Jagan Nath Sathu vs The Union Of India (Uoi)

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: Not extracted

Coram: B.P. Sinha, A.K. Sarkar, J.C. Shah, K.N. Wanchoo, S.J. Imam

In the matter of Jagan Nath Sathu versus the Union of India, reported on 20 January 1960, the Supreme Court of India considered a petition that was heard on 4 January 1960. The bench that heard the petition consisted of Justices B P Sinha, A K Sarkar, J C Shah, K N Wanchoo and S J Imam, and the judgment was authored by Justice Imam. The Court initially informed the parties that the petition would be dismissed and that reasons for that decision would be provided subsequently; the Court now proceeds to give those reasons. The petitioner had been placed in detention by an order dated 4 May 1959 issued by the Central Government under section 3 of the Preventive Detention Act, 1950 (referred to as “the Act”). The formal grounds for his detention, dated 7 May 1959, were served upon him. The matter was then placed before an Advisory Board that had been constituted by the Central Government under section 8 of the Act. After the Advisory Board reported, the Central Government issued an order on 23 June 1959 directing that the petitioner remain detained until 4 May 1960. The petitioner challenged that order of detention by filing the present petition under article 32 of the Constitution. The grounds of detention set out five individual reasons on which the Central Government relied, asserting that the petitioner was likely to continue acting in a manner that would be prejudicial to the security of India and to India’s relations with foreign powers. The detention order further stated that, in the public interest, it was not appropriate to disclose to the petitioner any additional facts or particulars such as dates, persons, places, the nature of the activities, or the assistance he had rendered, beyond what was already mentioned in the grounds. The order also indicated that certain sample dispatches sent by the petitioner and some reports that had appeared in a newspaper published in Pakistan were annexed to the grounds of detention. From those grounds, the allegations appear to be that the petitioner had been engaged in propagandist activities against the Government of India and the government of the State of Jammu and Kashmir, seeking to engender hatred and contempt toward both governments. It was further alleged that, in furtherance of this propaganda, the petitioner had, among other things, sent dispatches for publication in a foreign newspaper containing news and views about Jammu and Kashmir that were false, incomplete, one‑sided and misleading. These dispatches purportedly misrepresented the administration of the State, the policy of the Government of India toward the State, and the general conditions in both India and the State of Jammu and Kashmir. The order claimed that those dispatches were published prominently by the newspaper, which enjoyed a large circulation in Pakistan and other foreign countries, thereby prejudicing India’s cause concerning Jammu and Kashmir and harming India’s relations with foreign powers.

The Court recorded that the petitioner had communicated with foreign countries, including Pakistan, in a manner that was prejudicial to India’s interests concerning the State of Jammu and Kashmir and also harmful to India’s relations with foreign powers; it further observed that the petitioner maintained regular contact and close association with several individuals who were hostile to India’s cause in Jammu and Kashmir and who were engaged in activities detrimental to India’s security, and that the cumulative effect of the petitioner’s actions was thereby prejudicial to India’s relations with foreign powers generally and, in particular, to the cause of India in Jammu and Kashmir and to the maintenance of public order in that State. The Court then noted that it had examined the various extracts from the despatches sent by the petitioner that were annexed to the grounds of detention, and that these extracts disclosed sufficient particulars to enable the petitioner to make a representation before the Advisory Board; having regard to the content of those extracts, the Court found that they provided adequate grounds for the Central Government’s decision to detain the petitioner. On behalf of the petitioner, it was argued 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 India’s security. Regarding the first ground, counsel for the petitioner contended that Pakistan could not be considered a foreign state and therefore the petitioner’s acts could not be prejudicial to relations with foreign powers; reference was made to Article 367(3) of the Constitution, which defines “Foreign State” as any State other than India, subject to a proviso allowing the President, by order and subject to any parliamentary law, to declare a State not to be a foreign state for specified purposes. The petitioner’s counsel further pointed to the Constitution (Declaration as to Foreign State) Order 1950, made by the Governor‑General under Article 392(3) read with Article 367(3), which declared that every country within the Commonwealth was not a foreign state for constitutional purposes, a declaration that took effect on 23 January 1950; clause 2 of that Order stated that, subject to any law made by Parliament, every Commonwealth country was thereby not a foreign state. The petitioner’s counsel maintained that, since no Parliamentary law had been enacted to contrary, Pakistan, as a Commonwealth member, remained non‑foreign, and consequently the first ground of detention was invalid.

