Prahalad Jena and Others vs State of Orissa

Narasimham, J.—These applications are u/s 491, Criminal P, C., against the orders of detention passed by the Provincial Government in

exercise of their powers u/s 2 (1) (a) read with Section 4, Orissa Maintenance of Public Order Act, 1948 (hereinafter referred to as the Orissa

Act) as amended by the amending Act (Orissa Act VI [6] of 1949). The applications were filed before the commencement of the Constitution and

the legality of the detentions was therefore challenged on various other grounds which have now become academic in view of the coming into force

of the Constitution on 25th January 1950. The legality of the detention of the applicants was challenged by Mr. M. Mahanty and Mr. Mahapatra

on behalf of the applicants on the ground that the provisions of the Oriasa Act dealing with preventive detention were void under Article 13(1) on

account of their inconsistency with Article 22(4) 22 (5), (6) and (7) of the Constitution. The learned advocates farther relied on the reasonings

adopted by Meredith C. J. and Sarjoo Prasad J. of the Patna High Court in a recent case, Brahmeshwar Prasad Vs. The State of Bihar and

Others, involving the construction of similar provisions of the Bihar Maintenance of Public Order Act (Act III [3] of 1950).

On 26th January 1950 an Order known as ""the Preventive Detention (Extension of Dura. tion) Order, 1960"" (herein after referred to as the

order) was published in the Gazette of India under the signature of C. Bajagopalohari, Governor-General. Subsequently, however, an erratum was

issued substituting the words ""Dr. Eajendra Prasad, President"" for 0. Rajagopal chari, Governor-General."" An affidavit was also filed before ua by

the Under. Secretary to the Government of Orissa communicating a copy of the telegram received from the Ministry of Home Affairs, Government

of India to the effect that the order was in fact signed by the President Dr. Eajendra Prasad on 26th January, and that an authenticated copy of the

same was sent for publication in the gazette. But that due to a clerical mistake the said order was published as an order of the Governor-General.

In view of this affidavit, we are satisfied that the order was in fact made by the President on 26th January 1960. That order was made by him in

exercise of his powers under Article 373 of the Constitution. It was argued that inasmuch as Dr. Rajendra Prasad assumed office as President of

the Union of India only at about 10-50 A. M. on 26th the said order came into force sometime after Dr. Rajendra Prasad assumed office and that

it cannot validate any law which might have become invalid prior to that hour. This argument appears to have carried much weight with the Division

Bench of the Patna High Court in the recent case mentioned above. But in my opinion this argument is incorrect. An order made by the President

under Article 373 of the Constitution is, in substance, a law of the Parliament during the transitional period as contemplated by Clause 7 of Article

22 of the Constitution. This is made absolutely clear by the language used in Article 373 wherein it is expressly stated that during the transitional

period for reference to any law made by Parliament in Clause (4) and (7) of Article 22 there shall be substituted a reference to an order made by

the President. Various other Articles of the Constitution confer on the President powers to make orders in respect of various matters such as

Articles 372, 391 and 392, etc. But an order under Article 373 stands on a different footing in as much as it is expressly stated to be a substitution

for the law of Parliament,'' Consequently the general rules for the construction of any law of Parliament would apply while construing an order of

the President made under other Articles of the Constitution. The General Clauses Act, 1897 was adapted by the President in exercise of his

powers under Article 372(1) and published in the Gazette of India on 26th January 1960. After that adaptation, the expression ''Central Act'' has

been defined in Section 3(7), General Clauses Act, as meaning an Act of Parliament. I do not think there is any material difference between an Act

of Parliament and the ''law made by the Parliament because the only method provided in the Constitution foe Parliament to make laws is by

introducing and passing Bills as provided in Articles 107 to 111. Therefore, an order of the President under Article 373 for the purpose of

construction with reference to the General Clauses Act should be deemed to be an ''Act'' of Parliament and as such a ''Central Act.'' Section 5(3),

General Clauses Act, makes it clear that:

Unless the contrary is expressed, a Central Act or Regulation shall be construed aa coming into operation immediately on the expiration of the day

preceding its commencement.

The expression ''Commencement'' has also been defined in Section 3(12) of that Act as follows :

Commencement"" used with reference to an Act or regulation shall mean the day on which the Act or Regulation comes into force.

Therefore, if a Central Act came into force, say at 11 A. M. on. 26th January then by virtue of Section 5(3) read with Section 3(12), General

Clauses Act, that Act should be deemed to have coma into force from the midnight of the 25th-26th January. The order of the President under

Article 373 should, therefore, be deemed to have come into force from the midnight of 25th-26th January, even though it might have been actually

signed by the President only after 10-50 A, M. on 26th. The Constitution also came into force from the midnight of 26th-26th January because the

provisions of the General Clauses Act, Section 5(3) were made applicable to the interpretation of the Constitution by Article 867 (1) . The result,

there. fore, is that) both the Constitution and the order came into force for legal purposes from the midnight of 25th 26th January and in considering

the validity or otherwise of the relevant provisions of the Orissa Act, the short interval of time between the mid-night of 25th-26th January and the

exact time of the signing of the order by the President becomes immaterial.

