Harikisan vs The State Of Maharasthtra and Others

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

Court: supreme-court

Case Number: Cr. A. No. 189 of 1961

Decision Date: 31 January 1962

Coram: Bhuvneshwar P. Sinha, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter titled Harikisan versus the State of Maharashtra and Others, the Supreme Court of India delivered its judgment on the 31st day of January, 1962. The judgment was written by Justice Bhuvneshwar P. Sinha, who also sat as the Chief Justice of the Court, and the bench was joined by Justice N. Rajagopala Ayyangar and Justice J. R. Mudholkar. The petitioner in the case was Harikisan, while the respondents were the State of Maharashtra together with other parties. The case is reported in the 1962 volume of the All India Reporter at page 911 and in the 1962 Supplementary Criminal Reports (Second Part) at page 918. The decision has been cited in numerous subsequent reports, including the 1969, 1971, 1981, 1982, 1986, 1987, 1990, and later compilations, indicating its continuing relevance to questions of preventive detention and constitutional safeguards. The central statutory provision involved was Section 3(1)(a)(ii) of the Preventive Detention Act, 1950, and the constitutional issue concerned the requirements of Article 22(5) of the Constitution of India regarding the communication of grounds of detention and the opportunity to make a representation.

The Court observed that the detainee had been served with a detention order and the accompanying grounds in the English language. Because the detainee did not understand English, he requested that the order and its grounds be translated into Hindi. The request was denied on the basis that the order and its grounds had already been orally translated to him at the time of service, and that English remained the official language of communication, which the authorities contended was permissible under law and the Constitution. The Court held that this course of action failed to satisfy the requirements of Article 22(5). That article demands that the grounds of detention be communicated to the detainee as soon as possible and that the detainee be afforded the earliest opportunity to make a representation against the order. The Court explained that “communication” in this context means giving the detainee effective knowledge of the facts and reasons on which the order rests. For a person who is not conversant in English, the Constitution obliges the authorities to provide the grounds in a language that the person can understand and in a script that a literate person can read. The Court concluded that a mere oral translation at the moment of service was insufficient to meet the constitutional requirement, and consequently, the provisions of Article 22(5) had not been complied with, rendering the detention unlawful.

The judgment proceeded under criminal appellate jurisdiction, specifically Criminal Appeal No. 189 of 1961. The appeal was taken by special leave from the judgment and order dated the 10th and 11th of July, 1961, of a Division Bench of the Bombay High Court, Nagpur Bench, in Criminal Application No. 19 of 1961. The appellant was represented by counsel A. S. Bobde, B. A. Masodkar, M. L. Vaidya, M. M. Kinkhede and Ganpat Rai, while the respondents were represented by the Attorney‑General for India, M. C. Setalvad, and counsel B. Sen and R. H. Dhebar. The judgment of the Court was delivered by Chief Justice Sinha. This appeal was directed against the judgment and order dated 11 July 1961 of a Division Bench of the Bombay High Court (Nagpur Bench), dismissing the appellant’s application, under Article 226 of the Constitution, read with Section 491 of the Code of Criminal Procedure, wherein he had prayed for a

The Court noted that the appellant had instituted a writ of habeas corpus against the State of Maharashtra and the District Magistrate of Nagpur, seeking an order compelling them to produce him before the Court and to set him at liberty. The application was heard on 8 and 9 January 1962, during which counsel for the appellant, Shri A. S. Bobde, and the learned Attorney‑General for the State of Maharashtra were heard. After the hearing, the Court directed that the appellant be released forthwith and indicated that the reasons for that order would be recorded subsequently. In compliance with that direction, the Court now set out the reasons for the order passed on that day. The Court observed that an order of detention had been issued by the District Magistrate of Nagpur on 10 April 1961 under section 3(1)(a)(ii) of the Preventive Detention Act, 1950 (the Act). The detention order was headed “No.CC/X‑(2) of 1961, Office of the District Magistrate, Nagpur, Dt. 10th April 1961” and stated that the Magistrate was satisfied that it was necessary to prevent Shri Harikisan Kishorilal Agarwal of Nagpur from acting in a manner prejudicial to the maintenance of public order, and therefore it was necessary to detain him. The order further declared that, in exercise of the powers conferred by section 3(1)(a)(ii) of the Act, the Magistrate, I.A.S. Dinkarrao Hanjantrao Deshmukh, directed that Shri Harikisan Kishorilal Agarwal be detained, the order being signed and sealed on the same day. The order also directed that the appellant be detained in the District Prison, Thana, and that, for the purposes of the Bombay Condition of Detention Order, 1951, he be treated as a Class II prisoner.

