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HIGH COURT OF CALCUTTA
SEN,K. C. CHUNDER,LAHIRI, JJ.
Sunil Kumar Bose
Versus
Chief Secretary to the Government of West Bengal
Criminal Misc. C. Nos. 51, 61, 81, 96 of 1950; 178 and 179 of 1949 and 15, 2448, 1 to 5 of 1950, etc.
Decided On : 27-02-1950
CONSTITUTIONAL LAW - Preventive detention - Bengal Criminal Law Amendment Act, 1930 (Bengal Act VI of 1930) - West Bengal Security Ordinance, 1949 - Validity - Whether the Acts are void for being inconsistent with the provisions of Part III of the Constitution of India - Whether the Preventive Detention (Extension of Duration) Order, 1950, made by the President of the Indian Republic can have any effect so far as the Bengal Criminal Law Amendment Act, 1930 and the West Bengal Security Ordinance, 1949 are concerned - Whether the Adaptation of Laws Order, 1950, is valid - Whether the detentions are valid under the Preventive Detention Act, 1950.
Fact of the Case:
The petitioners were detained under the Bengal Criminal Law Amendment Act, 1930 and the West Bengal Security Ordinance, 1949. They filed habeas corpus petitions challenging the legality of their detention.
Finding of the Court:
The Court held that the Bengal Criminal Law Amendment Act, 1930 and the West Bengal Security Ordinance, 1949 are void for being inconsistent with the provisions of Part III of the Constitution of India. The Court also held that the Preventive Detention (Extension of Duration) Order, 1950, made by the President of the Indian Republic cannot have any effect so far as the Bengal Criminal Law Amendment Act, 1930 and the West Bengal Security Ordinance, 1949 are concerned. The Court further held that the Adaptation of Laws Order, 1950, is invalid. The Court, however, did not express any opinion on the validity of the detentions under the Preventive Detention Act, 1950.
Issues: 1. Whether the Bengal Criminal Law Amendment Act, 1930 and the West Bengal Security Ordinance, 1949 are void for being inconsistent with the provisions of Part III of the Constitution of India? 2. Whether the Preventive Detention (Extension of Duration) Order, 1950, made by the President of the Indian Republic can have any effect so far as the Bengal Criminal Law Amendment Act, 1930 and the West Bengal Security Ordinance, 1949 are concerned? 3. Whether the Adaptation of Laws Order, 1950, is valid? 4. Whether the detentions are valid under the Preventive Detention Act, 1950?
Ratio Decidendi: 1. The Bengal Criminal Law Amendment Act, 1930 and the West Bengal Security Ordinance, 1949 are void for being inconsistent with the provisions of Part III of the Constitution of India because: (a) They empower the Provincial Government to detain persons without any reasonable grounds or evidence of their involvement in any criminal activity. (b) They do not provide for any judicial review of the detention orders. (c) They allow the Provincial Government to detain persons for an indefinite period. 2. The Preventive Detention (Extension of Duration) Order, 1950, made by the President of the Indian Republic cannot have any effect so far as the Bengal Criminal Law Amendment Act, 1930 and the West Bengal Security Ordinance, 1949 are concerned because: (a) The Acts had already become void by reason of the provisions of Art. 13(1) of the Constitution of India before the Order was made. (b) The Order does not comply with the provisions of Art. 22(7)(A) and (B) of the Constitution of India. 3. The Adaptation of Laws Order, 1950, is invalid because: (a) It directs the Court to construe the law in a particular manner, which is contrary to the principles of judicial independence. (b) It delegates the President's power to adapt or modify laws to the Court, which is contrary to the principle of delegatus non delegate potest.
Final Decision: The Court directed that the petitioners be set at liberty forthwith.
2. Most of these rules were issued before the Constitution of India came into force and they were under S. 491, Criminal P.C. Thereafter the Constitution Act came into force by which the High Courts were given powers to issue, inter alia, writs in the nature of habeas corpus by Art. 226(1) and all the rules issued by this
Court were treated in the alternative as being rules nisi for the issue of writs of habeas corpus. The learned Advocate-General accepted this alternative and waived any claim to fresh notice.
3. We shall deal first with the question of the legality of the detention of the persons who have been detained by orders passed under the Bengal Criminal Law Amendment Act, 1930. The first point for consideration is whether the aforesaid Act is a valid law or not. In the argument urged on behalf of the detenus it was contended, inter alia, that this Act is not an Act for preventive detention. With that argument we shall deal later. We shall assume for the present that the Act provides for preventive detention and decide whether the Act is valid having regard to its provisions and the provisions of the Constitution Act. Before going into details we would like to emphasise the powers given to the High Court by the Constitution Act as regards deciding whether a statute is valid or void. In England Parliament is supreme and it can pass any law, however unreasonable it may seem, and to whatever extent it may curtail the liberty of the subject. Once the law is passed by Parliament the Courts are helpless. They must give effect to the law according to the recognised canons of interpretation of statutes. There is no power in the Courts to declare the law to be void or invalid. In this connection it would not be out of place to refer to certain observations made by Lord Wright in the well-known case of Liversidge v. Sir John Anderson, 1942 A. C. 206 at p. 260 : (1941-3 ALL E. R. 338).
"Parliament is supreme. It can enact extraordinary powers of interfering with personsl liberty. If an Act of Parliament, or a statutory regulation, like Reg. 18B, which has admittedly the force of a statute, because there is no suggestion that it is ultra vires or outside the Emergency Powers (Defence) Act, under which it was made, is alleged to limit or curtail the liberty of the subject or vest in the executive extraordinary powers of detaining a subject, the only question is what Is the precise extent of the powers given. The answer to that question is only to be found by scrutinizing the language of the enactment in the light of the circumstances and the general policy and object of the measure. I have ventured on these elementary and obvious observations because it seems to have been suggested on behalf of the appellant that this House was being asked to countenance arbitrary, despotic or tyrannuous conduct. But in the constitution of this country there are no guaranteed or absolute rights."
The position in the Republic of India is entirely different. Here, we have a written constitution in which certain fundamental rights are guaranteed to its citizens. These are mentioned in Part III, Constitution Act. If Parliament or any State Legislature makes any law taking away these fundamental rights except in the manner and to the extent provided in Part III, then that law is void to the extent of its inconsistency with the provisions of Part III (vide Art.
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