Jagan Nath Sathu vs The Union Of India

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

Court: Supreme Court of India

Case Number: Writ Petition No. 170 of 1959

Decision Date: 20 January 1960

Coram: Syed Jaffer Imam, Bhuvneshwar P. Sinha, A.K. Sarkar, K.N. Wanchoo, J.C. Shah

In the writ petition numbered 170 of 1959, the petitioner Jagan Nath Sathu challenged an order of detention dated 4 May 1959 issued by the Central Government under section 3 of the Preventive Detention Act, 1950. The petitioner sought enforcement of his fundamental rights under article 32 of the Constitution of India. The petition was heard before a five‑judge bench of the Supreme Court consisting of Justice Syed Jaffer Imam, Justice Bhuvneshwar P. Sinha, Justice A. K. Sarkar, Justice K. N. Wanchoo and Justice J. C. Shah, and the judgment was delivered on 20 January 1960. The citation of the case is reported as 1960 AIR 625 and 1960 SCR (2) 784.

The factual background recorded that the Advisory Board, constituted under section 8 of the Act, examined the petitioner’s case in accordance with the statutory procedure and did not recommend withdrawal of the detention order. The government alleged that the petitioner was engaged in propagating hatred and contempt against the Government of India and the State of Jammu and Kashmir by causing the publication of false, one‑sided and misleading material in a widely circulated foreign newspaper. The petitioner contended that Pakistan, where the newspaper was published, was a member of the Commonwealth and therefore could not be regarded as a foreign power; he also argued that the principles of natural justice were violated because the Advisory Board considered the case in his absence and did not provide him with the material placed before it.

The Court examined the meaning of the expression “foreign affairs” appearing in item 9 of list 1 of the Seventh Schedule of the Constitution and the phrase “the relations of India with foreign powers” in section 3 of the Act. It held that, despite Pakistan’s Commonwealth membership, it must be treated as a foreign power for the purposes of the Preventive Detention Act. The Court explained that article 367(3) could allow a country not to be a foreign state for constitutional purposes while it could still be a foreign power for other statutory purposes, and that the Commonwealth constitutes an association of sovereign nations each possessing independent internal and external authority. Further, the Court found that the provisions of section 10 of the Act did not offend the principles of natural justice, and the procedure adopted by the Advisory Board in the present case did not contravene those principles.

For the petitioner, counsel was identified as the petitioner’s representative, while for the respondent, the Union of India, the representation was made by the Solicitor‑General of India together with two additional counsel. The Supreme Court, having considered the arguments and the statutory framework, dismissed the petition and upheld the legality of the detention order.

The opinion in this matter was authored by Justice Imam J. The petition was heard on 4 January 1960. At that stage the Court informed the parties that the petition would be dismissed and that the reasons for dismissal would be provided at a later stage. The Court now proceeds to set out those reasons. The petitioner had been detained by an order dated 4 May 1959 issued by the Central Government under section 3 of the Preventive Detention Act, 1950 (hereinafter referred to as “the Act”). The grounds of detention were served on the petitioner on 7 May 1959. The matter was then placed before an Advisory Board that had been constituted by the Central Government in accordance with section 8 of the Act. After considering the case, the Advisory Board submitted its report, upon which the Central Government issued an order on 23 June 1959 directing that the petitioner be detained until 4 May 1960. The petitioner filed the present writ under article 32 of the Constitution, challenging that order of detention. The grounds of detention comprised five separate grounds on which the Central Government claimed it was necessary to detain the petitioner because he was likely to act further in a manner prejudicial to the security of India and to the relations of India with foreign powers. The Government also stated that, in the public interest, it would not disclose to the petitioner any facts or particulars such as dates, persons, places, the nature of activities, or the assistance given by him, apart from the matters already mentioned in the grounds of detention. The grounds further indicated that certain specimen dispatches sent by the petitioner and some reports appearing in a newspaper published in Pakistan were annexed to them.

