1. Detention under Rule 30 of the Defence of India Rules, 1962 — Challenge to the legality of successive detention orders following the cancellation of previous orders. (Para 2 , 3 )
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1966 Supreme(SC) 21
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., J C. SHAH, S.M. SIKRI, V. RAMASWAMI AND P. SATYANARAYANA RAJU, JJ.
1. Godavari S. Parulekar, etc. (In Cr. A. Nos. 142 to 149 of 1964), 2. B. K. Khopkar and others (In Cr. A. Nos. 225 to 227 of 1964); Appellants
Versus
The State of Maharashtra, (In all the Appeals), Respondent.
Criminal Appeals Nos. 142 to 149 and 225 to 227 of 1964.
Advocates appeared
Mr. R. K. Garg, Advocate of M/s. Ramamurthi and Co., for Appellant (In Cr. A. No. 142 of 1964), for all other Appellants, Appellants in Person; Mr. N. S. Bindra, Senior Advocate, (Mr. B. R. G. K. Achar, Advocate, with him), for Respondents.
Advocates:
B.R.G.K.Achar, N.S.BINDRA, R.K.GARG
B.R.G.K.Achar, N.S.BINDRA, R.K.GARG
Delegation of power does not divest the delegator of their authority. A fresh detention order issued during habeas corpus proceedings is not inherently malicious, and the subjective satisfaction of the detaining authority regarding the necessity of detention is non-justiciable.
Headnote:(A) Defence of India Rules, 1962 - Rule 30 - Delegation of power - Delegation does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself - By issuing a notification delegating powers to subordinates, the government is not denuded of its own power to act under the rules. (Paras 5, 6)
(B) Detention Orders - Joint satisfaction of Ministers - Valid orders of detention can be passed even if the relevant subjects are not concentrated in the hands of one Minister - Two Ministers may be successively satisfied that it is necessary to detain a person for different reasons, and such decisions can be carried out by one authenticated order. (Para 7)
(C) Malice in Law - Habeas Corpus proceedings - The mere fact that a detention order is passed during the pendency of habeas corpus proceedings cannot by itself lead to the conclusion that the order is vitiated by malice in law - In the absence of proof of bad faith, the detaining authority can supersede an earlier order of detention challenged as illegal and make a fresh order which is free from defects and complies with the law. (Para 8)
(D) Justiciability - Satisfaction of detaining authority - It is for the detaining authority to be satisfied whether on the material before it, it is necessary to detain a person, and this question is not justiciable. (Para 10)
Facts of the case:
A person was detained under a preventive detention act, subsequently released, and immediately served with a fresh order of detention under the Defence of India Rules. The legality of the final detention order was challenged on the grounds that the state government had divested itself of power through delegation, that two ministers could not jointly pass such an order, and that the order was passed with malice in law to defeat pending legal proceedings.
Findings of Court:
The court found that the state government retained its power despite delegation to district magistrates. It further held that joint satisfaction by ministers for different grounds is legally permissible and that the timing of the order during the pendency of habeas corpus proceedings does not automatically constitute malice in law.
Issues: Whether the delegation of power to district magistrates divested the state government of its power to detain; whether two ministers could jointly pass a detention order; whether a detention order passed during habeas corpus proceedings is vitiated by malice in law; and whether the satisfaction of the detaining authority is justiciable.
Ratio Decidendi: Delegation of power does not result in the divestiture of the original authority's power. Joint satisfaction by different ministers for different grounds is valid. A fresh detention order issued during the pendency of a challenge to a previous order is not malicious unless bad faith is proven. The subjective satisfaction of the detaining authority is not subject to judicial review.
Result: Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Validity of detention order — Delegation of power to District Magistrates — Joint orders by Ministers — Malice in law — Sufficiency of material for public order. (Para 4 )
3. Delegation does not divest the delegator of power; joint satisfaction of Ministers is permissible; fresh orders during habeas corpus proceedings do not inherently imply malice in law. (Para 5 , 6 , 7 , 8 )
4. Delegation of authority does not denude the delegator of power; satisfaction of the detaining authority under Rule 30 of the Defence of India Rules is non-justiciable. (Para 6 , 10 )
5. Appeals dismissed; detention order held valid. (Para 11 , 14 )
6. Does the delegation of power to a subordinate authority divest the delegating authority of its own power to act?
No. Delegation does not imply a parting with powers but rather confers authority to do things the delegator would otherwise do themselves. The delegating authority is not denuded of its power to act. (Para 5 , 6 )
7. Can multiple Ministers jointly pass a detention order if they are satisfied for different reasons?
Yes. Two Ministers can be successively satisfied that it is necessary to detain a person for different reasons, and their decision can be carried out by a single authenticated order of detention. (Para 7 )
8. Does passing a fresh detention order during the pendency of habeas corpus proceedings automatically constitute malice in law?
No. If the government finds a previous order invalid, it may pass a fresh, valid order. Malice in law requires proof of bad faith beyond the mere timing of the order. (Para 8 )
9. Is the sufficiency of material used by the detaining authority to satisfy themselves under Rule 30 of the Defence of India Rules justiciable?
No. It is for the detaining authority to be satisfied whether the material before it makes detention necessary, and this question is not justiciable. (Para 10 )
Judgement
SIKRI, J.: These appeals by certificate granted by the Bombay High Court are directed against its judgment, dated April 13, 1964 in applications filed by the applicants under Art. 226 of the Constitution, and S. 491 of the Criminal Procedure Code. Criminal Appeal No. 143 of 1964 has become infructuous because the appellant, S. V. Parulekar, has died.
2. Mr. R. K. Garg appears on behalf of the appellant in Criminal Appeal No. 142 of 1964. It is common ground that the points arising in all the appeals are common, and in order to appreciate the points, it would be sufficient if the facts in Criminal Appeal No. 142 of 1964, relevant to the arguments addressed to us, are only given. The relevant facts given in Paras. 2 and 3 of the affidavit filed by the Under Secretary to the Government of Maharashtra are as follows:
2. With reference to Para 1 of the said Petition I say that the petitioner was detained under order, dated the 7th November 1962 issued by the District Magistrate, Thana, under the Preventive Detention Act, 1950. On 10th November 1962, the Government of Maharashtra revoked the order of detention, dated the 7th November 1962 issued by the District Magistrate, Thana, and the revocation order was served on the petitioner on the 11th November 1962. Thereafter the petitioner was served with another order of detention, dated the 10th November 1962 issued by the Government of Maharashtra under R. 30 of the DEFENCE OF INDIA RULES , 1962. Further by its order, dated the 25th September 1963, the Government of Maharashtra cancelled the said order of detention, dated the 10th November 1962 and in pursuance of the said cancellation order the petitioner was released from detention on 27th September 1963. After she actually came out of the Yeravda Central Prison gates and was a free woman, the fresh orders of detention and committal dated the 25th September 1963 issued by the Government of Maharashtra were served on her and she was again detained in the Yeravda Central Prison, Yeravda, Poona. Thereafter, by its order, dated the 3rd February, 1964, the Government of Maharashtra cancelled its order of detention, dated the 25th September 1963 and the petitioner was again released on the 4th February 1964. After the actually came out of the Arthur Road District Prison gates and was a free woman, she was served with a fresh order of detention, dated the 3srd February 1964 issued by the Government of Maharashtra under R. 30 of the DEFENCE OF INDIA RULES . 1962 and redetained with a view to prevent her from acting in a manner prejudicial to the defence of India, the public safety and maintenance of public order. The last two orders of cancellation and detention, dated the 3rd February 1964 are attached to the said petition as Annexures A and B, respectively.
(3) With reference to Para. 2 of the said petition I say that what is stated therein is generally correct. I further say that the petitioner is a Communist belonging to the Ranadive Group, which maintains that China has not committed any aggression on India and which actively propagates that view.
3. The High Court of Bombay held that the detention of the appellant from May 1963 to February 1964 was illegal but the order of detention passed on February 3, 1964 was legal, and accordingly the appellant could not be ordered to be released. It is this order of February 3, 1964, which is now the subject-matter of challenge.
4. Mr. Garg for the appellant raised the following points before us:
(1) That the State Government having delegated its powers conferred upon it under R. 30 of the DEFENCE OF INDIA RULES , 1962, by Notification Home Department (Special) No. S. B. III/DOR.1162-1, dated the 9th November 1962 to all District Magistrates within the limits of their jurisdiction subject to the conditions mentioned in the Notification, the State Government was not competent to pass an order of detention under R 30.
(2) That the order of detention is bad because two Ministers cannot le
