Judgment

MATHEW J. (on behalf of himself, Ray C.J. and Chandrachud J.) :-In these writ petitions filed under Article 32 of the Constitution, the petitioners question the legality of their detention and pray for issue of writs in the nature of habeas corpus. These petitions raise a common constitutional question, namely, whether Parliament is bound to prescribe the maximum period of detention under Article 22 (7) (b) of the Constitution in order that the Proviso to Art. 22 (4) (a) might operate and, whether by Section 13 of the Maintenance of Internal Security Act. 1971 (Act 26 of 1971), hereinafter referred to as the Act, after it was amended by S. 6 (d) of the Defence of India Act 1971, the Parliament has prescribed the "maximum period."

2. The orders passed by the Government of West Bengal under Section 12 (1) of the Act in these cases provide that the Governor is pleased to confirm the orders of detention and to continue the detention of the detenus till the expiration of 12 months from the dates of their detention or until the expiry of the Defence of India Act. 1971, whichever is later.

3. The material part of S. 13 of the Act as it originally stood ran as follows :

"The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under S. 12 shall be twelve months from the date of detention".After it was amended by S. (6) of the Defence of India Act. 1971, the material part of S. 13 of the Act. reads :

"The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under S. 12 shall be twelve months from the date of detention or until the expiry of the Defence of India Act. 1971, whichever is later".

4. The Defence of India Act, 1971, came into force on December 1, 1971. Section 1 (3) of that Act provides that the Act shall come into force at once and shall remain in force during the period of operation of the Proclamation of Emergency and for a period of six months thereafter. Section 2 (g) of that Act defines "Proclamation of Emergency" as the proclamation issued under clause (1) of Article 352 of the Constitution on the 3rd day of December, 1971. The President issued the Proclamation of Emergency under Article 352 of the Constitution on December 3, 1971.

5. Article 22 (4) (a) of the Constitution says that no law providing for preventive detention shall authorize the detention of a person for a period longer than three months unless an Advisory Board has reported before the expiry of three months that there is in its opinion sufficient cause for such detention. The proviso to the Article provides that nothing in sub-clause (a) shall authorize the detention of any person "beyond the maximum period prescribed by any law made by Parliament under sub-cl. (b) of clause (7)" of Article 22. By reason of Article 22 (4) (b), a person can be detained for a longer period than three months without the necessity of consulting an Advisory Board if "such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7)" of Article 22 and, Article 22 (7) says :

"(7) Parliament may by law prescribe -

(a) the circumstances under which and the clause or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4) :

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)".

6. The contentions of the petitioners were that the Parliament was bound to prescribe the maximum period of detention under Article 22 (7) (b) of the Constitution in order that the proviso to Article 22 (4) (a) might operate and, as S.