5 Judges Bench Judgement of High Courts Article 143

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1984 SCC OnLine Gau 42 : 1984 Cri LJ 1558 (FB)
(Gauhati High Court)

Full Bench
(BEFORE K. LAHIRI, N. IBOTOMBI SINGH, B.L. HANSARIA, S.M. ALI AND T.N. SINGH, JJ.* )
Hitendra Nath Goswami … Petitioner;

Versus
State of Assam and others … Respondents.
Civil Reference No. 203 of 1983 from Civil Rule (HC) No. 17 of 1983
Decided on January 6, 1984
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The Judgment of the Court was delivered by

N. IBOTOMBI SINGH, J.:— A question of law of general importance about the
interpretation of S. 14(1) National Security Act, 1980, read with S. 3(5) of the Act,
has been referred by the Division Bench to a larger Bench for determination, the
question being “whether on the report from the State Government under S. 3(5)
National Security Act, 1980, the Central Government has the discretion coupled with
duty to consider the question of revocation of detention order expeditiously,
irrespective of the fact that there is no representation/petition from the detenu to the
Central Government for the purpose”.
2. In the case out of which the question above has arisen, the detenu, Sri Hitendra
Nath Goswami, was detained by order dt. 5-1-83 of the State Government passed, in
pursuance of S. 3(2) of the Act. The State Government reported the fact of detention
to the Central Government together with the grounds on which the order has been
made, within 7 days of the order of detention, in compliance with sub-s. (5) of S. 3 of
the Act. The detenu, Sri Hitendra Nath Goswami, made no representation to the
Central Government (Sic) received the report on 28-1-83, considered and found it
prima facie valid. As a result, the order of detention has not been revoked by the
Central Government in exercise of its power under S. 14(1)(b) of the Act. As such a
question arose whether the discretion of the Central Government under S. 14(1) is
coupled with duty to consider the report made by the State Government, in pursuance
of sub-s. (5) of S. 3 of the Act with expedition, where no representation has been
made by the detenu to the Central Government to exercise its power of revocation
under S. 14 of the Act; and if not, its legal effect. In Joynath Sarma v. State of Assam,
(1983) 1 Gauhati LR 289 : (1984 Cri LJ 92), a Division Bench held that where no
decision has been taken either on the report or on the representation of the detenu by
the Central Government, the constitutional mandate under Art. 22(5) has been
violated, which renders the continued detention illegal, inasmuch as the Central
Government has failed to discharge its duty enjoined under S. 14 of the Act. In Bikash
Narayan Sarma v. State
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of Assam, (1983) 1 Gauhati LR 431 : (1984 Cri LJ 81), a case which arose in another
Bench of this Court, the Court found on the materials before it that the State
Government sent its report to the Central Government, in compliance with sub-s. (5)
of S. 3 of the Act, but the Central Government had not applied its mind to such a
report. The Division Bench held the view that though it was open to the Central
Government to revoke an order if it thought fit to do, a question of discretion coupled
with duty mention of which has been made in Sabir Ahmed would arise only when
petition/representation has been made. The Division Bench observed: “Indeed, Sabir
Ahmed has used this expression in the context of dealing with the
petition/representation; otherwise it would be a case of ‘complete discretion’ and not
reviewable by a Court of law”. In course of hearing of Hitendra Nath Goswami's case,
the Division Bench considered the question of law above to be of general importance
and referred it to a larger Bench for determination. This is how it has come up before
the larger Bench.
3. I proceed to consider first the cases in Julius v. Bishop of Oxford, (1874-80) All
ER Rep 43 and Padfield v. Minister of Agriculture, (1968) 1 All ER 694, which were
relied on by the Division Bench in Bikash Narayan Sarma's case (1984 Cri LJ 81), in
support of the proposition that the Central Government has ‘complete discretion and
not reviewable by a Court of Law’ on the report made under S. 3(5) of the Act. In
Julius's case, S. 3, Church Discipline Act, 1840, provided that with regard to certain
charges against any clerk in Holy Orders, it ‘shall be lawful’ for the Bishop of diocese
‘on the application of any party complaining thereof’ to issue a Commission for
enquiry. The Bishop declined, in exercise of his discretion, to issue Commission. A
question arose whether the Bishop was bound on the application of any party to issue
a Commission, or has a discretion to issue or not to issue the Commission.
4. It was held that the words ‘it shall be lawful’ for the Bishop to issue a
Commission gave the Bishop a complete discretion to issue or decline to issue a
Commission. There was no private or public right created by S. 3, Church Discipline
Act, 1840, which requires it to be construed as making it compulsory that the Bishop
should exercise the power given to him but he had an absolute discretion whether to
issue a Commission or not. Earl Cairns L.C. said: “The words ‘it shall be lawful’ are not
equivocal. They are plain and unambiguous. They are words merely making that legal
and possible which there would otherwise be no right or authority to do. They confer a
faculty or power, and they do not of themselves do more than confer a faculty or
power”.
5. Earl Cairns L.C. proceeded: “But there may be something in the nature of the
thing empowered to be done, something in the object for which it is to be done,
something in the conditions under which it is to be done, something in the title of the
person or persons for whose benefit the power is to be exercised, which may couple
the power with a duty, and make it the duty of the person in whom the power is
reposed to exercise that power when called upon to do so.”
6. Lord Penzance said: “The words ‘it shall be lawful’ are distinctly words of
permission only — they are enabling and empowering words. They confer a legislative
right and power on the individual named to do a particular thing; and the true
question is not whether they mean something different, but whether, regard being had
to the person so enabled, to the subject matter, to the general objects of statute, and
to the person or class of persons, for whose benefit the power may be intended to
have been conferred, they do or do not create a duty in the person on whom it is
conferred to exercise it.”
7. Lord Selborne said: “The question whether a judge or public officer to whom a
power is given by such words is bound to use it upon any particular occasion or in any
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particular manner, must be solved aliunde, and in general it is to be solved from the
context, from the particular provisions, or from the general scope and objects of the
enactment conferring the power”.
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8. In the contrasting case, Padfield (1968-1 All ER 694) (supra), the question was
whether action need be taken on a complaint. The Agriculture Marketing Act, 1958,
provided for the reference of certain complainants to a Committee of Investigation “if
the Minister in any case directs.” The Minister refused to act on a complaint by a group
of milk producers against the Milk Marketing Board. The question at issue in that
appeal was the nature and extent of Minister's duty under S. 19(3)(b) of the Act of
1958, in deciding whether to refer to the Committee of Investigation a complaint as to
the operation of any scheme made by persons adversely affected by the scheme. The
Minister contended that he was given an unfettered discretion with regard to every
complaint either to refer it or not to refer it to the committee as he might think fit. The
House of Lords held the reasons for refusal to act to be inconsistent with the policy and
the object of the Act, which was that the relevant and substantial complaint should go
to the Committee in the absence of good reasons to the contrary. The permissive
words gave the Minister discretion, but he was not entitled to use his discretion as to
frustrate the policy and objects of the Act.
9. In Padfield's case (1968-1 All ER 694), Julius case (1874-80 All ER Rep 43) was
relied on by both the parties. Lord Rieid said: “So there is ample authority for going
behind the words which confer the power to the general scope and objects of the Act
in order to find what was intended. In Julius case no question was raised whether
there could be a discretion but a discretion so limited that it must not be used to
frustrate the object of the Act which conferred it; and I have found no authority to
support the unreasonable proposition that it must be all or nothing — either no
discretion at all or an unfettered discretion. Here the words “if the Minister in any case
so directs” are sufficient to show that he has some discretion, but they give no guide
as to its nature or extent. That must be inferred from the construction of the Act of
1958 read as a whole, and for the reasons which I have given I would infer that the
discretion is not unlimited, and that it has been used by the Minister in a manner
which is not in accord with the intention of the statute which conferred it.”
10. Lord Pearce agreeing with Lord Reid observed:
“It is quite clear from the Act of 1958 in question that the Minister intended to
have some duty in the matter. It is conceded that he must properly consider the
complaint. He cannot throw it unread into the waste paper, basket. He cannot
simply say (albeit honestly) ‘I think that in general the investigation of the
complaints has a disruptive effect on the scheme and leads to more trouble than
(on balance) it is worth; I shall therefore never refer anything to the committee
for investigation’. This was clearly never intended by the Act of 1958. Nor was it
intended that he could silently thwart its intention by failing to carry out its
purpose”.
11. Lord Pearce further observed:
“Parliament intended that certain subsequent complaints (involving the public
interest) under the compulsory scheme should be considered by the
Investigation Committee. It was for the Minister to use his discretion to promote
Parliament's intention”.
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12. The reasons given by the Minister were held not to be consistent with the
objects of the Act.
13. The decision in Julius's case (1874-80 All ER Rep 43) rested on the construction
of the Church Discipline Act, 1840, and the decision also makes it clear that in the
context of the Act is to be found how a power given by it is to be exercised. In Padfield
case (1968-1 All ER 694), it was held that the Minister could not act as to frustrate the
policy of the Act, despite the fact that the words conferring power on the Minister were
permissive. The case is a living example of the abuse of discretion, and the importance
of the decision was underlined by Lord Denning. Mr. R. in Breen v. Amalgamated
Engineering Union, (1971) 2 QB 175 at p. 190. “The discretion of a statutory body is
never unfettered. It is a discretion which is to be exercised according to law. This
means at least this: the statutory body must be guided by
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relevant considerations and not by irrelevant. If its decision is influenced by

