Judgment

Kania, C.J.I.- I agree with the judgment prepared by Sastri J. & have nothing more to add.

2. Patanjali Sastri J. - The common question which arises for consideration in these petitions is whether certain provisions of the Preventive Detention (Amendment) Act, 1951, purporting to amend the Preventive Detention Act, 1950, so as to authorise detention of the petitioners to be continued beyond the expiry of one year are ultra vires & inoperative.

3. The Amending Act (hereinafter referred to as the new Act) came into force on 22- 2-1951, & by Sub-stituting the figures "1952" for "1951" in Sub-- S.(3) of S. 1, Preventive Detention Act, 1950, (hereinafter referred to as the old Act it continues the operation of the old Act till 31-3-1952.

4. The petitioners in all these case were, at the commencement of the new Act, under detention in pursuance of orders made under S. 3 (1) (a) (ii) of the old Act & save in a few cases where the detention was also attacked on some special grounds which have no Sub-stance, the legality of that detention was not open to question. But such detention having commenced more than a year before the date of bearing of these petitions, the petitioners would have been entitled to be released had it not been for the provisions of the new Act which purport to authorise the continuance of their detention .

5. Mr. Nambiyar, on behalf of the petitioners, urged that these provisions contravened Art. 22 (4)(a) of the Constitution and were, therefore, void under Art.13 (2). Art. 22 (4) (a) provides : 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 for 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--Cl. (b) of Cl. (7)."

6. It will be seen that two conditions have to be fulfilled in order that a person can be detained for a longer period than three months; (i) his case must be referred to an Advisory Board constituted in the manner specified & (ii) that Board must make a report before the expiration of three months that there is sufficient cause for such detention. S. 12 of the old Act having provided that there was to be no review by an Advisory Board in cases falling within s. 3 (1) (a) (ii), the petitioners detention in pursuance of orders made under the latter section fell under Art. 22 (4) (b), & there was no question, therefore, of such detention contravening Art. 22 (4) (a). The scheme of the new Act, however, was to extend the benefit of a review by an Advisory Board to all cases & to bind the detaining authorities to act conformably to the report of the Board. The method adopted to give effect to this scheme was to delete some of the provisions of the old Act & to Sub-stitute in their place new provisions.

7. The material provisions of the new Act are Ss. 9, 10, 11 & 12. S. 9 provides for a reference to an Advisory Board within six weeks from the date specified in Sub--s- (2) which says : "The date referred to in Sub--s- (1) shall be - (a) in every case where at the commencement of the Preventive Detention (Amendment) Act, 1951, the person is under detention in pursuance of a detention order made under Sub-.Cl. (i) or Sub- Cl. (ii) of Cl. (a) of Sub--s- (1) of S. 3, the date of commencement of the said Act; &(b) in every other case the date of detention under the order." By s. 10 the Advisory Board is required to Sub-mit its report within ten weeks from the date specified in Sub--S. (2) of S. 9. S. 11 (1) authorises the appropriate Govt. to continue the period of detention for such period as it thinks fit in case the Advisory Board reports that ther