The Court further recorded that the grounds of detention had been served on the same day as the order. The substance of those grounds, as summarized by the Court, was that after his release from a previous detention in October 1960, the appellant had been instigating persons in Nagpur to defy and disobey reasonable directions and lawful orders issued by competent authorities that regulated processions and assemblies. The Court noted that, by using highly provocative words, expressions and slogans in meetings and processions in which he took a prominent part, the appellant had allegedly incited persons on several occasions to indulge in acts of violence, mischief and to create disturbance in the city. It was further stated that the appellant had been acting since October 1960 in a manner prejudicial to the maintenance of public order in that city. The order contained a detailed “notable particular” of his activities, extending over five closely typed pages and many paragraphs. In his petition to the High Court, the appellant raised a number of grounds challenging the legality of the detention order, many of which were reiterated before this Court. The Court considered that it was unnecessary to address each of the points raised on behalf of the appellant, and therefore did not elaborate on all of those arguments in this judgment.

In the present case, the Court noted that it was unnecessary to examine every point raised by the counsel for the appellant. The Court was satisfied that, given the circumstances, the requirements of article twenty‑two clause five of the Constitution had not been fully observed, and consequently the appellant had not been afforded the complete opportunity contemplated by that provision to make a representation against the detention order. The factual background was then set out. On 19 April 1961, the appellant sent a letter to the District Magistrate of Nagpur stating that he had been served with a detention order dated 10 April 1961. The letter explained that both the order and the grounds of detention were written in English, a language the appellant could not understand, and requested that a Hindi version be provided so that he could comprehend the charges and take steps for his release. The letter also contained additional queries, which the Court did not deem necessary to reproduce. The District Magistrate responded on 23 April 1961. In the second paragraph of his reply, he asserted that English was the official language of the district and that the order and the grounds had been communicated in English, which he said could not be translated because the Preventive Detention Act of 1950 did not require a translation. He further stated that the order and its grounds had been fully explained to the appellant by a police officer in the presence of the Deputy Superintendent of Police, Nagpur City.

The High Court, addressing the appellant’s contention, held that English continued to be the official language of the State of Maharashtra and that service of the order in English satisfied the requirements of article twenty‑two clause five. The High Court observed that the magistrate’s letter indicated that the grounds had been explained to the appellant in Hindi by the police officer at the time of service, and therefore concluded that this oral explanation was sufficient to enable the appellant to make an effective representation against his detention. Counsel for the appellant, identified as Mr Bobde, vigorously argued that the constitutional requirement of article twenty‑two clause five had not been met. He contended that “communication” of the grounds required more than merely serving a document in English to a person who did not understand the language, and that an oral translation by the police officer could not be deemed adequate. He further questioned the accuracy and completeness of the police officer’s translation, emphasizing that the appellant must be placed in a position to make a proper representation under the Constitution.

The appellant contended that the requirement in clause 5 of Article 22 of the Constitution was that the grounds of detention be communicated to the detained person, and that merely serving the grounds in English to a person who could not understand English did not satisfy that requirement. He argued that “communication” of the grounds was not equivalent to serving them in English when the detainee was not conversant with that language, and that an oral translation by the police officer, which was purportedly given to the detainee, was not sufficient compliance with the constitutional provision. The appellant further pointed out that the record did not reveal the exact terms used by the police officer in translating the lengthy document, nor could it be ascertained whether the translation was accurate.

