Shibban Lal Saksena versus the State of Uttar… — Writ and Judicial Review | Supreme Court (1954)

Shibban Lal Saksena versus the State of Uttar… — Writ and Judicial Review | Supreme Court (1954)

What the court decided

AI extract

Outcome

Petitioner directed to be set at liberty; the detention order of 5 January 1953 held bad in law and the detention illegal.

Issue for consideration

Whether the original detention order dated 5 January 1953 made under section 3(1)(a) of the Preventive Detention Act, resting on two grounds, can stand where the Government itself later found one ground (sub-clause (iii)) unsubstantial or non-existent and revoked detention under it while confirming under sub-clause (ii). +1 more

Court's answer

The original order of detention made on 5 January 1953 under section 3(1)(a) cannot be allowed to stand: where the Government itself has admitted that one of the grounds of the original order is unsubstantial or non-existent, the answer to whether the order can stand is in the negative, and the detention is consequently illegal.

Ratio / Principle

Where the detaining authority proceeds on two grounds and one of them is admitted to be non-existent or irrelevant, the whole detention order is vitiated: the position is the same as if one of the two grounds was irrelevant for the purpose of the Act or wholly illusory, which vitiates the order as a whole.

Key takeaways

The court can neither decide whether the grounds are good or bad nor attempt to assess in what manner and to what extent each ground operated on the mind of the detaining authority in creating the subjective satisfaction on which the order rests; to hold the surviving ground sufficient would substitute an objective judicial test for the executive's subjective decision, against the legislative policy of the statute.ratio¶43
The power to issue a detention order under section 3 depends entirely upon the satisfaction of the appropriate authority; the sufficiency of grounds of rational probative value, not extraneous to the legislative purpose, cannot be challenged in court except on grounds of mala fides, and a court is not even competent to enquire into the truth of the facts communicated as grounds under section 7.ratio¶43

Detailed headnote1 paragraphs

Preventive Detention Act IV of 1950, ss. 3(1)(a), 7, 8, 11 — Habeas corpus under article 32 by Shibban Lal Saksena, detained in District Jail, Gorakhpur by order of the District Magistrate dated 5 January 1953 on two grounds under sub-clauses (ii) and (iii) of s. 3(1)(a) (withholding of essential sugarcane supplies; incitement prejudicial to public order). After the Advisory Board (s. 8) heard him, the Government by communication of 13 March 1953 confirmed the detention under sub-clause (ii) but revoked it under sub-clause (iii), the Board having not upheld detention on that ground. Held (Mukherjea J.): (i) the power to detain rests entirely on the subjective satisfaction of the detaining authority; sufficiency of grounds of rational probative value is not open to judicial challenge save for mala fides, and the court cannot enquire into the truth of the grounds served under s. 7; (ii) where the detaining authority acted on two grounds and the Government itself admits one to be unsubstantial or non-existent, the original order under s. 3(1)(a) cannot stand — it is as if a ground were irrelevant or wholly illusory, which vitiates the order as a whole, since substituting an objective judicial test for the executive's subjective satisfaction is contrary to the legislative policy; (iii) the Government's simultaneous confirmation under one sub-clause and revocation under another is not what s. 11 contemplates, which allows either confirmation or complete revocation, with liberty to make a fresh order; (iv) the particulars for the second ground were sufficient for an effective representation under article 22(5). Petition allowed; petitioner directed to be set at liberty. Principle in Keshav Talpade v. The King-Emperor, [1943] F.C.R. 88, adopted; State of Bombay v. Atma Ram Sridhar Vaidya, [1951] S.C.R. 167, referred to.

418

1953

SUPREME COURT REPORTS [19541

SHIBBA.N LAL SAKSENA

Dec- 3

t!.

THE ST A TE OF UTT AR PRADESH

AND OTHERS.

[MuKHERJEA and N. H. BHAGWATI JJ.]

Preventive Detention .4ct IV of 1950 as amended by Act XXXIV of 1952 and Act LXI of 1952-Sections 3(1) (a) and 11Detaining authority giving two reasons for detention-One ground found to be non-existent-Hlhether order of detention sustainableConfirmation of detention order under one ground and revocatiou thereof under 2nd ground-Not contemplated by s. II.

The detention order \Vas n1ade containing two grounds under sub-clauses (ii) and (iii) of clause (a) of section 3 (!) of the Preventive Detention Act, 1950, as ani_ended by later Acts. In exercise of the po\vers under section 11 of the Act the Government confirmed the detention order against the <letenu under sub-clause (ii} of section 3 (!) (a) of the Act but as respects the second ground under sub-clause (iii) of section 3 (I) (a) of the Act the Government did not uphold his <letention and revoked it under this sub-clause :

Held, that the original order made under section 3 (!) (a) is not sustainable.

