A. Abdul Majeeth vs State of Tamil Nadu and Another

Balasubrahmanyan, J.—This is a petition for the issue of a writ of habeas corpus for the release of an individual going by the name of Palani

Baba. He was detained on 9-8-1982 by an order of the District Magistrate of Periyar District. This order was later approved by the State

Government. The detention was purported to be made u/s 3(2) of the National Security Act, 1980. The test of the order said that the detaining

authority was satisfied that it was necessary to detain Palani Baba to prevent him from acting in a manner prejudicial to public order.

Two documents were relied on by the detaining authority as materials for formulating its grounds of detention. One was the verbatim transcript

by an official stenographer of a speech in Tamil made by the detenu at Erode on 3-8-1982. The other was an affidavit sworn to by the Deputy

Superintendent of Police, Erode, who was a member of the police force in attendance at the meeting.

The grounds of detention were two in number. One was that the detenu by his speech had created enmity and hatred between different

communities and had also incited violence between those communities, thereby affecting the maintenance of public order. The second ground of

detention referred to other portions of the same speech to record the finding that the detenu had incited the audience to violence against the person

of the State Chief Minister and this led to stone-throwing in the public meeting. According to the detaining authority, the provocative speech

followed by the stone-throwing incident had created panic and terror among the people and thereby disrupted public order. The detaining authority

wound up the grounds by saying that if the detenu were allowed to remain free he would go on indulging in further activities of this kind.

Mr. Natarajan, appearing for the detenu, characterised these grounds as nor grounds at all. As for the first ground his grievance was that it was

far too vague to enable the detenu to understand what he was being charged with. Creation of feelings of enmity and hatred between communities

is a vague charge and the detenu was hard put to it to make any intelligible representations in this defence. As for the finding of the detaining

authority that the detenu''s speech incited violence between different communities, Mr. Natarajan said that the speech, read as a whole and not in a

truncated manner, was not susceptible to that interpretation. Learned counsel further said that public audiences in recent years in this part of the

country are so much accustomed to hear speeches in this strain that they do not take them seriously.

The learned Advocate General for the detaining authority, to start with, administered a caution against our entering into the inquiry as an

appellate body. He cited a recent Supreme Court decision in a Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, and said that

the court''s jurisdiction in cases of this kind begins and ends with finding out whether the detention procedures have or have not been complied

with. He cited the following passage from the judgment of the Supreme Court.

If the formalities have been complied with, the court cannot examine the materials before it and find that the detaining authority should not have

been satisfied on the materials before it and detained the detenu under the Preventive Detention Act, for, that is the function of an appellate Court.

We think it necessary to clear the ground first by restating what the scope of this court''s power of review is over orders of preventive detention.

We do not accept the Advocate General''s thesis, that we should stop short with doing a limited judicial audit of the detention procedures just to

verify and tick off, as it were, the various formalities such as service of the detention order, appending of the grounds, translation into the detenu''s

vernacular and the like. We do grant that detention orders are exclusively the province of the executive Government, and their subjective

satisfaction cannot be substituted by the Court''s own satisfaction. But preventive detention, as a permitted mode of depriving a man of his personal

liberty is yet subject not only to the severe conditions and safe-guards in the enabling statute itself, but also the guarantee laid down in the

Constitution. Article 22(4) sets down two such guarantees in unmistakable terms. They are (i) the right of the detenu to communication of the

grounds of detention and (ii) the right to the earliest representation possible for answering those grounds. In their very nature, these constitutional

guarantees are indestructible by any law passed by the legislature for preventive detention. Traditionally, as well as under the Constitution, the

superior Courts of the land like the High Courts and the Supreme Court are the only agencies who can find out if the guarantees have been

observed, whenever matters are brought before them. It is all very well to say that detention is a matter of subjective satisfaction of the executive.

But subjective satisfaction cannot do away either with the detenu''s constitutional guarantees or the jurisdiction of the courts to enforce them. The

requirement of the Constitution that grounds must be communicated to the detenu with a view to give him an early opportunity to meet them cannot

be dismissed as procedural, merely. They imply that the grounds must be intelligible, the product of a mind which is neither blank nor stuffed with

prejudice. Otherwise the right of representation in Art. 22(4) would be a mere eye wash. It becomes clear therefore, on principle, that the superior

courts who have the responsibility to administer the constitutional provisions must always have the doors of perception open in order to exercise

their jurisdiction. And in cases where they find that the detenu has not had a fair deal of his constitutional rights it is their duty to step in and

interfere. This role of the courts is what is theirs by rights, and that which is inalienable, under the Constitution. And when they proceed to play their

role truly and well, they cannot be dismissed as self appointed appellate tribunals. They really are playing the role of guardians of constitutional

safeguards.