From the wording of the grounds, the Government alleged that the petitioner had been engaged in propaganda against the Government of India and against the Government of the State of Jammu and Kashmir, which was established by law, and that such propaganda was intended to arouse hatred and contempt toward both governments. The Government claimed that, in furtherance of this propaganda, the petitioner had, inter alia, sent for publication in a foreign newspaper dispatches containing news and views about the State of Jammu and Kashmir that were false, incomplete, one‑sided, and misleading with respect to the administration of that State, the policy of the Government of India concerning the State, and the general conditions in India and in Jammu and Kashmir. The Government asserted that these dispatches were prominently published by the newspaper, which enjoyed a large circulation in Pakistan and other foreign countries, and that their publication was prejudicial to India and its cause concerning the State of Jammu and Kashmir, as well as prejudicial to India’s relations with foreign powers. The Government further contended that the petitioner was in regular contact with, and closely associated with, several persons who were hostile to India’s cause in relation to Jammu and Kashmir and who were engaged in activities that were prejudicial to the security of India.

It was observed that the petitioner maintained regular contact with individuals who were hostile to the cause of India concerning the State of Jammu and Kashmir and who were involved in activities that were detrimental to the security of India. The cumulative effect of the petitioner’s conduct, as described, was said to be harmful to India’s relations with foreign powers generally and especially in relation to the cause of India with respect to the State of Jammu and Kashmir and the maintenance of public order there. The Court examined the various extracts from the despatches that the petitioner had sent to the foreign newspaper and that were annexed to the grounds of his detention. Those extracts were found to contain sufficient particulars to enable the petitioner to make a representation before the Advisory Board. In view of the content of those extracts, the Court held that they disclosed adequate grounds for the Central Government’s decision to detain the petitioner. The petitioner’s counsel submitted that the detention order was based only on two grounds: first, that it was intended to prevent the petitioner from acting in a manner prejudicial to India’s relations with foreign powers; and second, that it was intended to safeguard the security of India.

The counsel further argued concerning the first ground that, because Pakistan was not a foreign state, the petitioner could not have acted in a way that was prejudicial to India’s relations with foreign powers. Reference was made to Article 367(3) of the Constitution, which defines “foreign state” as any state other than India, while the proviso permits the President, subject to any parliamentary law, to declare a state not to be a foreign state for specified purposes. The Constitution (Declaration as to Foreign State) Order, 1950, made by the Governor‑General under Article 392(3) read with Article 367(3), was cited. That Order, which came into force on 23 January 1950, contained a clause stating that, subject to any parliamentary law, every country within the Commonwealth was declared not to be a foreign state for constitutional purposes. The petitioner’s counsel contended that, because Pakistan was a member of the Commonwealth, the Order declared it not to be a foreign state, and since no subsequent parliamentary legislation had altered that declaration, Pakistan could not be regarded as a foreign power. Accordingly, the counsel argued, none of the acts mentioned in the detention grounds could be characterized as prejudicial to India’s relations with foreign powers, rendering that particular ground invalid and, consequently, the order of detention infirm.

The Court observed that the order of detention had to be set aside because, according to earlier decisions of this Court, the presence of even one invalid ground of detention rendered the entire order void, irrespective of whether other grounds appeared to be valid. The petitioner had argued that none of the extracts from the despatches or the grounds of detention contained any wording that indicated incitement to violence or subversion of the Government of the State of Jammu and Kashmir or of the Government of India, and therefore asserted that no act of the petitioner could be said to be prejudicial to the security of India. The petitioner also raised additional submissions concerning the grounds of detention, which the Court indicated would be considered later. Further, the petitioner contended that the principles of natural justice had been violated because the respondent’s case had been heard by the Advisory Board before the petitioner’s case, the petitioner had been absent from that hearing, and the petitioner had not been provided with copies of the additional material that the respondent had placed before the Advisory Board. The petitioner reiterated the claim that Pakistan could not be regarded as a foreign power because, under the Order, Pakistan was not a “Foreign State” for the purposes of the Constitution of India.

