Judgement

SUBBA RAO, J. : Prabhakar Pandurang Sanzgiri, who has been detained by the Government of Maharashtra under R. 30 (1) (b) of the Defence of India Rules, 1962, in the Bombay District Prison in order to prevent him from acting in a manner prejudicial to the defence of India, public safety and maintenance of public order, has written, with the permission of the said Government, a book in Marathi under the title "Anucha Antarangaat" (Inside the Atom). The learned Judges of the High Court who had gone through the table of contents of the book, expressed their opinion on the book thus:

"..... We are satisfied that the manuscript book deals with the theory of elementary particles in an objective way. The manuscript does not purport to be a research work but it purports to be a book written with a view to educate the people and disseminate knowledge regarding quantum theory."

The book is, therefore, purely of scientific interest and it cannot possibly cause any prejudice to the defence of India, public safety or maintenance of public order. In September 1964, the detenu applied to the Government of Maharashtra seeking permission to send the manuscript out of the jail for publication but the Government by its letter , dated March 27, 1965, rejected the request. He again applied to the Superintendent, Arthur Road Prison, for permission to send the manuscript out and that too was rejected. Thereafter, he filed a petition under Art. 226 of the Constitution in the High Court of Maharashtra at Bombay for directing the State of Maharashtra to permit him to sent out the manuscript of the book written by him for its eventual publication. The Government of Maharashtra in the counter-affidavit it did not allege that the publication of the said book would be prejudicial to the objects of the Defence of India Act, but averred that the Government was not required by law to permit the detenu to publish books while in detention. The High Court of Bombay held that the civil rights and liberties of a citizen where in no way curbed by the order of detention and that it was always open to the detenu to carry on his activities within the conditions governing his detention. It further held that there were no rules prohibiting a detenu from sending a book outside the jail with a view to get it published. In that view the High Court directed the Government to allow the manuscript book to be sent by the detenu to his wife for its eventual publication. The State of Maharashtra has preferred the present appeal against the said order of the High Court.

2. The contentions of the learned Additional Solicitor-General may be briefly stated thus : When a person is detained he loses his freedom; he is no longer a free man and, therefore, he can exercise only such privileges as are conferred on him by the order of detention. The Bombay Conditions of Detention Order, 1951, which regulates the terms of the first respondent s detention, does not confer on him any privilege or right to write a book and send it out of the prison for publication. In support of his contention he relies upon the observations of Das, J., as he then was, in A. K. Gopalan v. State of Madras, 1950 SCR 88 at p. 291, wherein the learned Judge has expressed the view, in the context of fundamental rights, that if a citizen loses the freedom of his person by reason of a lawful detention, he cannot claim the rights under Art. 19 of the Constitution as the rights enshrined in the said article are only the attributes of a free man.

3. Mr. Garg, learned counsel for the detenu, raised before us the following two points : (1) a restriction of the nature imposed by the Government on the detenu can only be made by an order issued by the appropriate Government under Cls. (f) and (h) of sub-r. (1) of R. 30 of the Defence of India Rules, 1962, hereinafter called the Rules, and that too in strict compliance with S. 44 of the Defence of India Act, 1962, hereinafter called the Act, and that as the impugned restr