To say that the other ground \Vhich still remains is quite sufficient to sustain the order would be to substitute an objective judici:i.l test for the subjective decision of the executive authority \vhich is against the legislati'e policy underlying the statute. In such cases the position Vl'ould be the same as if one of these t\vo grounds was irrelevant for the purpose of the Act or was vvholl y illusory and this vvould vitiate the detention order as a whole.

Keshav v. The King-Emperor(') referred to.

It is \Vell settled that the power to issue a detention order under section 3 of the Preyentive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that section. The sufficiency of the grounds upon which such satisfaction purports to be based provided they have a rational probative value and are not extraneous to the scope or purpose of the legislati.\·c: provision_ cannot be challenged in a court of law except on the grounds of mala fides.

State of Bombay v. Atma Ram Sridhar Vaidya(') referred to. Section 11 of the Preventive Detention Act lays down what action the Government it to take after the Advisory Board has submitted its report. If in the opinion of the Board there is sufficient reason for the detention of a person the Government ma' confirm the detention order and continue the detention for ·sue·~ (1) [1943] F.c.R. 88. (2) [1csiJ s.c.R. 167.

S.C.R. SUPREME COURT REPORTS 419

period as it thinks proper. On the other hand if the Advisory Board is of opinion that there is no sufficient reason for the detention of the person concerned, the CJovenunent is in duty bound to revoke the detention order. Vlhat the Government has done in this case is to confinn the detention order and at the same time to revoke it under one of the.sub-clauses of section 3 ( 1) (a) of the Act. This is not \Vhat the section contemplates.

!953

Shibban Lal Saksena v. The State of Utlar PradeJh and Others·

ORIGINAL JuRISDICTION: Petition No. 298 of 1953. Under article 32 of the Constitution of India for a writ in the nature of habeas corpus.

Veda Vyas, Senior Advocate (S. K. Kapur, with him) for the petitioner.

D. P. Uniyal for the respondent. 1953. December 3. The Judgment of the Court was delivered by

MuKHERJEA J.-This is a petition under article 32 of the Constitution praying for the issue of a writ, in the nature of habeas corpus, directing the release of the petitioner, Shibban Lal Saksena, who is said to be unlawfully detained in the District Jail at Gorakhpur. The petitioner was arrested on the 5th of January, 1953, under an order, signed by the District Magistrate of Gorakhpur, and the order expressly directed the detention of the petitioner in the custody of the Superintendent, District Jail, Gorakhpur, under subclauses (ii) and (iii) of clause (a) of section 3 (1) of the Preventive Detention Act, 1950, as amended by later Acts. On the 7th of January following, the grounds of detention were communicated to the detenue in accordance with the provision of section 7 of the Preventive Detention Act and the grounds, it appears, were of a two-fold character, falling respectively under the two categories contemplated by sub-clause (ii) and sub-clause (iii) of section 3 (1) (a) of the Act. In the first paragraph of the communication it is stated that the detenue in course of speeches delivered at Ghugli on certain dates exhorted and enjoined upon the canegrowers of that area not to supply sugarcane to the sugar mills or even to withhold supplies from · them and thereby interfered with the maintenance of supply of sugarcane essential to the community. The other ground specified in paragraph 2 is to the effect that by

420 SUPREME COURT REPORTS

[1954T

1953

1953 usmg expressions, some of which were quoted under- Sf.ibban Lal neath the paragraph, the petitioner incited the Saksena v. cane-growers and the public to violence against The State of Uttar established authority and to defiance of lawful orders

Pradesh and directions issued b~ Government officers and ar,d Others. thereby seriously prejudiced the maintenance of public order. The petitioner submitted his representation against the detention order on the 3rd of February, 1953, and his case was considered by the Advisory Board constituted under section 8 of the Preventive Detention Act at its sittmg at Lucknow on the 23rd February following. The Advisory Board gave a hearing to the petitioner in person and after it had submitted its report, a communication was addressed on behalf of the Uttar Pradesh Government to the petitioner on the 13th of March, 1953, informing him that the Government, iu exercise of its powers under section 11 of the Preventive Detention Act, had confirmed the detention order against him under sub-clause (ii) of section 3 (1) (a) of the Act and sanctioned the continuation of his detention until further orders, or up to a period of 12 months from the date of detention. The second paragraph of this communication runs as follows: '

"The detenue mav please be informed that the Advisory Board did not uphold his detention und·er sub-clause (iii) of clause (a) of sub-section (1) of section 3 of the Preventive Detention Act. Governme:1t have therefore revoked his detention under this sub-clause." The petitioner has now come up before us with an application under article 32 of the Constitution and Mr. Veda Vyas, who appeared in support of the petition, has challenged the legality of the detention order made against his client substantially on two grounds.