The Court acknowledged that the Order indeed declared that, for constitutional purposes, Pakistan was not a foreign state. However, the Court distinguished between a country’s status as a foreign state under the Constitution and its status as a foreign power for other purposes. The Court explained that the Commonwealth is an association of sovereign nations, each possessing independent authority over its internal and external affairs, comparable to any nation that is not a member of the Commonwealth. Consequently, each Commonwealth member may maintain diplomatic relations both with other members and with nations outside the Commonwealth, and in matters of such external relations the members function as foreign powers and engage in foreign affairs. In the Court’s view, anything that does not relate to the internal affairs of a Commonwealth member constitutes its external or foreign affairs. Under item 9 of List 1 of the Seventh Schedule of the Constitution, Parliament is empowered to enact preventive‑detention laws for reasons connected with defence, foreign affairs, or the security of India and the persons detained. Section 3 of the Act permits the Central Government or a State Government, if satisfied that a person may act in a manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, to issue an order directing that person to be detained.

The Court explained that the statutory provision permits the government to issue an order directing the detention of a person when it considers such detention necessary. It clarified that the term “Foreign Affairs” comprehends India’s relations with foreign powers. The central issue before the Court was whether Pakistan should be classified as a foreign power. The Court held that, when the words “the relations of India with foreign powers” are correctly interpreted, Pakistan must be regarded as a foreign power even though Pakistan, like India, belongs to the Commonwealth. The Court observed that Pakistan possesses sovereignty over its internal administration and external relations, and this sovereignty is independent of and unrelated to the sovereignty of India or any other Commonwealth member. Pakistan maintains its own diplomatic relations with various countries, including India. Apart from its Commonwealth membership, Pakistan’s independent sovereign status is identical to that of any country outside the Commonwealth. The Court noted a suggestion that an Order issued by the Governor‑General removed Pakistan from the category of a foreign power. The Court rejected this suggestion, calling it a fallacious argument, and referred to Article 367(3) of the Constitution, which defines “Foreign State” as any state other than India. The Constitution further allows, under Article 392(3), the Governor‑General, before the Constitution came into force, to declare by order that any State would not be a Foreign State for purposes specified in that Order. By such Order the Governor‑General declared that every country within the Commonwealth would not be a Foreign State for constitutional purposes. The Court pointed out that several constitutional provisions use the expression “Foreign State,” for example Articles 18(2)–(4), 19(2), 102(1)(d) and 191(1)(d). Accordingly, for the purposes of those articles, the expression would not include a Commonwealth country unless Parliament enacted a contrary law. However, the Court held that the Governor‑General’s Order could not be used to interpret the term “foreign affairs” in item 9 of List 1 of the Seventh Schedule, nor the term “foreign powers” in section 3 of the Act. Those expressions must be given their ordinary meaning. The Court affirmed that Pakistan is a foreign power. Consequently, under the Act, both the Central Government and State Governments may detain a person whose conduct is prejudicial to India’s relations with foreign powers, which includes Pakistan. The Court further observed that neither the detention order nor the grounds of detention specifically named Pakistan. Instead, the grounds of detention stated that the petitioner’s cumulative activities were prejudicial to India’s relations with foreign powers in general, as reflected in grounds 3 and 4.

The Court observed that the detention grounds cited the petitioner’s publication of dispatches in a foreign newspaper, which contained news and opinions about the State of Jammu and Kashmir that were described as false, incomplete, one‑sided and misleading, and that also addressed the policy of the Government of India towards that State. The annexes to the detention order included extracts of those dispatches which the petitioner had sent to the foreign newspaper, and the Court noted that those extracts demonstrated prejudice not only to the Government of India in its relations with Pakistan but also to India’s relations with foreign powers generally, because the affairs of Jammu and Kashmir were not matters of interest solely to Pakistan but attracted the attention of other foreign powers as well.

