the detention, as required by the Act, and concluded that there was no such delay. The Court then turned to the substantive issue of whether the petitioner’s conduct amounted to a breach of public order. The headnote summarized the factual allegations that the petitioner had molested two respectable young ladies, threatened the life of one of their fathers, and assaulted two other individuals. The Court explained that the question of whether a person has merely broken the law or has acted in a manner likely to disturb public order is a question of degree and depends on the extent to which the conduct affects the community. The test, as articulated by the Court, is whether the conduct leads to a disturbance of the even tempo and current of life of the community, thereby amounting to a disturbance of public order, or whether it merely affects an individual without disturbing societal tranquillity. Applying this test, the Court observed that although the petitioner’s conduct was reprehensible, it did not rise to the level of disturbing the community at large. Consequently, the Court held that there was no reasonable apprehension of a breach of public order and that the petitioner was entitled to be released. The judgment relied upon earlier decisions, including Dr Ram Manohar Lohia v. State of Bihar, 1966 S.C.R. 709, Pushkar Mukherjee and Ors. v. State of West Bengal, 1969 S.C.R. 635, and Shyamal Chakraborty v. Commissioner of Police, Calcutta & Anr., 1970 S.C.R. 762. The judgment was delivered by Chief Justice Hidayatullah, with representation for the petitioner by counsel and representation for the respondent by counsel for Sukumar Basu. The Court ultimately concluded that the detention could not be justified on the ground of maintaining public order and ordered the petitioner’s release.

In support of the petition, the learned counsel contended that the sole ground relied upon by the petitioners—namely that the petitioner was “acting prejudicially to the maintenance of public order”—was insufficient to justify the detention. The District Magistrate, in an affidavit filed in reply, summarized the grounds for detention as “anti-social activities including rioting, assault and undue harassment to respectable young ladies in the public street of Malda town.” The affidavit then set out a series of specific incidents, each identified by date and brief description. On 18 May 1966, the petitioner allegedly teased a woman named Rekha Rani Barua and, when her father protested, confined and assaulted the father. On 29 March 1968, the petitioner was said to have wrongfully restrained and assaulted a man named Deepak Kumar Ray with lathis and rods. On 1 April 1968, an attempt was reported to assault Deepak Kumar Ray again, this time at Malda Sadar Hospital where Ray was receiving treatment for injuries from the earlier assault. On 2 September 1968, the petitioner allegedly threatened a man called Phanindra C. Das, promising to insult his daughter publicly. On 26 October 1968, the petitioner purportedly embraced Uma Das, the daughter of Phanindra C. Das, and threw white powder on her face, an act that gave rise to a criminal case. On 7 December 1968, the petitioner is reported to have obscenely teased Smt. Sima Das, sister of Uma Das, and to have beaten her with chappals. On 18 December 1968, Smt. Sima Das was again teased. Finally, on 26 January 1969, the petitioner allegedly threatened the life of Phanindra C. Das. The counsel submitted that each of these acts was isolated, directed against particular individuals, and did not constitute a subversive threat to public order. Consequently, the detention on the ostensible ground of preventing prejudicial acts against public order was, in the counsel’s view, unwarranted.

The learned counsel reinforced this submission by referencing three earlier decisions of this Court: Dr. Ram Manohar Lohia v. State of Bihar, Pushkar Mukherjee and Others v. State of West Bengal, and Shyamal Chakraborty v. The Commissioner of Police, Calcutta and Another. In the Lohia case, the Court drew a distinction between “maintenance of law and order” and “maintenance of public order,” observing that public order encompasses a broader segment of the community than law and order. The Court described public order as the steady rhythm of community life, whether considered for the nation as a whole or for a specific locality. A disturbance of public order, therefore, is to be distinguished from isolated acts directed at individuals that do not upset the general tranquility of society. The Court explained that the degree of disturbance and its impact on the community’s rhythm determine whether an act merely breaches law and order or actually threatens public order. For illustration, the Court noted that if a man stabs another, the public may feel shock or dismay, yet the community’s ordinary life continues largely unaffected. By contrast, in a situation of communal tension where a man stabs a member of another community, the act carries deeper implications, potentially disrupting the even tempo of life and jeopardising public order because it can incite large sections of the community to further breaches of law and order. This jurisprudence was invoked to argue that the petitioner’s alleged acts, being directed at particular individuals and lacking any broader communal impact, do not rise to the level of a disturbance of public order and therefore do not satisfy the statutory requirement for preventive detention.