It is argued in the first place that from the grounds served upon the petitioner under section 7 of the Preventive Detention Act, it appears clear that . the grounds which weighed with the detaining authority in

•

8.C.R. SUPREME COURT RJ<JPORTS 421

depriving the petitioner of his liberty are that his 1958 activities were, in the first place, preJ·udicial to the Shibban Lal maintenance of supplies essential to the community Saksena and in the second place were injurious to the mainv. tenance of public order. From the communication, The State ofUttar dated the 13th of March, 1953, addressed to the peti- Pragesh tioner, it appears, however, that the first ground did and thers. not exist as a fact and actually the Uttar Pradesh Mukher;ea J, Government purported to revoke the detention order under sub-clause (iii) of section 3 (1) (a) of the Preventive Detention Act. In these circumstances, it is contended that the detention order originally made cannot stand, for if the detaining authority proceeded on two grounds to detain a man and one of them is admitted to be non-existent or irrelevant, the whole order is vitiated as no one can say to what extent the bad ground operated on the mind of the detaining authority.

y

The other contention raised by the learned counsel is that the particulars, which were supplied to his client in connection with the second ground, are manifestly inadequate and of a partial character and do not. enable him to make an effective representation against the order of detention.

We may say at once that the second contention does not impress us. It is true that the sufficiency of the particulars conveyed to a detenu in accordance with the provision em bodied in article 22 ( 5) of the Constitution is a justiciable issue, the test being whether they are sufficient to enable the detenu to make an effective representation; but we are not satisfied that the particulars supplied to the detenu in the present case are really inadequate and fall short of the constitutional requirement. We do not think, therefore, that there is any substance in this contention.

(

The first contention raised by the learned counsel raises, however, a somewhat important point which requires careful consideration. It has been repeatedly held by this court that the power to issue a detention order under section 3 of the :Preventive Detentiop Act

[1954)

422

SUPREME COURT REPORTS

196a depends entirely upon the satisfaction of the appro- Shibban Lat priate authority specified in that section. The suffi- Saksena ciency of the grounds upon which such satisfaction v. purports to be ba~ed, provided they haYe a rational T.ht·. State of Utta.r probative value and are not extraneous to the scope Pracksh or purpose of the legislative provision cannot be mzct Other1t. challenged in a court of law, except on the ground of Mukherjea J. rnal,a fides(¹ ). A court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under section 7 of the Act. What has happened, however, in this case is somewhat peculiar. The Government itself, in its communication dated the 13th of March, 1953, has plainly admitted that one of the grounds upon which the original order of detention was passed is unsubstantial or nonexistent and cannot be made a ground of detention. The question is, whether in such circumstances the original order made nnder section 3 (1) (a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative. The detaining authority gave here two grounds for detaining th e petitioner. \Ve can neither decide whether these grounds are good· or bad, nor can we attempt to assess in what manner and to what ex tent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underl:ying the statute. In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. This principle, which was recognised by the-Federal Court in the case of Keshav Talpa.de v. The King-Emper<nf), seems to us to be quite sound and applicable to the facts of this case.

(1 ) Vide State of Bombay v. Atma R am SYidhr Vaidya., [1951} S.C.R. 16 . . (~) f.19H] F.C.R'. 88'.

I f

1

S.C.R. SUPREME COURT REPORTS 423

1953

We desire to point out that the order which the 1953 Government purported to make in this case under Shibban La section 11 of the Preventive Detention Act is not one Sal'8ena in conformity with the provision of that section. v. Section 11 lays down what action the Government is The State of Uttar to take after the Advisory Board has submitted its Pradesh report. If in -the opinion of the Board there is and Others. sufficient reason for the detention of a person, the Mukherjea J. Government may confirm the detention order and continue the detention for such period as it thinks proper. On the other hand, if the Advisory Board is of opinion that there is no sufficient reason for the detention of the person concerned, the Government is in duty bound to revoke the detention order. What the Government has done in this case is to confirm the detention order and at the same time to revoke it under one of the sub-clauses of section 3 (1) (a) of the Act. This is not what the seotion contemplates. The Government could either confirm the order of detention made under section 3 or revoke it completely and there is nothing in law which prevents the Government from making a fresh order of detention ifit so chooses. As matters stand, we have no other alternative but to hold that the order made on the 5th of January, 1953, under section 3 (1) (a) of the Preventive Detention Act is bad in law and the detention of the petitioner is consequently illegal. The application is allowed and the petitioner is directed to be set at liberty.

Petition allowed.

Agent for the petitioner: Ganpat Rai.- Agent for the respondent: 0. P. Lal.