extraneous considerations which it ought not to have taken into account, then the
decision cannot stand. No matter that the statutory body may have acted in good
faith; nevertheless the decision will be set aside. That is established by Padfield v.
Minister of Agriculture. Fisheries and Food which is a landmark in modern
administrative law.”
14. Lord Denning in his book “The Discipline of Law”. 1979 edition, at page 104,
observed:
“The two outstanding cases are Padfield v. Minister of Agriculture, Fisheries
and Food, (1963) AC 997, and Secretary of State for Education and Science v.
Tarrieside Metropolitan Borough Council, (1977) AC 1014, where the House of
Lords have shown that when discretionary powers are entrusted to the Executive
by statute, the Courts can examine the exercise of those powers to see that they
are used properly, and not improperly or mistakenly. By ‘mistakenly’ I mean
under the influence of a misdirection in fact or in law”.
15. It will be appropriate at this stage to examine the nature and extent of power of
the Central (Govt.) contemplated in S. 14(1) read with S. 3(5) National Security Act.
It is necessary to consider the general scope and the object of the Act conferring a
discretionary power on the Central Government in order to find out what was intended
by the Act. I will start with the cases, where the Supreme Court made certain
observations from time to time on the general scope of the analogous provisions of
law.
16. In Hadi Bandhu Das v. District Magistrate, Cuttack, AIR 1969 SC 43 : (1969 Cri
LJ 274), the Supreme Court explained the principle underlying S. 13(2), Preventive
Detention Act, 1950, which is in pari materia with S. 14(1) of the Act, 1980, and
observed; “Negligence or inaptitude of the detaining authority in making a defective
order or in failing to comply with mandatory provisions of the Act may in some case
enure for the benefit of the detenu to which he is not entitled. But it must be
remembered that the Act confers power to make a serious invasion upon the liberty of
the citizen by subjective determination of facts by an executive authority, and the
Parliament has provided safeguards against misuse of the power and the principle
underlining S. 13(2) is, in our view, the outcome of insistence by the Parliament that
the detaining authority shall fully apply its mind to and comply with the requirements
of the statute and of insistence upon refusal to countenance slipshod exercise of
power.”
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17. In Haradhan Saha v. State of West Bengal, AIR 1974 SC 2154 : (1974 Cri LJ
1479), a Constitution Bench of 5 Judges expressed the view that S. 14, Maintenance
of Internal Security Act, 1971, which is in pari materia with S. 14, National Security
Act, 1980, provides that without prejudice to the provisions of S. 21, General Clauses
Act, 1897, detention order may at any time be revoked by the appropriate
Government. The same view was also expressed by the Supreme Court in Ram Bali v.
State of West Bengal, AIR 1975 SC 623 : (1975 Cri LJ 592), where it was held that it
is left with the Central Government in exercise of his discretion, either to exercise the
power read with the provisions of S. 21 General Clauses Act or without aid of S. 21,
General Clauses Act. See also Smt. Kavita v. State of Maharashtra, AIR 1981 SC
1641 : (1981 Cri LJ 1262). In Haradhan Saha's case (1974 Cri LJ 1479), the Supreme
Court observed: “S. 14 of the Act clothes the authority with the power of revoking or
modifying the detention order at any time. Such a power which is for the benefit of the
detenu carries with it the duty to exercise that power whenever and as soon as charge
or new factors call for exercise of that power.”
(Emphasis added)
18. In Sher Mohammad v. State of West Bengal, AIR 1975 SC 2049 : (1975 Cri LJ
1715), the Supreme Court had the occasion to consider S. 3(4), Maintenance of
Internal Security Act, 1971, which is mandatory in character. It held that this
procedural mandate is inviolable except
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on peril of the order being voided, if there is any infringement of the procedural
safeguards; the scheme of the Act is in keeping with Art. 22 of the Constitution and
the Act emphasises the various stages at which there will be consideration of the need
for the detention by different authorities, such as District Magistrate, the State
Government and ultimately the Central Government. For the effective exercise of this
power the scheme has been built into the statute.
19. It is ripe now to discuss the case cited in Joynath Sarma's case (1984 Cri LJ 92)
(Gauh) and Bikash Narayan's case, (1984 Cri LJ 81) (Gauh). In Mohd. Dhana Ali Khan
v. State of West Bengal, AIR 1976 SC 734 : (1976 Cri LJ 622), the Court ruled that S.
14 merely confers a discretion on the Central Government to revoke or modify an order
of detention made by the State Government. It does not confer any right or privilege
on the detenu. It is for the Central Government to revoke or modify the order of
detention after the report is submitted to it. The mere fact that the Central
Government does not choose to revoke or modify the order of detention without
anything more cannot necessarily lead to the irresistible inference that the Central
Government failed to apply its mind.
20. Mohd. Dhana Ali's case (1976 Cri LJ 622) was referred to in Sabir Ahmed v.
Union of India, (1980) 3 SCC 295, where it was held that the decision in that case
stood on its peculiar facts, and in principle, there was no conflict between the ratio of
that case and the two subsequent decisions in Tara Chand v. State of Rajasthan, AIR
1980 SC 1361 : (1980 Cri LJ 1015) and Shyam Ambalal Siroya v. Union of India, AIR
1980 SC 789 : (1980 Cri LJ 555). It may be stated that the observation of Supreme
Court in Dhana Ali's case is to be read in the context in which it was made. In the case
the Central Government was not a party nor was there any material before the Court
to show that the Central Government did not apply its mind under S. 14 of the Act.
But in the later case in Sat Pal v. State of Punjab, AIR 1981 SC 2230 : (1981 Cri LJ
1867), the Supreme Court while dealing with power of the Central Government under
S. 11 of COFEPOSA observed that, although it was earlier thought that S. 14,
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Maintenance of Internal Security Act, 1971, which is in pari materia with S. 11 of

COFEPOSA, did not confer any right or privilege on the detenu, there is a general
consensus of opinion that the power of revocation conferred on the Central
Government under S. 11 of the COFEPOSA is a supervisory power, and is intended to
be an additional check or safeguard against the improper exercise of its power of
detention by the detaining authority or the State Government.
21. In Tara Chand (1980 Cri LJ 1015) (supra), the Supreme Court held that when
representation by the detenu is made to the Central Government, it is duty bound to
consider the same in order to exercise its discretion either rejecting or accepting it. If
there is inordinate delay in considering the representation that would clearly amount
to violation of the provisions of Art. 22(5) so as to render the detention
unconstitutional and void. In Shyam Ambalal Siroya (1980 Cri LJ 555) (supra), the
Supreme Court held that the power of the Central Government under S. 11 of
COFEPOSA to revoke the order of detention implied that the detenu could make
representation to exercise that power; and any petition for revocation of an order of
detention should be dealt with reasonable expedition. As a statutory duty is cast upon
the Central Government it is necessary that the Government applies its mind and
either revoke the order of detention or dismiss the petition.
22. In Sabir Ahmed v. Union of India, (1980) 3 SCC 295, the Supreme Court
followed the ratio of Tara Chand's case (1980 Cri LJ 1015) and Shyam Ambalal
Siroya's case (1980 Cri LJ 555). It observed:
“Whether or not the detenu has under S. 11 a legal right to make a
representation to the Central Government is not really the question. The nub of
the matter is whether the power conferred by S. 11 on the Central Government,
carries with it a duty to consider any representation made by the detenu,
expeditiously. The power under S. 11 may either be exercised on
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information received by the Central Government from its own sources including that
supplied under S. 3 by the State Government, or, from the detenu in the form of a
petition or representation. Whether or not the Central Government on such
petition/representation revokes the detention is a matter of discretion. But this
discretion is coupled with a duty. That duty is inherent in the very nature of the
jurisdiction. The power under S. 11 is a supervisory power. It is intended to be an
additional check or safeguard against improper exercise of its power of detention by
the detaining authority or the State Government. If this statutory safeguard is to
retain its meaning and efficacy, the Central Government must discharge its
supervisory responsibility with constant vigilance and watchful care. The report
received under S. 3, or any communication or petition received from the detenu must
be considered with reasonable expedition. What is ‘reasonable expedition’ is a
question depending on the circumstances of the particular case. No hard and fast rule
as to the measure of reasonable time can be laid down. But is certainly does not cover
the delay due to negligence, callous inaction, avoidable red-tapism and unduly
protracted procastination.”
(Emphasis supplied)
23. In Rattan Singh v. State of Punjab, AIR 1982 SC 1 : (1982 Cri LJ 146), the
Supreme Court emphasised that the power under S. 11(1) of COFEPOSA in order to be
real and effective, must imply the right in a detenu to make a representation to the
Central Government against the order of detention. It accepted the principle laid down
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in Tara Chand's case (1980 Cri LJ 1015) (SC) and Shyam Ambalal Siroya's case (1980
Cri LJ 555) (SC) as the correct exposition of law. In Sat Pal (1981 Cri LJ 1867)
(supra), the Supreme Court also considered the supervisory nature of the power of the
Central Government under S. 11 of COFEPOSA and expressed the view that this
section which has the overriding power to revoke or modify a detention order, at any
time, made by the State Government, or by an officer of the State Government, has
been enacted by Parliament, as under our federal structure the centre must always
keep a vigilant eye in the matter of life or liberty of the citizen guaranteed under Art.
21. After referring to Arts. 256, 257 and 258(2) of the Constitution; it further held
that, where the Central Government finds that the order of detention made under S. 3
is mala fide or constitutes abuse of power on the part of the State Government or an
officer of the State Government specially empowered in that behalf, it may, at any
time, revoke the order of detention in exercise of its power under section.
24. What has emerged from a review of these cases is that, the Central
Government is clothed with supervisory power under S. 11 of the COFEPOSA and this
power is intended to be an additional check or safeguard against the improper exercise
of power of detention. For the effective exercise of the power, the scheme has been
built into the statute; and the Parliament has in its wisdom enacted S. 11 of the
COFEPOSA. A report received under S. 3 of the COFEPOSA or any communication or
petition received from the detenu must be considered with reasonable expedition.
25. Turning to the National Security Act, 1980 with which we are concerned, on the
ratio of Sher Mahammad (1975 Cri LJ 1715) (SC) (supra), the provision of S. 3(5) of
the Act is mandatory. On reading, of the Act as a whole, it is manifest that the scheme
of the Act is to provide a machinery for an effective exercise of the power of detention
at various stages by different authorities, such as, District Magistrate, State
Government and ultimately the Central Government, Parliament has invested the
Central Government with supervisory power to revoke or modify, at any time, the
detention order made by the State Government or office of the State Government
specially empowered in that behalf in exercise of its power under S. 14(1). S. 3(5) of
the Act which obligates the State Government to report the fact of detention along
with the grounds of detention and other particulars bearing on it, within a stipulated
period, implies a corresponding duty in the Central Government that the Central
Government is to consider the report with reasonable
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expedition, notwithstanding that no representation has been made by the detenu to