The Court explained that an act by itself does not determine its gravity. Although the intrinsic quality of two acts may be identical, their potential to affect public tranquillity can differ dramatically. For example, the Court considered a situation in which a guest staying at a hotel kisses or makes unwelcome advances to several chamber maids. That conduct may annoy the maids and the hotel management, and it may even lead to a heated dispute with the friends of one of the maids, but it does not disturb the overall public order. Such conduct would be treated merely as a breach of law and order. By contrast, the Court described a different scenario in which a man molests women in secluded places. Because of his activities, girls who travel to colleges and schools live in constant fear, and women who go about their ordinary business fear being waylaid and assaulted. Although the essential nature of the molestation is not different from the earlier example, its potential to disturb public tranquillity is far greater. The molestation of women in lonely places disrupts the even tempo of communal life, which is the primary requirement of public order. It creates apprehension among women about their honour and safety, thereby disturbing society at large, rather than constituting only an individual wrongdoing that criminal courts would note. Consequently, the Court held that the question of whether a person has merely breached law and order or has acted in a manner likely to cause a disturbance of public order is a question of degree, measured by the extent of the act’s reach upon society, as noted in the citation [1970] 1 S.C.R. 762. The Court further observed that French jurisprudence distinguishes between law and order and public order by using the term order publique, which implies a meaning broader than the ordinary maintenance of law and order. Justice Ramaswami, in Writ Petition No. 179 of 1968, drew a line of demarcation between serious and aggravated breaches of public order that affect the community or endanger the public interest at large, and minor breaches of peace that do not affect the public at large. He employed an analogy between public and private crimes, cautioning that the analogy is useful but should not be stretched excessively. The Court noted that a large number of acts directed against individuals may cumulatively amount to a breach of public order. In the case of Dr. Ram Manohar Lohia, examples given by Justice Sarkar and Justice Hidayatullah, JJ., illustrated how similar acts in different contexts affect law and order on the one hand and public order on the other. The Court emphasized that the assessment is always a question of degree, of the harm caused and its effect upon the community. The question to

In this case the Court examined whether the petitioner’s conduct disturbed the life of the community enough to amount to a breach of public order, or whether it only affected an individual, leaving the tranquillity of society untouched. The Court said that this question must be answered by looking at the facts of each case because there is no universal formula that can distinguish one situation from another. The Court noted that in the present matter the petitioner’s actions harmed the family of Phanindra C. Das and also involved assaults on two other persons. The Court distinguished those facts from those in Writ Petition No. 102 of 1969, where three incidents of rioting with lathis, iron rods and acid bulbs were deemed sufficient to disturb the normal rhythm of public life in that locality and were therefore treated as a disturbance of public order. Conversely, the Court recalled that in Writ Petition No. 179 of 1968 assaults on four individuals and the throwing of a cracker into a police wireless van were held not to amount to a disturbance of public order; they were considered separate acts affecting only the victims and not the community at large. Applying that reasoning, the Court observed that all of the alleged molestation in the present case was directed specifically against the family of Phanindra C. Das and was not directed against women of the locality in general. The assaults were directed at individual persons. While the conduct may be reprehensible, the Court held that it does not rise to a situation where the community at large is disturbed, nor does it create a breach or a likelihood of breach of public order. The Court therefore concluded that, although the petitioner’s conduct is condemnable, it cannot be said to create an apprehension of a breach of public order (1) [1966] 1 S.C.R. 709 that would justify his detention. Accordingly, the petitioner is entitled to be released and will be released forthwith unless he is required in some other connection. The petition is allowed.