The main difficulty still remains, namely whether the provisions of the Orissa Act are inconsistent with Article 22 of the Constitution. The law

providing for preventive detention in Orissa is contained in Section 2, 3 and 4, Orissa Act. Section 2 (1) (A) of that Act authorises the Provincial

Government, if satisfied with respect to a particular person that with a view to preventing him from acting in any manner prejudicial to the public

safety and the maintenance of public order it is necessary so to do, to make an order directing that he be detained. Sections 3 and 4 are as follows:

(1) Grounds of detention to be disclosed on application of the person affected by the order. As soon as may be alter a person is detained in

pursuance of an order made under Clause (a) of Sub-section (1) of Section 2, the authority making the order may, on application of the person

affected by the order, communicate to him, so far as such communication can be made without disclosing facta, which the said authority considers

to be against the public interest to disclose the grounds on which the order has been made and such other particulars as are in its opinion sufficient

to enable him to make a representation to the Provincial Government against the order; and such person may, within such time as may be specified

by the Provincial Government make a representation in writing to them against the order and It shall be the duty of the Provincial Government to

inform him of his right to make such representation and to afford him opportunity of doing so; provided neither the said order of detention not the

detention of the said person thereunder shall be deemed to be invalid or unlawful or improper on the ground of any defect, vagueness or

insufficiency of the communication made to such person under this section.

(2) After the receipt of the representation referred to in Sub-section (1), or in cane no representation is received, after the expiry of the time fixed

therefore, the Provincial Government shall place before the Advisory Counsil constituted under Sub-section (3), the grounds on which the order

has been made by an authority or officer subordinate to them, the report made by him under Sub-section (3) of Section 2 and the representation, if

any made by the person concerned.

(3) The Provincial Government shall constitute an Advisory Council whenever necessary and it shall consist of not less than three members one of

whom shall be its Chairman. The Chairman and the members of the Council shall be appointed by the Provincial Government.

(4) The Advisory Council shall, after considering the materials placed before It and, if necessary, after calling for such further information from the

Provincial Government or from the person concerned as it may deem necessary, submit Its report to the Provincial Government.

(5) After considering the report of the Advisory Council the Provincial Government may confirm, modify or cancel the order made under Sub-

section (1) of Section 2.

(1) Duration of orders made u/s 2 An order made under Sub-section of Section 2 shall be in force for a period not exceeding six months from

the date on which it is made unless earlier revoked by the authority making the order,

(2) If in the opinion of the Provincial Government it is necessary or expedient so to do, it may at any time before the expiry of the period of six

months aforesaid and after giving an opportunity to the person concerned to make any representation is writing which he may desire to make and

after referring the matter to the Advisory Council constituted under Sub-section (3) of Section 3 and considering it a report direct that the order

shall continue is force and the order as so extended shall continue for a further period of six months from the date on which but for such direction it

would have ceased to be In force and thereafter if and so often as it is again extended by a further similar direction made in the same manner.

(3) The revocation of any order made under Sub-section (1) of Section 2 shall not prevent the making under the Sub-section of a fresh order to

the same act as the order revoked.

Clauses (4), (6) and (7) of Article 22 of the Constitution are provisions relating to fundamental rights in respect of preventive detention of a person.

Article 13(1) says:

All laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the

provisions of this part, shall to the extent of such inconsistency be void.

One, has therefore, to carefully sorutinMse the provisions of Sections 2, 3 and 4, Orissa Act with special reference to the fundamental rights

guaranteed in Article 23 with a view to ascertain which portions of the Orisaa Act are inconsistent with any of the provisions of the Article. Section

3, however has been attacked on the ground that it is wholly inconsistent with Clause (4) and (6) of Article 22. The Advisory Council as

contemplated by Section 3 is not the same as the Advisory Board required under Clause (4) of Article Section 3 inasmuch as the Orissa Act does

not prescribe the necessary qualifications for members of the Advisory Council. Moreover, the Orissa Act does not say that consultation with the

Council should be made and its opinion should be obtained prior to the expiry of three months from the date of detention of a person. Nor does it

make it mandatory for the Government to accept the opinion of the Advisory Council. Again, so far as the communication of grounds of detention

is concerned, the Orissa Act does not make it mandatory on the Government to supply such grounds but it leaves it to the discretion of the

Government if an application is made by the detenu. