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1971 Supreme(SC) 604

SUPREME COURT OF INDIA
S.M. SIKRI, C.J.I., J.M. SHELAT, I.D. DUA AND G.K. MITTER, JJ.
The State of W.B., Appellant (In all the Appeals)
Versus
Ashok Dey etc., Respondents.
Criminal Appeals Nos. 217 to 233 of 1971, D/- 19-11-1971.
Advocates appeared
Mr. Niren De, Attorney General for India, (M/s. D. N. Mukherjee, Sukumar Basu and G. S. Chatterjee, Advocates with him, for the Appellant (in all the Appeals); Mr. Niren De, Attorney-General for India, (M/s. R. H. Dhebar, Ram Panjwani and S. P. Nayar, Advocates, with him), for the Attorney-General for India in all the appeals; Mr. Somnath Chatterjee, Senior Advocate, (Mr. D. K. Sinha, Advocate, Mr. Rathin Das, Advocate of M/s. S. K. Ganguly and Co. and Miss Indira Jai Singh, Advocate, with him for Respondents (In Cr. As Nos. 219, 223 and 225 to 227 of 1971); Mr. Arun Prakash Chatterjee, Senior Advocate (Mr. Rathin Das, Advocate of M/s. S. K. Ganguly and Co., Mr. Dilip K. Sinha and Miss Indira Jai Singh, Advocates, with him), for the Respondents.

Headnote:

Constitution of India,1950 – Article 132(1),22(7),22(4) &(7),19(1)(d),254(2) and 356 - West Bengal (Prevention of Violent Activities) Act, 1970 - Protection against arrest and detention - These appeals have been presented to this Court pursuant to certificate of fitness granted by High Court under Article 132 (1) of the Constitution from a common judgment of that Court allowing 17 Writ Petitions presented on behalf of persons detained under West Bengal (Prevention of Violent Activities) Act, 1970 - In the High Court constitutional validity of the Act was challenged on the grounds that it was not a law made by Parliament as contemplated by Article 22 (7) of Constitution with the result that extension of detention for a period longer than three months was unconstitutional - Sections 10 to 13 of Act were described as violative of Article 22 (4) and (7) of Constitution; (2) that restrictions both in respect of substantive law and in respect of procedure imposed by Act - Whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do so – Held, it would perhaps have been better if this aspect had been clarified in Act, but legitimately imputing to law-maker intention to enact a valid provision of law within constitutional limitations designed effectively to achieve its object and purpose, construction of cl. (c), in court view, must be restricted as just explained, such restricted construction being admissible on statutory language and the legislative scheme - On this construction the challenge must fail - Before concluding court may mention that originally this appeal was heard by a Bench of five Judges, including court learned brother late Mr. Justice and before his sudden tragic death he had expressed his agreement with our decision and approved the draft judgement - Unfortunately, before the judgment could be announced the cruel hand of death snatched him away from court midst - Appeal was, however, again formally placed for re-hearing this morning before court - Result is that these appeals must be allowed and the judgment of the High Court set aside - As the counsel for the respondents state that there are some other points on the merit which require determination, writ petitions will now be heard and disposed of by High Court on those points - Appeals allowed.

Legal Category Hierarchy

  • constitutional law
    • preventive detention
      • article 22(7) jurisdiction (Para 3, 4, 5, 6, 7, 8, 9)
      • advisory board procedure (Para 1, 2, 4, 5)
      • maximum detention period (Para 2, 4, 5, 6)
    • fundamental rights
      • freedom of movement (Para 1, 2, 10, 11, 12, 13)
      • equality (Para 1, 2)
    • presidential rule
      • delegation of state legislature powers (Para 1, 10)

Table of Contents

1. Whether Article 22(7) imposes a mandatory obligation on Parliament to prescribe the maximum detention period and Advisory Board procedure, or is it merely a permissive provision?

Article 22(7) is an enabling or permissive provision and does not impose a mandatory obligation on Parliament. The word may in the opening part does not become shall for sub-clauses (b) and (c), and the State Legislature retains competence to legislate on these matters. (Para 4 , 5 , 6 , 7 )

2. Whether the State Legislature is competent to make laws providing for preventive detention beyond three months and prescribing Advisory Board procedure?