In this case the petitioner argued that because Pakistan had been declared, by the Constitution (Declaration as to Foreign State) Order, not to be a foreign state for constitutional purposes, it could not be treated as a foreign power. Accordingly the petitioner maintained that none of the acts mentioned in the grounds of detention could be characterised as acts prejudicial to India’s relations with foreign powers. The petitioner therefore contended that the ground relying on a foreign‑power relationship was invalid and that, under established decisions of this Court, the entire order of detention had to be set aside even if the remaining grounds were otherwise valid. The petitioner further submitted that the extracts of the despatches and the detention grounds contained no language suggesting incitement to violence or subversion of the Government of Jammu and Kashmir or of the Government of India, and therefore there could be no act of the petitioner that was prejudicial to the security of India. Additional submissions concerning the detention grounds were indicated to be addressed later. Moreover, the petitioner claimed that principles of natural justice had been violated because the Advisory Board had heard the respondent’s case before the petitioner’s case and had done so in the petitioner’s absence, and because the petitioner had not been provided with copies of the additional material that the respondent had placed before the Board.

The Court observed that the petitioner’s contention that Pakistan was not a foreign state meant it could not be regarded as a foreign power required clarification. While the Order indeed made Pakistan a non‑foreign state for the purposes of the Constitution, a distinction existed between that classification and the status of a foreign power for other purposes. The Court explained that the Commonwealth comprised sovereign nations, each possessing independent internal and external authority. Each Commonwealth member was capable of establishing diplomatic relations with other members as well as with countries outside the Commonwealth, and in that respect possessed sovereignty comparable to any non‑Commonwealth nation. Consequently, in dealings among themselves and with states outside the Commonwealth, these nations were to be treated as foreign powers, and the matters relating to such dealings constituted foreign affairs. The Court therefore held that anything not pertaining to the internal affairs of a Commonwealth member was an external affair, that is, a foreign affair. Finally, the Court noted that under item 9 of List I of the Seventh Schedule of the Constitution, Parliament was empowered to legislate on preventive detention for reasons connected with defence, foreign affairs, or the security of India and persons subject to such detention.

The provision of section 3 of the Act empowered either the Central Government or a State Government, once satisfied that a particular individual might act in a manner prejudicial to the defence of India, to the relations of India with foreign powers, or to the security of India, to issue an order directing the detention of that individual if the authority deemed it necessary. The term “foreign affairs” was explained to include India’s relations with foreign powers. The principal issue for determination was whether Pakistan qualified as a foreign power. By interpreting the phrase “the relations of India with foreign powers” correctly, it was clear that Pakistan had to be regarded as a foreign power, even though it might also belong to the Commonwealth, just as India does. Pakistan possessed sovereignty over its internal administration and external relations that was entirely independent of India or any other Commonwealth member. It maintained its own diplomatic relations with numerous countries, including India, and, apart from its Commonwealth membership, its independent sovereign status was equivalent to that of any nation outside the Commonwealth. An argument had been raised that an Order issued by the Governor‑General removed Pakistan from the category of foreign power. That contention was rejected as unfounded because Article 367(3) of the Constitution defined a “foreign State” as any State other than India, and, prior to the Constitution’s commencement, Article 392(3) allowed the Governor‑General, by order, to declare any State not to be a foreign State for specified purposes. The Governor‑General’s Order declared that every country within the Commonwealth was not a foreign State for constitutional purposes. Various constitutional provisions, such as Articles 18(2)–(4), 19(2), 102(1)(d) and 191(1)(d), used the expression “foreign State,” and under the Order that expression would not apply to Commonwealth countries unless Parliament enacted a contrary provision. However, the Order could not be invoked to interpret the phrase “foreign affairs” in item 9 of List I of the Seventh Schedule or the phrase “foreign powers” in section 3 of the Act. Those expressions were required to be given their ordinary meaning, and it was unequivocal that Pakistan was a foreign power. Consequently, under the Act, both the Central Government and State Governments were authorized to detain any person whose conduct was prejudicial to India’s relations with foreign powers, which expressly included Pakistan. It was also noted that neither the Order nor the grounds of detention specifically mentioned Pakistan; instead, the grounds referred generally to conduct prejudicial to India’s relations with foreign powers overall.

The Court observed that neither the detention order nor the grounds of detention specifically named Pakistan. Instead, the grounds expressly stated that the overall effect of the petitioner’s conduct was harmful to India’s relations with foreign powers generally, as indicated in grounds three and four. Those grounds described the petitioner’s publication, in a foreign newspaper, of dispatches containing news and views about the State of Jammu and Kashmir that were false, incomplete, one‑sided and misleading, and that criticized the policy of the Government of India concerning that State. The Court noted that the annexed extracts of the dispatches, which the petitioner had sent to the foreign newspaper, demonstrated that the material was not only injurious to the Government of India in its dealings with Pakistan but also prejudicial to India’s relations with foreign powers overall, since the affairs of Jammu and Kashmir were matters of interest to many foreign states, not solely to Pakistan.