the Central Government. It has to apply its mind to it, keeping in view the policy and
objects of the Act. Parliament intended that Central Government should always keep a
vigilant eye in the matter of life or liberty of the citizen guaranteed by Art. 21.
26. It is for the Central Government to revoke or not the detention order in exercise
of its discretionary power under S. 14(1) of the Act, on receipt of the report from the
State Government; but to borrow the words of Lord Pearce in Padfield's case (1968-1
All ER 694), the Central Government cannot ‘throw it unread into the waste paper
basket’. The report is intended to be considered with reasonable expedition; any delay
in the matter due to negligence, callous inaction, avoidable red-tapism and unduly
protracted procastination would defeat the intention of the Parliament. See Sabir
Ahmed ((1980) 3 SCC 295) (supra). As such, non-consideration of the report by the
Central Government with expedition would be a breach of the procedural safeguard
provided by the Act, as an additional check against the improper exercise of power of
detention by the detaining authority and thereby violate Art. 21. It is a case where the
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Central Government may be considered to have failed to understand the object and
scope of S. 14(1) read with S. 3(5) of the Act and of its function and duties
thereunder.
27. To construe otherwise will also attract the vice of arbitrariness and unfairness
which are the sworn enemies of equality guaranteed under Art. 14 of the Constitution,
one procedure on representation made by the detenu to the Government and a
different procedure on the report received from the State Government under S. 3(5) of
the Act. I may recall here the statement of law enunciated by, the Supreme Court in
Menaka Gandhi v. Union of India, AIR 1978 SC 597, where it is laid down that ‘the
procedure must be right and just and fair and not arbitrary, fanciful or oppressive,
otherwise it would be no procedure at all and requirement of Art. 21 would not be
satisfied.”
28. In Bikash Narayan (1984 Cri LJ 81) (Gauh) (supra), the Court made the
observation that the detenu can make no legal grievance against non-consideration of
the report by the Central Government. In my opinion, what is essential is not whether
the detenu can make a legal grievance or not in such a case, but the essence of the
matter is whether there is any breach of the procedural safeguard provided by
Parliament. The Court is sentinal qui vive of freedom of the individual; it is an ensuring
observance with the requirements of law, and even where requirement of a law is
breached in the slightest measure, the Court will not hesitate to struck down the order
of detention or to direct release of the detenu even though detention may have been
valid till the breach occurred. See Smt. Icchu Devi Choraria v. Union of India, AIR
1980 SC 1983.
29. It is the requirement of law as declared by the Supreme Court in Sabir Ahmed's
case ((1980) 3 SCC 295) and Sat Pal's case (1981 Cri LJ 1867) (SC) that, “a report
received under S. 3 or any communication or petition received from the detenu must
be considered with reasonable expedition.” What is reasonable expedition, however,
requirement of law is breached, the legal consequence is that the order of detention is
liable to be set aside and the detenu set at liberty.
30. With respect, I am unable to agree with the view expressed in Bikash Narayan
(1984 Cri LJ 81) (Gauh) (supra) that on the report received under S. 3(5) of the Act,
the Central Government has ‘a complete discretion and not reviewable by a Court of
law’. It has been discussed in the earlier part of this judgment on the authority of the
Padfield's case (1968-1 All ER 694) and other English decisions that the discretion of a
statutory body is never unfettered; the discretion is to be exercised according to law.
Prof. H.W.R. Wade in his book ‘Administrative Law’, 5th Edition at page 355, said:
“Statutory power conferred for public purposes is conferred as it were upon trust, not
absolutely that is to say, it
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can validly be used only in the right and proper way which Parliament when conferring
it is presumed to have intended. Although the Crown's lawyers have argued in
numerous cases that unrestrictive permissive language confers unfettered discretion,
the truth is that, in a system based on the rule of law unfettered Government
discretion is a contradiction in term. For the same reasons it makes no sense whether
there may be unreviewable administrative action. Unreviewable administrative action
is just as much a contradiction in terms as is unfettered discretion, at any rate in the
case of statutory power. The question which has to be asked is the scope of judicial
review. But that there are legal limits to every power is axiomatic.
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31. Padfield's case illustrates that Court can assert legal control over the allegedly
absolute discretion of the Minister of Agriculture. The House of Lords in that case held
that the Minister acted unlawfully, as the Minister's stated reasons showed complete
misapprehension of his duties and the discretion was not unlimited, and it has been
used by the Minister in a manner which is not in accord with the intention of the
statute which conferred it. The House of Lords further held that if in such a case the
Minister refused to give any reason, the Court might assume that he had no good
reason and was acting arbitrarily, and, therefore, failure or refusal to give any reasons
could not be regarded as a sufficient exclusion on the Court's surveillance. In my
opinion, the above principles would apply with equal force to the order of the Central
Government in exercise of the discretionary power under the S. 14(1) of the Act on the
report received from the State Government under S. 3(5) of the Act. Under the
scheme of the Act, discretion of the Central Government is not unlimited. Where the
Central Government does not apply its mind to the report with reasonable expedition
and exercise its power under S. 14(1) of the Act either rejecting or revoking the order
of detention, consistent with the policy and objects of the Act, or where it failed to
exercise the supervisory power under S. 14(1) of the Act even though the report prima
facie reveals mala fide or abuse of power on the part of the detaining authority or non-
compliance with the mandatory provisions of law, it is an act on the part of the Central
Government which would defeat the intention of the Parliament. This is never intended
by the Act, nor is it intended that the Central Government can silently thwart the
intention of Parliament by failing to carry out its purpose.
32. The case in John Martin v. State of West Bengal, AIR 1975 SC 775 : (1975 Cri
LJ 637), has established the proposition of law that the Central Government has a duty
to apply its mind to the representation, though no speaking order need be passed in
rejecting the representation made to the Central Government. The case has also
established that in regard to the report received from the State Government, it is
necessary that the Central Government applies its mind to it, though the mere fact
that the Central Government does not choose to revoke or modify the order of
detention without anything more does not necessarily lead to the irresistible inference
that the Central Government failed to apply its mind. Indeed, where circumstances
arise for exercise of power under S. 14(1) of the Act, a duty is cast on the Central
Government to exercise it. S. 14(1) is intended for the benefit of the detenu. The
observation of Lord Penzance already quoted in the eariler part of the judgment would
apply to the interpretation of S. 14(1) of the Act: “regard being had to the person so
enabled, to the subject matter, to the general objects of the statute, and to the person
or class of persons, for whose benefit the power may be intended to have been
conferred, such permissive words do or do not create a duty in the person on whom it
is conferred to exercise.” The power under S. 14 of the Act on the Central Government
is thus coupled with duty to consider the report with expedition and pass order in a
manner consistent with the policy and objects of the Act. There will be a clear violation
of Art. 21 of the Constitution if the report is
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not considered by the Central-Government with expedition.
33. About the reviewability of such omission or action, in my opinion, the Central
Government may not be able to disarm the Court for an appropriate order by taking
shelter in silence on the report. Here I quote a passage from the judgment of Law, J.
in The King v. Governor of Brixton Prison, ex parte Sarno, (1916) 2 KB 742 at 752:
“The arm of the law in this country would have grown very short, and the power of this
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Court very feeble, if it were subject to such a restriction in the exercise of its power to
protect the liberty of the subject as that proposition involves”. The above remark was
made in a case of a challenge to an order under the Aliens Restriction (Consolidation)
Order, 1914, where it was held that an applicant for habeas corpus would not
necessarily be foreclosed by the production of an order which was good on its face.
34. After conclusion of arguments of learned counsel of both sides, it is brought to
our notice that the Supreme Court has rejected the petition for special leave to appeal
to the Supreme Court under Art. 136 of the Constitution in Criminal Case No. 2170 of
1983 filed by the detenu against the judgment and order dt. 5-5-83 of the Division
Bench of this Court in Civil Rule (HC) No. 90 of 1983 (Jatin Mali v. State of Assam)
and in which this very question raised before us was involved. In that case, the view
taken in Bikash Narayan (1984 Cri LJ 81) (supra) was followed that a detenu can make
no legal grievance against non-consideration of the report by the Central Government
and that discretion to invoke the revocation power of the Central Government under S.
14 of the Act would be coupled with, duty only in those cases where
representation/petition has been submitted to that Government. The order of
detention of Jatin Mali was challenged on three grounds. One of the contentions raised
was that silence of the Union of India impleaded as a party in the case would show
that it had not considered the report sent by the State Government under S. 3(5) of
the Act, which itself furnished a good reason to set aside the order. All the three
contentions raised on behalf of the detenu were rejected and ultimately the petition
was dismissed. The Supreme Court by its order dt. 19-9-83 dismissed the petition for
special leave to appeal under Art. 136 of the Constitution in limine. The order reads
as: “In view of the order of dismissal of the leave petition above, a question arises as
to whether it is open for this Court to examine the question referred to us. Counsel of
both the parties are heard again on this ancillary point.
35. In my opinion, dismissal of the petition for special leave in limine does not
stand as a bar to our determination of this question. It cannot be held that the
decision of the Division Bench in Jatin Mali's case on the question above has been
upheld by the Supreme Court. Though the discretionary power vested in the Supreme
Court under Art. 136 is very wide, and not subject to any limitation it has been laid
down that this power is to be exercised sparingly and in exceptional cases only. The
Court held in Pritam Singh v. State, AIR 1950 SC 169 at p. 172 : (1950-51 Cri LJ
1270 at p. 1273) : “Generally speaking this Court will not grant special leave, unless it
is shown that exceptional and special circumstances exist, that substantial and grave
injustice has been done and that the case in question present features of sufficient
gravity to warrant a review of the decision appealed against”. This view was also
followed in Murtaza and Sons v. Nazir Mahammad Khan, AIR 1970 SC 668. Special
leave may be dismissed on various reasons where the question becomes academic. For
instance, question raised in the proceeding may become nugatory owing to
subsequent events; or the Supreme Court does not like to interfere under Art. 136 of
the Constitution with the Order of the High Court which may be considered to be
erroneous in law, where no exceptional circumstance is shown to exist in the case. The
order of dismissal of the special leave cannot be placed on the appellate jurisdiction on
merits, confirming or reversing the judgment or order of the Court below. The doctrine
of merger of the order of the Court below on the question involved in a case in the
order of
Page: 1570
the appellate Court made in appeal cannot be invoked, as the Supreme Court has not
decided finally this question in appeal and confirmed the judgment and order of this
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Court in Civil Rule (HC) No. 90 of 1983. It is the accepted principle that the appellate
order is the operative order after the appeal is disposed of which is the basis of the
rule that the order of the original Court or authority gets merged in the order of the
appellate Court whatsoever its decision, whether of reversal or modification or mere
confirmation. See (1) Collector of Customs, Calcutta v. Fast India Commercial Co. Ltd.,
AIR 1963 SC 1124 and (ii) Gojan Brothers (P.) Ltd. v. Ratan Lal Singh, AIR 1974 SC
1380. There is a mark distinction between these two proceedings — appeal and special
leave application.
36. That apart, it does not appear from the order of the Supreme Court as to
whether this particular question was urged by the counsel before the Supreme Court
at the time of hearing of the petition. As the petition was dismissed in limine without
passing a speaking order, it is difficult to deduce any principle of a binding nature
from such order by implication. Article 141 of the Constitution provides that the law
declared by the Supreme Court shall be binding on all Courts within the territory of
India. This Article gives a constitutional status to the theory of precedents in respect
of the law declared by the Supreme Court. But such a law can be declared only in
judgments, determining each question of law which arises in the case by laying down
the principles involved. In State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC
647, the Supreme Court held: “A decision is only an authority for which it actually
decides. What is of the essence in a decision is its ratio and not every observation
found therein nor what logically follows from the various observations made in it.” On
the principles discussed above, the question under reference is open to our
determination.
37. I have discussed at length the question under reference, and for reasons given
above, my answer is that the discretionary power of the Central Government under S.
14(1) of the Act in the context of S. 3(5) of the Act is coupled with duty to consider
the report received from the State Government with reasonable expedition,
notwithstanding that no representation/petition has been made by the detenu to the
Central Government: what is reasonable expedition depends on the circumstances of
the particular case: and in case of breach of such procedural safeguard, the detention
order is liable to be set aside and the detenu set at liberty.
38. S.M. ALI, J.:— I agree.
39. DR. T.N. SINGH, J.:— Mine is not a caveat but an addendum to the leading
judgment prepared by my noble brother, N.I. Singh, J. I propose merely to
supplement the reasons given, and thereby buttress the conclusions reached, by my
learned brother. The need for this separate and rather longish (though concurring)
note, arises to clear further doubts, if any, about my views expressed earlier on the
statutory provisions under consideration in this Reference. I would let this be
recorded, therefore, that in my considered opinion, the question referred to this Bench
has to be answered, and answered in the affirmative, as proposed in the leading
judgment.
40. Indeed, how can one dispute the proposition that Ss. 3(5) and 14(1). National
Security Act (Shortly the Act) must be read in the context of Arts. 14, 21 and 22(5) of
the Constitution and not in isolation: If that be so, there is no escape, in my opinion,
from the conclusion that the duty cast on the Central Govt. to consider expeditiously
the report made to it under S. 3(5) cannot be whittled down by converting the
constitutional duty into a pure “discretionary power” in view of what has been laid
down in Sabir Ahmed ((1980) 3 SCC 295) and Sat Pal (1981 Cri LJ 1867) (SC) (both
supra). There is no scope, in my opinion, to obfuscate the issue by importing the alien
and unconstitutional concept of “absolute discretion”.
CLEARING THE DECKS
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41. However, before I proceed to state briefly my reasons for reaching the above
Page: 1571
conclusion, it is necessary that I should clear the decks first. Because, the opinion of
the Court in Joynath (1984 Cri LJ 92) (Gauh) (supra) was delivered by me and I was a
party to Jatin Mali wherein Bikash Narayan (1984 Cri LJ 81) (Gauh) was referred to.
The last mentioned decision is said to conflict with Jovnath and via Jatin Mali it is
claimed to have emerged as a binding precedent rendering the reference under
consideration redundant and infructuous. Indeed, the validity of the dicta in Sabir
Ahmed ((1980) 3 SCC 295) and Sat Pal (1981 Cri LJ 1867) (SC) has been put in issue
in the course of hearing of this reference relying on what appears to me, a
misconceived proposition of law. I have no doubt in my mind that the one line decision
of the Supreme Court (“Special leave petition is dismissed”) rendered on 19-9-83, in
SLP (Cri) No. 2170/83, Jatin Mali v. State of Assam, was not meant to be, and did not
in law and fact, result in nullification of all that was stated by the Court earlier in the
reasoned judgments in Sabir Ahmed and Sat Pal.
42. I do not think it necessary to discuss the scope and application of the doctrine
of merger in this context. I have no doubt about the true legal position and it would
be, therefore, an exercise in futility. In Jatin Mali the view of a Division Bench of this
Court on the scope of S. 3(5) of the Act was stated merely by referring to a decision of
another Division Bench in Bikash Narayan (1984 Cri LJ 81) (Gauti). In Jatin Mali,
which went to Supreme Court, the reasons for the view taken were not stated. There
was no occasion, therefore, for the Supreme Court to examine the reasons on which
the view expressed therein by this Court was founded. Where is therefore, the scope
for merger L. True, if Bikash Narayan was taken in appeal to the Supreme Court, the
position would have been different. Then only the issue could be adjudged and
“merger” accomplished through a conscious judicial process. However, even if it be
held that the judgment of this Court in Jatin Mali merged in the decision on the S.L.P.
given by the Supreme Court, that would hardly be material in so far as this reference
is concerned. Because, merger simpliciter would procure for it finality merely in the
matter of conclusion and that too in so far as the lis litigated was, concerned. For,
“merger” is but an off spring of “res judicata”. By merger the decision would not ipso
facto became “law within the meaning of Art. 141 of the Constitution and in this case
we are faced squarely with the question as to which precedent this Court is
constitutionally obligated to follow. In other words, whether in Jatin Mali's S.L.P. case
the decision rendered was “law” so as to attract the application of Art. 141? This, in
my opinion, is the question to which we have to address ourselves.
43. The bare fact that the appellate Court in Jatin Mali's S.L.P. Case) happened to
be the Supreme Court would not make, in my opinion, the decision is question “law”
within the meaning of Art. 141 so as to foreclose judicial debate at a lower level on a
point of law on which no opinion is expressed therein. A decision to be “law” under Art.
141 must not be a mere conclusion by which the case is disposed of. Because, a
conclusion, mere conclusion, may be on facts; it may not, and does not, necessarily
involve consideration of law. And Art. 141 will not be attracted if “law” is not
“declared” or stated vocally to support the conclusion reached for deciding the lis. A
mute declaration of the mere conclusion is not contemplated under Art. 141. Shortly,
when a speaking order is passed in any case by the Supreme Court indicating its
reasons for the decision rendered, then and then only Art. 141 will be attracted albeit
only as respects the point of law decided (see, Municipal Committee v. Hazara Singh,
AIR 1975 SC 1087 : (1975 Cri LJ 928) : Prakash Chandra v. State of U.P., AIR 1960
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SC 195 : (1960 Cri LJ 283)).
44. “Law” sans reason is incomprehensible. Reasons give the “law” its majesty.
Judicial exposition makes vocal, by right reasons, a mute statute to enable it to
command respect and obedience. A Judge ipse dixit may be danger (Sic) but is never
accepted as law and it was not meant to be the “law” under Art. 141. I have no doubt
that our founding fathers meant to endow the Supreme Court with the role of a
sagacious law-maker by repositing in
Page: 1572
Art. 141 this basis postulate of rule of law so that the institution survived vicissitudes
of time to support, as a pillar of strength, stability and wisdom our democratic
structure. Indeed, this position is verily reflected in our constitutional practice. Our
Supreme Court overrules (though sparingly) its own decisions. Why and how?
Admittedly, to test the validity of any decision on a point of law when questioned. This
can be, and is, done as its decisions manifest reasons which are reexamined in the
light of emerging social, economic and political norms to dispense the
multidimensional justice envisaged by the Preamble. When the Court is satisfied of its
error and its baneful effect on the general interests of the public, it does not hesitate
to review its own decisions (see, Bengal Immunity v. State, AIR 1955 SC 661.). The
term “law” has, therefore, to be so construed as not to negate or nullify the existing
constitutional practice. Law must grow, informed by the “spirit of inquiry and reform”.
Judges as citizens have a “Fundamental Duty” imposed on them by Art. 51A(h) of the
Constitution to carry on tirelessly this timeless process. However, even if Art. 141 is to
be considered an embodiment of the preexisting common law rule as to precedents
manifested in the doctrine of stare decisis, we may read with profit what was stated
long long ago in the ancient English Year Books. In 1327 Scrope recorded: “The king
has commanded us that we do law and reason according to that which has been done
in like cases (on semblable cases)” - (emphasis added); of Law in the Making, C.K.
Allen, 7th Ed., page 197.
45. I would, therefore, hold that the decision in Jatin Mali's S.L.P. case did not
amount, either to reconsideration by the Supreme Court of its opinion is expressed in
the earlier decisions in Sabir Ahmed ((1980) 3 SCC 295) and Sat Pal (1981 Cri LJ
1867) or to a declaration otherwise as a “law” under Art. 141 of the view expressed by
this Court in Bikash Narayan (1984 Cri LJ 81) which, indeed, was not even the subject
matter of the lis before it. The validity of the reference under consideration of this
Bench is, therefore, not indented or impaired in any way.
46. I may clear the lower deck as well even if I have to tarry a little before reaching
the jural juncture on the high seas. In Jatin Mali, the decision in Joy Nath (1984 Cri LJ
92) (Gauhti), which was cited at the Bar, was referred to and distinguished on facts.
Joy Nath, it was stated, was a case on representation. In para 10 itself it was further
observed: “As presently advised, we are of the view for the reasons given in Bikash
Narayan that in the absence of a representation, a detenu cannot make a grievance in
writ Court about non-consideration of the report sent to the Central Govt.”. Joy Nath
was also cited before the Court in Bikash Narayan and it was similarly distinguished on
facts, being a case of representation, in para 9 of the judgment in that case. It was
because of this position that I considered it unnecessary to append a separate note of
mine to indicate in categorical terms my own reasons for agreeing with the conclusions
reached by my learned brother, Hansaria, J. who delivered the opinion of the Court in
Jatin Mali wherein detenu's plea based on infraction of S. 3(5) of the Act was rejected.
The expression “as presently advised”, I consider, adequately protected my views and
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reservations. In so far as I am concerned, the plea was rejected because on the facts
of the case, Joynath could not be invoked. Indeed, there was no occasion, in Joy Nath,
to deal with the effect of non-consideration only of the report. In the respect (Sic) case
undoubtedly the reference in categorical terms makes a clear demand for an express
judicial pronouncement on the ambit and purport of 3(5) of the Act. Thus, I do not
consider myself bound by the views expressed by the Bench, albeit referentially, in
Jatin Mali. Indeed, in this reference the view expressed in Bikash Narayan is squarely
and pointedly in issue. I was not a party to this decision and I propose, therefore, to
express my opinion on the issue, uninhibited by what was stated in Jatin Mali.
LIBERTY ON HIGH SEAS.
Page: 1573
47. The law of preventive detention is tolerated as a “necessary evil” and the ship
of liberty is protected against the pernicious effect of the blizzard by means of
judicially untrenched procedural safeguards. Otherwise, on high seas, liberty's ship
has no chance of survival against “evil” spells of misdirected adventures. Indeed, this
judicial duty flows from the constitutional mandate but the mandate of the Preamble
or of Art. 21 itself sprang from the innate concept of liberty. Not long ago, the learned
American Judge learned Hand said that “liberty lies in the hearts of man and woman”.
Verily, he also declared, “when it dies there, no Constitution no law, no Govt. can save
it”. From Gopalan, AIR 1950 SC 27 : (1950-51 Cri LJ 1383) to A.K. Roy, AIR 1982 SC
710 : (1982 Cri LJ 340) is a long story. Happily, the value of liberty has risen in the
scale of justice. Though it is reiterated judicially from time to time that the law of
Preventive Detention is “not basically impermissible” under the Constitution, the
position which obtains today is that any law impinging on the right to personal liberty
is amenable to the test of not a single Article but the entire conspectus of Arts. 14, 19,
31 and 22. There is further the outstanding effect of A.K. Roy which has, in categorical
terms, laid down that a Preventive Detention measure cannot be used punitively. This
Court has therefore held in a number of cases, indeed in Bikash Narayan (1984 Cri LJ
81) (Gauhti) itself, that such infractions can be judicially interdicted (see also Naran
Tanti v. State, Civil Rule (HC) 79/83, decided on 25-3-83; Ranjan Goswami v. District
Magistrate, Civil Rule (HC) No. 110/83, decided on 17-5-83, etc). For the same reason
it can be said that the provisions of a law of preventive detention have to be so
construed as not to violate our own accepted view or the judicial mandate of the
highest Court of the land. In other words, the provisions are to be construed in a
manner as will ensure that the detention does not acquire a punitive character “at any
time”.
48. Briefly, the scheme of the Act, which is cast in the constitutional mould of Arts.
21 and 22 must and does manifest, according to me, the legislative intent to regulate
the power of preventive detention in a manner as will agree with minimum curtailment
of liberty and permitting recourse to the law only in cases of genuine “necessity”. S. 3
confers on the authorities concerned the “power to make orders to detain certain
persons” but we must read the provision carefully to see if this power is circumscribed
in its birth in any manner. So read, it appears to me that sub-ss. (1), (2) and (3) deal
generally with the activities which are considered “offensive” as well as with the
functionaries or the authorities who are invested with the power of a person when it
may be ‘necessari’ to detain him to achive this objective. In what manner and subject
to what conditions he may be detained are laid down in sub-ss. (4) and (5) and in
other provisions of the Act. In my opinion, sub-ss. (4) and (5) specify some of the
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conditions which circumscribe the power of detention provided in sub-ss. (1), (2) and
(3). The steps which are to be taken after a detention order is passed are stated in sub
-ss. (4) & (5) and improtantly this process is made time bound though in both cases a
“report” of this act is to be made to the authorities named therein. Sub-sec. (4)
besides embodying the constitutional requirement of furnishing, “as soon as may be”,
the “grounds” to the detenu, as provided under S. 8 of the Act, require further that
besides the said “grounds”, with the said report, “other particulars” have also to be
submitted “forthwith” to the State Govt. Sub-sec. (5) similarly provides for “grounds”
and “other particulars” to be submitted by the State Govt. to the Central Govt. with its
report after detention order is made or is approved by it. However, significantly, in sub
-s. (5) the nature of the “particulars” is also specified. This must have, it is stated, “a
bearing on the necessity for the order”
(Emphasis added).
49. In my opinion the provisions of sub-ss. (4) and (5) are in the nature of
conditions subsequent (commonly called “safeguards”) whereby the continuing
validity of the detention order or, in other words, the validity of the continued
detention, can, and has to be, tested. The recent decision of the Supreme Court in
Page: 1574
Merugu Satyanarayanan, AIR 1982 SC 1543 : (1982 Cri LJ 2357) establishes the
premises that the conditions precedent which are reflected in the first three sub-
sections manifest or project “necessity” as the true complexion of the power of
preventive detention (see also, Kanchanlal, AIR 1979 SC 1945 : (1979 Cri LJ 1306)).
That the main stay of continued detention is also the same is, therefore, not difficult to
appreciate. In sub-s. (4) the object of “necessity” is spelled out by providing the
consequence of the infraction thereof — automatic termination of detention. If sub-s.
(5) does not manifest a similar consequence, its requirement of furnishing within
seven days the particulars having a bearing on the “necessity” for the order (by which
the detention can be continued up to three months) obligates the Court to seek the
logical purpose and object of the said “necessity” I have no doubt that this object is
fulfilled by the provision of revocation provided in S. 14(1) and the purpose by the
constitutional mandate of Arts. 21 and 22.
50. It does not appear difficult to me to realise that the object of the time-table
inscribed in both sub-ss. (4) and (5) is to concretise the constitutional limitations
embodied by cls. (4) and (5) of Art. 22 to which the power of preventive detention is
expressly subjected. A constitutional duty, in my opinion, is imposed on the State by
virtue of Art. 21 to provided in the relevant statutory enactment machinery, one or
more, to evaluate the “necessity” of continued detention to ensure minimum
curtailment of liberty. Clause (4) of Art. 22 does not confer absolute power on the
State to continue uninhibited detention of person up to three months because in, cl.
(5) communication of grounds “as soon as may be” and “earliest opportunity of
making representation against the order” is envisaged.
51. If the right available to the detenu under Art. 22(5) is to be made meaningful
and effective then there must exist other suitable statutory machinery also besides the
constitutionally entrenched Advisory Board, whose role is not made effective until the
end of the three-month time-bridge. The statutory machinery, in my opinion, must
take care of the supervening events arising during the intervening period and indeed
also beyond it, after confirmation of detention on Board's report because the
“necessity” to detain may cease “at any time”. The moment it ceases the detention
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will acquire a punitive character and will be violative of the constitutional injunction.
Indeed, it is for this reason that in all successive preventive detention laws, enacted
since 1950, provision is invariably made for revocation of the detention order. This
provision, in my opinion, embodies the constitutional duty ingrained in Art. 22(5). I do
not read Art. 22(5) to confine its scope of operation to the consideration merely of
“representation” made by the detenu. If what Art. 22(5) aims to achieve is also
realised by a statutory provision, it must be said to be done in the performance of the
same constitutional duty. So, if the purport of Art. 22(5) is to terminate continued
detention if it is found not to be “necessary any further, it must be said that S. 14(1)
also achieves the same purpose. The purport of Art. 22(5), in my opinion is that if
continued detention is not “necessary” it must terminate and not that it can be
terminated only when a representation is submitted. Indeed, in S. 14(1) it is expressly
provided that “at any time” a detention order may be “revoked or modified”. The use
of the word does not, and cannot, sap the content of the constitutional duty mandated
by Art. 22(5).
52. In Bikash Narayan (1984 Cri LJ 81) (Gauhti) the decision of the Supreme Court
in Sabir Ahmed ((1980) 3 SCC 295) was considered and the observations made
therein were carefully noted. It was also noted that the Court did hold that, for the
reasons alluded, the Central Govt. was required to consider the report recorded by it