The State Legislature is competent to make laws for preventive detention beyond three months and to prescribe Advisory Board procedure, as Article 22(7) merely authorises Parliament and does not exclusively vest such jurisdiction in Parliament alone. (Para 2 , 3 , 7 )

3. Whether restrictions on the right to move freely under Article 19(1)(d) imposed by the Act are reasonable and in the public interest?

Restrictions on the right to move freely under Article 19(1)(d) are reasonable and in the interest of general public, given the historical background of violent activities by Naxalites and extremist groups in West Bengal and the President proclamation under Article 356. (Para 10 , 11 , 12 )

4. Whether causing insult to the Indian National Flag under Section 3(2)(c) of the Act falls within acting in any manner prejudicial to the maintenance of public order?

Causing insult to the Indian National Flag under Section 3(2)(c) must be construed to cover only acts capable of arousing public indignation, not acts done in complete privacy; thus it falls within the statutory expression acting in any manner prejudicial to the maintenance of public order. (Para 13 )

5. Whether the classification contemplated by the Act violates Article 14 of the Constitution?

The classification contemplated by the Act cannot be considered unreasonable, and the challenge under Article 14 of the Constitution is therefore repelled. (Para 2 )

Judgment

DUA, J.:- These appeals have been presented to this Court pursuant to certificate of fitness granted by the Calcutta High Court under Article 132 (1) of the Constitution from a common judgment of that Court allowing 17 Writ Petitions presented on behalf of the persons detained under the West Bengal (Prevention of Violent Activities) Act, 1970 (President s Act 19 of 1970) (hereinafter called the Act). In the High Court the constitutional validity of the Act was challenged on the grounds - (1) that it was not a law made by Parliament as contemplated by Article 22 (7) of the Constitution with the result that the extension of the detention for a period longer than three months was unconstitutional. Sections 10 to 13 of the Act were described as violative of Article 22 (4) and (7) of the Constitution; (2) that the restrictions both in respect of substantive law and in respect of procedure imposed by the Act on detenus right guaranted by Article 19 (1) (d) were unreasonable and, therefore, the Act was unconstitutional; and (3) that the Act was violative of Article 14 of the Constitution inasmuch as it gave arbitrary, unguided and uncanalised power to the State Executive without prescribing any guidelines for its exercise.

2. The High Court held that the Act was not a law made by Parliament in terms of Article 22 (7) of the Constitution. This conclusion is not questioned by the learned Attorney General before us and indeed he has conceded that the Act is not a law made by Parliament as contemplated by Article 22 (7). The High Court then considered the question of the effect of the Act, if it is to be deemed to be an Act passed by the West Bengal Legislature. On this point it came to the conclusion that the provisions contained in Sections 11 and 13 of the Act relating to the procedure before the Advisory Board in respect of the person detained for a longer period than three months was ultra vires Art. 22 (7) of the Constitution because under the said Article, Parliament alone has been invested with jurisdiction to legislate on these matters. The State Legislature was accordingly held to be incompetent to make a law prescribing procedure for the Advisory Board and also to make a law providing for detention for more than three months. On the question of applicability of Article 19 (1) the High Court came to the conclusion that it was not applicable to the impugned Act and, therefore, the Act could not be struck down as violative Art. 19 (1) (d) or under any other clause of Art. 19 (1). The challenge on the basis of Article 14 of the Constitution was also repelled as the classification contemplated by the Act could by no means be considered unreasonable. In the final result on the ground of invalidity of Sections 11 and 13 the Writ petition was allowed with respect to the detention of the detenus beyond the period of three months.

3. In this Court the learned Attorney General has concentrated his attack on the impugned judgment on the argument that Article 22 (7) of the Constitution does not confer exclusive jurisdiction on the Parliament to make a law for valid detention of persons for a period longer than three months and that the State Legislature is fully competent, to make laws for detention, to prescribe procedure for the Advisory Board and also to make law for detention for more than three months.

4. In order to appreciate the legal position it is desirable to reproduce Article 22 of the Constitution:

"22. Protection against arrest and detention in certain cases:

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the C












































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