Turning to the objections raised against the grounds of detention, the Court first addressed the contention concerning ground one. It was argued that this ground lay outside the scope of the detention order because it alleged that the petitioner was engaged in propaganda against the Government of India and the Government of the State of Jammu and Kashmir in a way that fostered hatred and contempt toward those governments. The Court rejected this argument, holding that inciting hatred and contempt against the two governments did implicate the security of India and therefore fell within the ambit of the detention order. Regarding ground two, the objection was that the ground failed to identify any specific subversive activity by the petitioner, did not specify which parts of the dispatches were false, incomplete, misleading or one‑sided, and merely spoke in general terms about conditions in India and the Government’s policy toward Jammu and Kashmir without stating what that policy actually was. The objection further claimed that such vagueness deprived the petitioner of a real opportunity to make a representation. The Court also considered the objections to grounds three and four, which alleged that the grounds did not disclose the cause of India’s interest in Jammu and Kashmir and that insufficient particulars were provided for the petitioner to make an effective representation before the Advisory Board. The Court dismissed all these contentions, emphasizing that the annexed extracts from the dispatches sent to the newspaper “Dawn,” published in Pakistan, were attached to the grounds of detention. These extracts, the Court held, supplied adequate particulars to enable the petitioner to respond to each ground and to make a meaningful representation before the Advisory Board.

In this case the Court examined the allegation that the respondent’s case had been heard before the petitioner’s case, that the petitioner was absent during that hearing, and that copies of additional material placed before the Advisory Board by the respondent had not been provided to the petitioner. To address these points the Court first set out the procedure prescribed for the Advisory Board under the relevant statutory provisions. Section 9 requires that, whenever a detention order is made, the appropriate Government must, within thirty days of the detention, place before the Advisory Board the grounds on which the order was made, any representation submitted by the detainee, and, where the order was issued by an officer, the officer’s report under sub‑section (3) of section 3. Section 10 then prescribes the manner in which the Advisory Board must conduct its inquiry after a reference is made under section 9. Sub‑section 10(1) provides that the Board shall, after considering the material placed before it, may call for further information it deems necessary from the appropriate Government, from any person directed by the Government, or from the person concerned. If, in any particular case, the Board considers it essential to obtain further information, or if the detainee wishes to be heard, the Board shall hear the detainee in person and then submit its report to the appropriate Government within ten weeks from the date of detention. The Court observed that these provisions clearly authorize the Board to seek additional information from the Government before hearing the detainee, and that the Board must obtain such information as a matter of necessity. In the Court’s view there is nothing in section 10 that offends the principles of natural justice. Moreover, the petition did not assert 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 that such a circumstance had occurred.

Turning to the question of whether the additional material placed before the Advisory Board by the respondent should have been supplied to the petitioner, the Court noted that paragraph 3 of the grounds of detention explicitly stated that the Central Government considered it to be against the public interest to disclose to the petitioner any facts or particulars relating to dates, persons, places, the nature of the activities, or the assistance provided by the petitioner, other than those already set out in the grounds of detention. The Court then referred to Article 22(6) of the Constitution, which expressly provides that nothing in clause (5) of that article requires the authority making a detention order to disclose facts which the authority deems to be against public interest. Accordingly, the authority in the present case declined to disclose further facts or particulars on the ground of public interest. In those circumstances the Court held that it would have been wholly inappropriate for the respondent to supply copies of the further material placed before the Advisory Board, even though the Board might have required that material in order to satisfy itself.

The Court noted that when a detention order is issued, the authority that issued the order is not obligated to disclose any information that it considers to be contrary to the public interest. The authority, in the present matter, had explicitly stated that it would not make available, on the ground of protecting the public interest, any particulars relating to the dates on which the petitioner was said to have been involved, the identity of persons with whom he may have interacted, the specific places that were relevant, the character of the activities alleged, or the nature of any assistance that the petitioner was alleged to have rendered. The only information that the authority agreed to disclose were those items that had already been mentioned in the formal grounds of detention. In light of that position, the Court held that 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, even though the Advisory Board might have sought further details in order to satisfy its own investigatory requirements. The Court therefore concluded that the petition could not be permitted to proceed and ordered its dismissal. Accordingly, the petition was dismissed in its entirety.