with “reasonable expedition”. Still, the Bench which decided the case took the view
that as it was a case in which a representation had in fact been made its ratio had to
be confined, therefore, to such a case. Why it was so held in Bikash: was it an obiter
dictum? I think, not, because, the point of law was not incidentally but directly raised
before the Supreme Court
Page: 1575
and it was duly decided. As a result, the unanimous decision of the Court on the point
of law became “law” binding on all Courts in the country in virtue of Art. 22(5).
Indeed, what question of law the Supreme Court faced is stated clearly in para 9 of
the report. Counsel for the State contended that the power of revocation, though of
supervisory nature, did not invest the detenu with a right to move the Central Govt.
for revoking the detention. The contention was rejected and reasons therefor were
given. In para 12 of the report reasons are stated. The Court held that the supervisory
power of revocation was a statutory safeguard and the power may “either be exercised
on information received by the Central Govt. or from its own sources including that
supplied under S. 3 by the State Govt. or from the detenu in the form of a petition or
representation”. It appears to me that the Bench deciding Bikash overlooked the word
“or” which proceded the expression herein underlined and as a result took a
constricted view of the said decision, by confining itself to the underlined expression.
It appears to me crystal clear that the gist of the decision was that the discretion to
revoke was “coupled with a duty” and as the Court observed, the duty was “inherent in
the very nature of the jurisdiction.” Thus, whether or not a report/representation was
made, the duty (“supervisory responsibility”) had to be discharged in any case. The
fact that Central Govt. had to act even suo motu to ensure “constant vigilance and
watchful care” indicated, in my opinion, the constitutionally entrenched nature of the
obligation which was manifested in the provision of revocation reposited in S. 14(1).
Indeed, the view expressed by me in the foregoing paragraphs, that the power of
revocation was a manifestation of the constitutional duty to ensure minimal
curtailment of liberty by regulating the detention period according to “necessity” so as
to prevent it from acquiring a punitive character, finds support from Apex Court's
views, just alluded. More about it is to be found in Sat Pal (1981 Cri LJ 1867) (SC) but
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before I proceed thereto I may add that detenu's standing to make grievance against
non-consideration of the report (which Bikash denied him) would in the premises
aforesaid become unquestionable. For breach of a constitutional duty the appropriate
remedy is nowhere but in the “constitutional” Court (or writ Court). Indeed, the “law”
of our land is that Judicial Review is a basic structure of our constitution and rules of
standing must, therefore, be subordinated to this concept.
53. Reference may now be made to Sat Pal (1981 Cri LJ 1867) (SC), although it
was not cited, and therefore not considered, in Bikash (1984 Cri LJ 81) (Gauhti). The
Supreme Court was called upon to decide in that case the question as to whether the
power of revocation of the detention order was exercisable only after the
representation was rejected by both State Govt. and Advisory Board and the detention
order was confirmed. Another proposition canvassed before the Court was that the
detenu has no right to make simultaneously a representation and an application for
revocation. The Court held in categorical terms that the purpose of a representation
under Art. 22(5) was to secure revocation of the detention order and both must be
dealt with by the appropriate Govt. simultaneously. It was further observed that the
“general consensus of opinion” (albeit judicial opinion) on the scope and nature of the
power of revocation had undergone a change. The vintage view that the detention No
“right or privilege” in the matter was not accepted any more. Echoing the view
expressed in Sabir Ahmed the Court held that the “supervisory power” was an
additional check or safeguard. There is no doubt that the modern view was explained
in detail in Sabir Ahmed ((1980) 3 SCC 295) though it was not cited in this case.
Similarly, the old view can be said to have been expressed in Dhana Ali (1976 Cri LJ
622) (SC) (supra) which was considered and distinguished in Sabir Ahmed though it
was accepted in Bikash.
54. Reliance, in my opinion, on Julius case (1874-80 All ER Rep 43) (supra), to
divine the nature of the jurisdiction under S. 14(1), is not permissible. Under a written
Constitution different considerations
Page: 1576
obviously arise while construing statutory provisions. It was not necessary in Julius to
test the provision on the anvil of any written guarantees of liberty. Indeed, Julius, on
which implicit reliance was placed in Bikash (1984 Cri LJ 81) (Gauhti) was on the
interpretation of the expression “it shall be lawful” which occurred in the 3rd section of
the Churc Discipline Act which appertained to the domain of Ecclesiastical laws.
Construing the expression with the aid of usual canons of construction it was held that
the natural meaning of the expression was permissible and enabling only and the
Bishop was given “complete discretion” to issue or decline to issue a commission to
any person for making inquiry in respect of any offence against Laws Ecclesiastical in
every case of any clerk in holy orders. It is beyond my comprehension how, therefore,
Julius can be accepted as a safe guide to divine the legislative intent of the provisions
of Ss. 3(5) and 14(1) of the Act which are amenable only to a “purposive”
interpretation, which is gaining currency even in England as expressed by the House of
Lords in Shah v. Barent B.C., (1983) 1 All ER 226. That apart, under Indian
constitutional set up the over arching concept of rule of law embedded in Art. 14 does
not countenance the concept of “complete discretion” (see Khudiram, AIR 1975 SC
550 : (1975 Cri LJ 446), Jaisinghani, AIR 1967 SC 1427). Our constitutional mandates
are inexorable; common law rules are flexible. Breach of procedural safeguard is
considered as a breach of constitutional duty and the order is struck down (see Sher
Mohmmad, AIR 1975 SC 2049 : (1975 Cri LJ 1751)).
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55. For the foregoing additional reasons, I concur with my learned brother's opinion
rendered in the leading judgment that the discretionary power of the Central Govt.
under S. 14(1) in the context of S. 3(5) is coupled with duty to consider the report
with reasonable expedition and for doing so any representation or petition by detenu is
not necessary.
56. HANSARIA, J.:— I have read with profit the judgment of my learned brother
N.I. Singh, J. I do not propose to express any view on the question referred because of
the following:
57. After this reference was once heard and the judgment was under preparation, it
came to our notice that the Hon'ble Supreme Court had dismissed in limine the
petition for special leave to appeal (S.L.P. for short) filed by one Jatin Mali whose
habeas corpus petition had been rejected by this Court. The importance of this
development lies in the fact that while dismissing Jatin Mali's prayed for writ of habeas
corpus, a Bench of this Court had approved of the decision rendered in Bikash Narayan
(1984 Cri LJ 81) on the point involved in this reference. In Jatin Mali, it was clearly
stated in para 10 that for the reasons given in Bikash Narayan, a detenu could not
make a grievance in a writ Court, in absence of a (Sic) sent to the Central
Government. This Court concluded by saying that “no infirmity has therefore been
introduced in the present case on account of the failure of the Union of India to file a
return stating that it had considered the report.”
58. As the question involved in this reference is the correctness of the above view
expressed in Bikash Narayan, and as the Supreme Court had dismissed the S.L.P. of
Jatin Mali where this view was affirmed, the Counsel of the parties were further heard
on the question whether this Court can still examine the correctness or otherwise of
the view. The pertinent question which arises is whether the order of this Court passed
in Jatin Mali has merged with that of the Supreme Court or not. If it has, this Court is
apparently not competent to decide whether the view expressed in Jatin Mali regarding
the nonconsideration of the report is legally sound or not.
59. It has, therefore, to be seen as when does the doctrine of merger operate. As
stated in C.I.T. v. Amritlal Bhogilal, AIR 1958 SC 868, if an appeal is provided against
an order, the decision of the appellate authority is the operative decision in law, and
the original decision merges in the appellate decision. Of course, this could be said
only where the order in question has been the subject matter of appeal. In Amrit Lal,
the order
Page: 1577
of the I.T.O. relating to registration was not held to be a subject matter of appeal
preferred by the assessee; indeed, such an order is not appealable. So, this part of
I.T.O.'s order was held revisable by the Commissioner, despite appellate order of the
I.A.C. It was therefore stated in State of Madras v. Madurai Mills, AIR 1967 SC 681
that merger is not a rigid doctrine, application of which depends on the nature of the
appellate or revisional order, and the scope of the statutory provisions conferring the
appellate or revisional jurisdiction. In Madurai Mills the only question raised in revision
was about deduction of tax collected by the assessee. It was therefore held that the
question relating to exemption of yarn purchased by the assessee and the order
passed thereon, had not merged with the revisional order. It may be stated here that
the doctrine of merger applies to revisional order also, as the power is, vide Shankar v.
Krishnaji, AIR 1970 SC 1, basically and fundamentally appellate.
60. It was laid down in Collector of Customs v. East India Commercial Company,
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AIR 1963 SC 1124, and Haji Esmail v. Competent Officer, AIR 1967 SC 1244 that
where the appellate authority has disposed on the appeal, the operative order is that
of the appellate authority, whether it has reversed, modified or confirmed the original
order. It was stated in para 5 East India Commercial Company that it is this principle
which says that the appellate order is the operative order after the appeal is disposed
which is the basis of the rule that the decree of the lower Court merges in the decree
of the appellate Court; this is irrespective of the decision, whether the same is of
reversal, modification or confirmation. It was made clear in the 1963 decision, which
was reiterated in Gojer Brother v. Ratanlal, AIR 1974 SC 1380, that even where an
appeal is dismissed, merger takes place.
61. To dislodge the effect of these decisions, the contention of Shri Medhi advanced
in written arguments is that in Jatin Mali there was no appeal before the Supreme
Court. It is difficult to accept this contention. The dismissal of S.L.P. has to be
regarded as in limine dismissal of the appeal itself. The provision of Art. 136 has to be
regarded as kin, in this context, to sub-s. (3) of S. 378, Cr PC, because of which no