The passage which the learned Advocate General quoted from the Supreme Court decision in Smt. Hemlata Kantilal Shah Vs. State of

Maharashtra and another, if read in isolation, would support the view that the High Court and the Supreme Court would be powerless to correct

transgressions even of the constitutional protections. We cannot readily attribute to the Supreme Court a ruling of this kind, which is a volte-face of

the established line of cases in this country bearing on preventive detention laws, right from the Defence of India Rules of four decades back to the

National Security Act which is hardly two years old. There are many cases in the books which show that even apart from their constitutional

compulsion courts have struck down detention orders which either disclose no materials in support of the grounds, or grounds which are not

germane to the order or grounds which are mala fide or perverse. For saying that this tradition of court interference for just causes has been

reversed, and the Supreme Court have put the clock back, we must have some indication to the effect that the court consciously set to work for

overruling earlier decisions. Far from there being any indication of an intention to hold the earlier rulings wrong, the Supreme Court in this very case

has taken the opportunity to restate the scope of the judicial review more clearly, if possible, than before, Adverting to a contention that the detenu

might compel the detaining authority to disgorge further materials than those which it chooses to divulge in the detention order, the Supreme Court

made following observation :-

The Court may not take into consideration any reply given by the detaining authority to such an enquiry; for the reply may be an afterthought. It

will be for the Court to judge whether the facts narrated constitute a ground of detention or which facts might possibly enter an influence the

detaining authority in coming to its subjective satisfaction.

We then must turn our attention to the two grounds which the District Magistrate, Erode, has set down as the grounds of detention of the detenu

in this case. As to the first ground, we think there is justification for the criticism that it is as vague as vague can be. The detenu is charged with

sowing the seeds of hatred and enmity between different communities. Between what different communities ? If our country, especially this part of

our country, had only two communities to count, communal hatred and enmity, even without explanatory notes, can have a fixed meaning. But our

communities are many and various not to speak of sub-communities, sub-caste tribes, sects and the like. The detenu''s speech, portions of which

were extracted in the grounds of detention, did contain polemics and diatribes against one community. The detenu belonged to another community.

The leader in whose honour the public meeting was arranged belonged to yet another community. The people who listened to the speech

numbered 5,00 and there is no knowing to which particular communities they or groups of them belonged. In these events, the reference to

different communities, without particularly naming who they were, vitiated the ground of detention, not only as a document composed as an

exercise of the police power, but also as a document which is meant to be understood and replied to by the detenu.

The other charge that the detenu''s speech incited people to intercommunal violence is also without support in the material on record before the

detaining authority.

Mr. Natarajan suggested that those who gather at public meetings of this kind in this part of the country do so for the sheer love of listening to

the speeches, whoever the speakers are, without getting emotionally involved. As a piece of social commentary what learned counsel says may be

right, but we must only go by the record. Our perusal of the documents relied on by the District Magistrate does not show that the speech although

as it now appears from the typescript to be incendiary, roused the audience or any section of it. The proof of the pudding is in the eating. There is a

first hand report of the speech made by a police shorthand writer who was present at that time. He not only took down what was said from the

platform, but also certain other observations. There is no mention that the references by the detenu to the Brahmins excited the audience into any

reaction, let alone violence directed against that community. On the contrary, the footnote entered by the shorthand writer reports that the audience

had listened to the speech with interest. The District Magistrate has not directed his attention to the reporter''s comment in this regard. He went by

his own reaction to the transcript of the text of the speech alone. Not having heard the speech in question personally it would only have been

proper for the detaining authority to have called for first hand reports from members of the audience to find out how the speech ''went'' and how it

was ''received''. There is a sea of difference between the spoken word, and a written record, of the spoken word. Luckily in this case there is the

observation of the official reporter that the speech only produced interest, and nothing more virulent than that. We hold therefore that the first

ground of detention fails.

As to the second ground of detention, Mr. Natarajan could scarcely explain away the vulgar and violent threats which the detenu addressed to

the Chief Minister. What learned counsel urged, however, was that they were, at best, a law and order problem, and not to be upgraded as a

problem of public order or tranquillity.

The learned Advocate General however said that while a threat to a private individual might be a law and order problem, the Chief Minister of

a State is the head of the Government and different consequences must flow. we grant that while under our electoral system any one of us, can any

day head a Government, we would cease to be mere individuals after we assume office. But we do not accept the implication that an attack on the

Chief Minister''s person is an attack on the State. None of our Chief Minister claim, like Louis XIV ''I am the State''. Nor do we have a

constitutional doctrine as in England that the person of the monarch is inviolable and would, if an attempt is made, be regarded as High Treason.

Indeed, our Penal Code makes a clear distinction between ''Offences against Public Tranquillity'' dealt with under Chap. VIII and ''Offences

against the State'' dealt with under Chap. VI. What is more, while assaulting the president of India and the Governor of a State are treated as

offences against the State, similar offences against Chief Ministers are not treated in that special manner. It would therefore seem that the

threatening portions of the detenu''s speech directed against the Chief Minister could only be tackled under the normal machinery of criminal

prosecution, and not be brought within the extraordinary public remedy of preventive detention.