Turning to the objections raised against the detention grounds, the Court considered the first objection, which alleged that ground 1 lay outside the scope of the detention order. Ground 1 stated that the petitioner was engaged in propaganda against both the Government of India and the Government of the State of Jammu and Kashmir in a manner that would bring the two governments into hatred and contempt. The Court held that this ground was not beyond the scope of the order, for creating hatred and contempt against the two governments implicated the security of India and therefore fell within the contemplated area of the detention power.

Regarding the second objection, the petitioner argued that ground 2 failed to identify any specific subversive activity, did not specify which portions of the dispatches were false, incomplete, misleading or one‑sided, and merely referred to conditions in India generally and to the Government’s policy towards Jammu and Kashmir without stating what that policy actually was. The Court found that these contentions lacked merit, observing that the accompanying extracts from the dispatches provided sufficient particulars to inform the petitioner of the exact material in question, thereby satisfying the requirement of particularity.

The Court then examined the objections concerning grounds 3 and 4, where the petitioner contended that the grounds did not disclose the cause of India’s interest in Jammu and Kashmir and again lacked sufficient particulars for an effective representation before the Advisory Board. The Court dismissed these arguments as unfounded, emphasizing that the extracts from the dispatches sent to the newspaper “Dawn” and published in Pakistan were annexed to the detention order and gave the petitioner clear information on which to base any representation concerning each ground.

Finally, the Court addressed the petitioner’s submission that the respondent’s case had been heard before the petitioner’s case, that the hearing occurred in the petitioner’s absence, and that copies of additional materials placed before the Advisory Board by the respondent had not been supplied to the petitioner. The Court noted that these procedural issues required reference to the statutory procedure prescribed for the Advisory Board under the Act, and therefore the matter would be considered in accordance with the relevant provisions.

The Court set out the procedure that the Advisory Board was required to follow under the Act. Section 9 mandated that whenever a detention order was made, the appropriate Government had to, within thirty days of the detention, place before the Advisory Board the grounds on which the order was based, any representation made by the detained person, and, where the order had been issued by an officer, the report of that officer required by sub‑section (3) of section 3. Section 10 then prescribed the steps that the Advisory Board must take once a reference was made to it under section 9. The provision in section 10(1) read: “The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within ten weeks from the date of detention.” From these provisions it was clear that the Board could, after receiving the initial materials, seek additional information from the Government, and that it could also, if it deemed it essential or if the detainee wished to be heard, conduct a personal hearing before submitting its report. Consequently, the Board necessarily had to obtain any further information from the Government prior to hearing the detainee. The Court held that nothing in section 10 contravened the principles of natural justice. Moreover, the petition did not allege as a matter of fact that the respondent’s case had been heard in the petitioner’s absence, and the respondent’s affidavit did not admit such a circumstance. Regarding the claim that copies of additional material placed before the Board were not supplied to the petitioner, the Court noted that paragraph 3 of the grounds of detention expressly stated that the Central Government considered it against the public interest to disclose to the petitioner any facts or particulars concerning dates, persons, places, the nature of activities, or assistance provided by him, beyond what had already been mentioned in the grounds. Article 22(6) of the Constitution likewise clarified that clause (5) did not oblige the detaining authority to reveal facts it deemed contrary to public interest. In the present case, the authority had therefore lawfully declined to disclose those additional details.

In this case the Court noted that the petitioner had supplied certain facts and assistance that were not already set out in the grounds of detention, and that the authority had expressly limited disclosure to only those matters previously mentioned. The Court therefore concluded that, given the authority’s reliance on the public‑interest exception provided by Article 22(6) of the Constitution, it would have been wholly inappropriate for the respondent to furnish the petitioner with copies of the additional material that had been placed before the Advisory Board. While the Court acknowledged that the Advisory Board might, in the normal course of its inquiry, request further information in order to satisfy itself that the detention was justified, it held that the respondent’s decision to withhold such further particulars was consistent with the statutory provision that permits the detaining authority to refuse disclosure of any facts it considers detrimental to the public interest. Consequently, the petition which sought the release of those further materials and related relief was dismissed. The order expressly recorded that the petition was dismissed and that no further relief would be granted.