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PATNA HIGH COURT
Meredith and Sarjoo Prasad JJ.
Brahmeshwar Prasad
Versus
State Of Bihar
Criminal Miscellaneous No. 977 of 1949 ;
Decided On : FEBRUARY 14, 1950
The detention provisions in Act III [3] of 1960 are completely inconsistent with those contained in Article 22, Clauses (4), (5) and (6) of Part III of the Constitution. Article 22 (4) says : “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-clauses (b) of Clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7)." Mr. Ghogh argues, and, in my opinion, quite correctly argues, that these provisions are completely inconsistent with the fundamental rights prescribed in Article 22, Clause (4), and consequently, directly the Constitution came into force these provisions became void under Article 13 (1). The learned Government Advocate has not denied, and he could not deny, the inconsistency, but has adopted three lines of reply; first, that steps were taken successfully to prevent the Act becoming void ; secondly, that the inconsistent provisions are severable from the main provision for detention, which, therefore, remains valid; and, thirdly, that, irrespective of whether the detention provisions in the Act became void or not, the continued detention of the petitioner is valid under and by reason of an order made by the President under Clause (7) of Article 22.
Fact of the Case:
The petitioner was a teacher in the Naugachia High English School. He was arrested on 3rd March 1949 under Section 161, Criminal P. C., and lodged in the Bhagalpur Camp Jail where he has been in custody ever since. On 13th March, there was a detention order under Act V [5] of 1947. That Act having been declared ultra vires and having been replaced by an Ordinance, there was a fresh detention order under the Ordinance on 6th June. That Ordinance in turn, was declared-ultra vires by this Court, and was replaced by Ordinance IV [4] of 1949, under which a fresh order was made and served on 6th July. On 6th December, the present application was preferred.
Finding of the Court:
The detention provisions of the Act, and with it the power to detain, lapsed on 26th January. Under Article 21 of the Constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law, and the detention cannot legally continue for one moment after the lapse of the law.
Issues: 1. Whether the detention provisions in Act III [3] of 1960 are inconsistent with those contained in Article 22, Clauses (4), (5) and (6) of Part III of the Constitution? 2. Whether the inconsistent provisions are severable from the main provision for detention, which, therefore, remains valid? 3. Whether the continued detention of the petitioner is valid under and by reason of an order made by the President under Clause (7) of Article 22?
Ratio Decidendi: 1. The detention provisions in Act III [3] of 1960 are completely inconsistent with those contained in Article 22, Clauses (4), (5) and (6) of Part III of the Constitution. Article 22 (4) says : “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-clauses (b) of Clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7)." 2. The inconsistent provisions are not severable from the main provision for detention, which, therefore, remains invalid. 3. The continued detention of the petitioner is not valid under and by reason of an order made by the President under Clause (7) of Article 22.
Final Decision: The detention of the petitioner is illegal and he should be set at liberty forthwith.
Meredith, J.
1. This is an application under Sec. 491, Criminal P. C. and also under Article 226, Constitution of India, made on behalf of one Brahmeshwar Prasad through and by his brother Rudreshwar Prasad. This detenu was a teacher in the Naugachia High English School. He was arrested on 3rd March 1949 under Section 161, Criminal P. C., and lodged in the Bhagalpur Camp Jail where he has been in custody ever since. On 13th March, there was a detention order under Act V [5] of 1947. That Act having been declared ultra vires and having been replaced by an Ordinance, there was a fresh detention order under the Ordinance on 6th June. That Ordinance in turn, was declared-ultra vires by this Court, and was replaced by Ordinance IV [4] of 1949, under which a fresh order was made and served on 6th July. On 6th December, the present application was preferred. A rule was issued, and 16th January was fixed for hearing. It eventually came up on 18th January, this Court having in the meanwhile held that the provisions in the Ordinance for reference to an Advisory Council and report by that Council, were mandatory, and non-compliance would make the detention illegal. The Government Advocate, however, stated that a fresh detention order had been passed under Sub-section (1) (a) of Sec.2, Bihar Maintenance of Public Order Act (Bihar Act in [3] of 1950), which had replaced the Ordinance on 4th January 1960, and he asked for a fresh adjournment to prove that order. He was given an adjournment for seven days, and it has been established that in facts a fresh detention order under Act in [3] of 1960 was passed on 16th January, and was served on 16th.
2. By the time the matter once more came up for hearing, the New Indian Constitution had come into force, and Mr. Basanta Chandra Ghose on behalf of the petitioner asked that the application should be treated as one also under Article 326 of the Constitution, and contended that Act III [3] of 1960, at least in so far as it related to detention, had become void on 26th January i960, as being repugnant to certain of the provisions prescribing fundamental rights in Pact III of the Constitution, and consequently the detention, being under a void Act, had since the 26th January become illegal.
3. Article 13 (1) of the Constitution provides:
"All laws in force in the territory ot India immediately before the commencement of this Constitution, in so far aa they are inconsistent with, the provisions of this Part, shall, to the extent of such inconsistency, be void."
Mr. Ghosha contention is that there is an inconsistency, and that the inconsistent provisions ara not severable from the remaining provisions with regard to detention,
4 In order to understand his argument, it is necessary to set out briefly the scheme of the Act in relation to detention. Under Sec.1 (2), the Act is to remain in force for a period of two years from the date of its commencement. Under Sec.2 (1) (a) the Provincial Government, if satisfied with respect to any particular person that, with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of public order, it is necessary so to do, may make an order (a) directing that he be detained, and under Sec.2 (5) so long as there is in force in respect of any person such an order as aforesaid directing that he be detained, he shall be liable to be removed to and detained in such place and under such conditions, including conditions as to maintenance, discipline and the punishment of offences and breaches of discipline, as the Provincial Government may from time to time by general or special order specific?
5. Under Sec. 5 (3) the Provincial Government shall constitute an Advisory Council, whenever necessary, consisting of not less than three members who are or have been or are qualified to be appointed as Judges of a High Court. Under Section 5 (1) within 15 days of the service of the detention order, the grounds on which the order h
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