It seems a paradox that things which may be milder than crimes against a person may be brought within the conception of public order, but not

first-rate law and order problems. But this apparent paradox is based on a real distinction between acts and things which have an initial or direct

impact on individuals and only incidentally affect the public at large, and acts and things which directly bear on the community or a sizable segment

of the community and then secondarily affect individuals and groups forming part of it. This apparently paradoxical distinction between public order

and law and order which is as old as the Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , if not older, explains many of the cases in the

books where persons who could easily be looked for serious crimes have been let out of preventive detention through court interference. We have

thus witnessed a man who had committed dacoity with deadly weapons in a house getting away with it under the preventive detention law Jatindra

Nath Biswas Vs. The State of West Bengal, . We have another case in the law reports of a young man who was involved in acts of molestation of

women belonging to a family. He was released by the Court from preventive detention on the ground that what he did was not the same as

molesting womenfolk in general in a locality Arun Ghosh Vs. State of West Bengal, . We must therefore hold that threat of violence addressed to

any single individual or, perhaps, even to members of a single family is really a matter for the judicial magistracy to be dealt with under the criminal

law and procedures, and not for the executive magistrates to deal with under the preventive detention law.

On the terms of the detention order and the actual ground of detention relevant to this part of the case, the threat to the person of the Chief

Minister has not been considered by the District Magistrate as per se actionable. He refers to the incitement, not in isolation, but in association with

the incident of stone-throwing which was reported to have followed the detenu''s uncomplimentary references to the Chief Minister. The police

stenographer''s report does show that there was stone-throwing, but he also records that order was restored and the detenu resumed his speech

from where he left off, proceeded to his peroration and then took his leave. And, as we earlier indicated the shorthand writer''s report shows that

the audience of 5,000 people remained hearing the speaker with attention. If there had been panic and terror at that meeting, it would not have

missed the official reporter''s attention and special mention. The Deputy Superintendent of Police who was one of the official listeners to the speech

also does not make mention of any state of panic or terror at the meeting. He swore to his affidavit five days after the meeting, and if public order

had deteriorated in Erode, or its environs in the meantime he would have made a note of it in the affidavit. He has not, apparently because nothing

of the kind happened. All he has to say of the commotion and stone-throwing is that these too created inter-communal disharmony. He does not

explain how a threat to the Chief Minister can trigger off communal passions. But that is not the point. The point is that nowhere in his affidavit does

he say that panic, and terror reigned Erode the moment the detenu made scurrilous personal attacks on the Chief Minister. We are satisfied that for

the crucial finding of the detaining authority on the second ground there is not a shred of evidence even in the documents on which reliance has

been placed. We must therefore hold that even this ground fails as a ground of preventive detention in this case.

Mr. Natarajan said that the whole edifice in the ground had been built on one speech or on the re-editing of portions thereof. Learned counsel

added that for locking up an individual under preventive detention on the basis of foreseeable tendencies and potentialities, for the interpretation of

which a key may be found in present facts, the detaining authority must have on hand not a solitary prejudicial act, but evidence of a tendency

which could only be reasonably found by looking over a number of related acts. In the present case, a single speech has done service for two

grounds, both of which have failed to click. He accordingly urged that there is no material basis at all for the personal satisfaction of the District

Magistrate that if the detenu were left at large, he would be going on making the same speeches as before and seeing to it that they lead to

breaches of public order.

By and large, this contention of Mr. Natarajan bears acceptance. Public Order is not capable of precise definition. But nobody could even

imagine that a single speech can mangle public order. In order to achieve that, the speaker must be capable of extraordinary powers of persuasive

eloquence. For, public order is described as the kind of tranquillity which depends for its sustenance on an even tempo. This is not to be regarded

as capable of going hay-wire by a single declamatory speech here or a single act of violence there. Besides, speech, as such, is rarely to be

equated to acts. Thought, word, and deed are each different, excepting in rare cases where speech itself is the act as when the Priest asks the

question ''Do you take this woman to be your lawfully wedded wife'' ? And the bridegroom answers ''I do''. Here the words themselves constitute

the act, for with the words the marriage rite becomes complete. Such ''speech-acts'' are very rare. Hence it is that in this case the grounds of

detention have had to strain the facts in order to make out that there were incitements to violence and there were fracas following the speech.

When there is no material to support these allegations we are left with the speech alone and a single speech at that. The speech alone has not been

regarded even by the detaining authority as an act actionable in itself. It follows that there is no material and no valid grounds upon which the

detention order can operate. We must accordingly set aside the order of detention as null and void and direct the detenu to be set at liberty

forthwith.

We order accordingly.

Throughout the discussion we have avoided passing any moral judgment one way or the other on the detenu and his kind of articulate speech. Each

of us would like to keep his thoughts on these matters very much to himself. For the rest, we make the rule in the writ petition absolute on the terms

set out above. No order as to costs.

Rule made absolute.