appeal against acquittal is entertained except with the leave of the High Court. Now, if
leave is refused, it would be difficult to contend and hold that the High Court has not
affirmed the order of acquittal, and that trial Court's order has not merged with that of
the High Court.
62. Reference may usefully be made to Saheodan Singh v. Darao, AIR 1966 SC
1332. Though it has dealt with the question of res judicata, yet the two suits having
common issues were decided on merits and two sets of appeals were preferred
therefrom, but one set was dismissed on preliminary ground like limitation. The
question was whether the decision would operate as res judicata in so far as the other
set of appeal is concerned. The Court stated as below in para 20:
“Where the trial Court has decided two suits having common issues on the
merits and there are two appeals therefrom and one of them is dismissed on
some preliminary grounds like limitation or default in printing, with the result
that the trial Court's decision stands confirmed, the decision of the appellate
Court will be res judicata and the appellate Court must be deemed to have heard
and finally decided the matter. In such a case the result of the decision of the
appeal Court is to confirm the decision of the trial Court given on merits, and if
that is so the decision of the appeal Court will be res judicata whatever may be
the reason for the dismissal……”
63. This was founded on the proposition that “where a decree of the trial Court is
appealed from the decision of the trial Court loses the character of finality, and what
was once res judicata becomes res judice (res-sub-judice?) and it is the decree of the
appellate Court which will then be res judicata”. As such merger was read even where
dismissal of appeal was due to delay or non-printing of paper book.
64. For the case at hand, I do not propose to examine the question whether
dismissal of a petition under Art. 226
Page: 1578
without passing speaking order would prevent re-approach under that article, as that
is not the point involved here: Reference may however be made to a recent decision of
the Supreme Court in Jharia v. State of Rajasthan, AIR 1983 SC 1090 : (1983 Cri LJ
1647) where it was held that if the Court had earlier declined to interfere with a
matter under Art. 136, a petition for the self same matter under Art. 32 is not
maintainable.
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65. If the above legal position is borne in mind, there can be no dispute that the
order of this Court in Jatin Mali has merged with that of the Supreme Court. It is,
however, contended by Shri Medhi that as no reason has been given while dismissing
the SLP. and as what was merely stated by the Court was that “special leave petition
is dismissed”, it is not known what has really weighed with the mind of the Supreme
Court in dismissing the petition. Though this position is factually correct, legally it
does not make a difference. The Supreme Court has not been giving reasons for
dismissal of special leave petitions. In Associated Tubewells v. Gujarmal, AIR 1957 SC
742 this practice was noted and the Court observed that it did not want to depart from
the practice. Shri Medhi submits that recording of reasons is essential for validity of a
decision and refers M.P. Industries v. Union of India, AIR 1966 SC 671. That decision
has dealt with the necessity of recording reasons in orders passed by quasi judicial
tribunals. The raison d'etre of the same Court in a petition under Art. 136 of the
Constitution in M.P. Industries itself it was negatived that an order which omits to give
reason would be invalid on that ground alone. It was pointed out that in order of Court
dismissing an application often gives no reason, but that is not sufficient ground for
quashing it. (See para 18). As no appeal lies from the order passed by the Supreme
Court in a petition under Art. 136, one of the purposes requiring recording of reasons
does not apply to such an order.
66. Further, the order as passed, and as communicated to this Court by the
Registra of the Supreme Court under Memo No. D. 9233/83/SCCR. II dated 20-9-83
shows that the S.L.P. was dismissed on merits. Shri Medhi was fair in stating that the
ground relating to non-consideration of the report must have been taken in the S.L.P.
whether the same was urged in oral submission was, however, not known to him. As
to the raising of this point in the petition, there is nothing to doubt, as this was one of
the three submissions advanced before this Court in assailing the detention order.
Indeed, this point must have been urged in the Court also, as the two other infirmities
pointed out (1) non-existence of the ground and (2) vagueness of the same, are worn
out submissions, whereas there is no direct decision of the apex Court on the point
under consideration; and so the senior counsel appearing for Jatin Mali must have
prayed, indeed pressed, for a decision on this important question. Be that as it may,
as the order is definitely a final disposal of the appeal, and on merits, it cannot be said
that this Court's order has not merged with that of the Supreme Court.
67. For the doctrine of merger to apply it cannot be said that the appellate order
must contain reasons. It has been noted that sometimes though a case is heard for a
few days, ultimately the matter is disposed of only by observing that no infirmity has
been found in the main judgment and the appeal is dismissed. This is not a
hypothetical situation but had happened in Cril. Appeal 542/81 (H.K. Bhattacharyya v.
District Magistrate) which was heard by the Supreme Court for 8 days but the ultimate
judgment to be passed was only this:
“After hearing learned counsel of the parties at very great length we are of the
opinion that no interference with the impugned order is called for. The appeal is
dismissed and the order directing the Government to release the appellant on
parole is revoked.”
68. Similarly, at times, it is observed that a particular order is set aside for which
reasons (or detailed reasons) shall follow, but may not. This is what has happened in
A.K.M. Hassan Uzzaman v. Union of
Page: 1579
India, (1982) 2 SCC 218. Of course, if while disposing of an appeal by speaking order,
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only one point is dealt with and the order is reversed, the decision of the lower Court
on other points may remain unaffected as stated in Shri Prithivi Cotton Mills v. Broach
Municipality, AIR 1968 Guj 124. Similarly, if while disposing of the special leave
petition, the question of law is kept open, as was done in Management of D.T.C. v.
B.B.L. Majale, AIR 1978 SC 764, it could not be said that lower Court's views on points
of law have been confirmed. But when an appeal is disposed of after application of
judicial mind, though without giving reasons, the doctrine of merger cannot be ruled
out. The rider about judicial application of mind has been made because of the
decision of the Privy Council in Chandri Abdul Majid v. Jawahir Lal, AIR 1914 PC 66
where it was observed as below when an appeal had been dismissed for want of
prosecution:
“The brder dismissing the appeal for want of prosecution did not deal judicially
with the matter of the suit and could in no sense be regarded as an order
adopting or confirming the decision appealed from. It merely recognises
authoritatively that the appellant had not complied with the conditions under
which the appeal was open to him and that therefore he was in the same position
as if he had not appealed at all………. there is no decree by His Majesty in Council
in which it (the decree of the lower Court) had merged”.
69. Because of above, I have no doubt absolutely in my mind that the order passed
by this Court in Jatin Mali has merged with that of the Supreme Court. One of the
points urged therein related to alleged infirmity in the order of detention because of
non-consideration of the report by the Central Government. The comity existing
between the two Courts prevents me to examine the matter afresh in this reference. It
may, however, be stated that in taking this view, I may not be understood to have
denied myself the right to reexamine the matter because of Art. 141 of the
Constitution, as I am not satisfied if any principle of binding nature on the point under
reference can be read in the dismissal of the S.L.P. by the summit Court. So, the
dismissal order cannot be taken to be a law on the question of the effect on non-
consideration of report by the Central Government. I am, however, desisting because
of what has been stated about ‘comity’ between the two Courts.
70. Nonetheless, I have three comments to make. First, even if a matter is required
to be considered by an authority, the non-consideration of the same may not always
entitle an aggrieved person to approach a writ Court to seek redress. There are many
administrative instructions or interdepartmental communications whose violation
cannot be examined in a writ proceeding. Whether the present is such a matter, I do
not propose to say anything because I am refraining myself from reexamining the
issue because of what has been stated above. Secondly, when it was said in Bikash
Narayan (1984 Cri LJ 81) (Gauhti) that the question relating to consideration of the
report is a matter of ‘complete discretion, this expression was used in a special sense
(evident from the fact of its user within single quotes), and to distinguish it from
‘discretion coupled with duty’. (See para 12). It was never meant that any executive
authority has unfettered discretion. This view could not have been taken after referring
to Padifield (1968-1 All ER 694). Finally, Bikash Narayan has not said, indeed it could
not have in the face of Sabir Ahmed ((1980) 3 SCC 295) noted in the decision, that
the report need not be considered by the Central Government. (See para 9). What it
really examined was the question relating to the effect of non-consideration: Whether
the detenu could come in habeas corpus to seek his release on this score? This
question has its undoubted importance for the detenu.
71. K. LAHIRI, J.:— I agree to the conclusion reached by my learned brother
Hansaria, J.
72. Order accordingly.
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———
*
In this case the Judges of the Full Bench differ in their views. The majority view is taken by N. Ibotombi Singh,
S.M. Ali and Dr. T.N. Singh, JJ. and the minority view by K. Lahiri and B.L. Hansaria, JJ.
The judgments are printed in the order in which they are given in the certified copy.
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5 Judges Bench Judgement of High Courts Article 143

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5 Judges Bench Judgement of High Courts Article 143

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Page 1 Monday, September 13, 2021

1984 SCC OnLine Gau 42 : 1984 Cri LJ 1558 (FB)

(Gauhati High Court)

Hitendra Nath Goswami … Petitioner;

The Judgment of the Court was delivered by

relevant considerations and not by irrelevant. If its decision is influenced by

Maintenance of Internal Security Act, 1971, which is in pari materia with S. 11 of

expedition, notwithstanding that no representation has been made by the detenu to

not considered by the Central-Government with expedition.

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