On behalf of the State of Maharashtra, the learned Attorney‑General first sought to demonstrate that the appellant possessed knowledge of English. To that end he relied on the affidavit of the District Magistrate, the relevant portion of which read as follows: “He (the detainee) had also asked me to supply the grounds in Hindi to enable him to understand the same. I admit that I had replied to this letter and had declined to communicate the grounds in Hindi. I deny that this has been done with a view to keep the petitioner in dark as to the grounds of his detention. The petitioner as per my information, is an educated man and can understand English. The question that the petitioner did not understand the grounds, therefore, does not arise. I deny that the petitioner is entitled to receive the grounds in Hindi. The grounds were supplied to the petitioner in the court language and also they were explained to him by the Police Inspector Shri W.B. Bobde who had served them on the petitioner….” The Magistrate’s statement was apparently supported by the affidavit of Shri W.B. Bobde, the Police Inspector, which stated: “The Order of Detention as well as the grounds of detention were translated by me orally in Hindi and explained to Shri Harikisan Kishorilal Agrawal, in the presence of the District Superintendent of Police, Nagpur City.”

The High Court, however, found that there was no proof that the appellant knew enough English to comprehend the grounds of his detention. The Court noted that the appellant had studied only up to the seventh standard in Hindi, which the Court equated with the third standard in English. The High Court rejected the appellant’s contention not on the ground that he possessed sufficient knowledge of English, but on the basis that service of the order and the grounds in English constituted adequate communication to enable him to make his representation. Consequently, for the purposes of this judgment, it must be assumed that the appellant did not possess sufficient command of English to understand the numerous paragraphs containing the grounds of detention, and therefore was not in a position to make an effective representation against the order. The learned Attorney‑General attempted to answer this contention, the discussion of which continues in the subsequent portion of the judgment.

The Attorney‑General advanced three separate arguments. First, he maintained that when the Constitution requires the grounds of detention to be communicated to the detenue, the communication may be made in the official language of the State, which remains English. Second, he contended that the communication need not be in writing and that the oral translation and explanation in Hindi given by the Inspector of Police at the time he served the detention order and its grounds satisfied the statutory and constitutional requirements. Third, he asserted that, in the particular circumstances of this case, it was not necessary to provide the grounds in Hindi. The Court held that none of these submissions met the standards laid down in clause five of Article twenty‑two. To a person who does not understand English, the mere service of an order and its grounds in English, even if accompanied by an oral translation or explanation by the police officer, does not fulfil the legal requirement. As explained by this Court in the decision of The State of Bombay v. Atma Ram Sridhar Vidya, clause five of Article twenty‑two obliges the authorities to make the grounds of detention available to the detainee as soon as possible and to afford him the earliest opportunity to make a representation against the order. For the detainee to be able to exercise that opportunity, it is not enough that he is merely handed the document. He must actually understand the substance of the grounds, which amount to the charge and describe the prejudicial acts that the authorities attribute to him. Communication, therefore, means imparting to the detainee a sufficient and effective knowledge of every ground on which the detention order rests. In the present case, the grounds comprise numerous statements allegedly made by the appellant on different occasions and dates. Consequently, any oral translation or explanation offered by the police officer cannot be regarded as adequate communication, because it does not ensure that the detainee comprehends the full facts and circumstances underlying the order. The Court further disagreed with the High Court’s conclusion that, in every case, communication of the grounds in English alone satisfies constitutional requirements as long as English remains the official language. The Court recognized that a detainee who is conversant in English will naturally be able to understand the charge and the facts. However, for a person who is not conversant in English, the Constitution demands that the grounds be supplied in a language he can understand and, if he is literate, in a script he can read.

In this case the Court observed that, in order to satisfy the constitutional requirement of communicating the grounds of detention, the detained person must be given those grounds in a language he can understand and, if he is literate, in a script that he can read. The Constitution guarantees every person freedom of movement throughout the territory of India and has laid down detailed rules governing arrest and detention. By imposing limitations on personal liberty, the Constitution recognises the State’s power to legislate preventive detention, but only subject to the safeguards provided for the detained individual in clauses (4) and (5) of Article 22. One of those safeguards is the right of the detained person to be informed, in a language and script he can comprehend, of the precise reasons on which the order of detention is based, so that he may make an effective representation against that order. The Court found that, on the facts before it, the appellant had not been afforded the opportunity contemplated by law to make such an effective representation. On that basis the Court declared the detention illegal, set aside both the order of the High Court and the order of detention passed against him, and allowed the appeal.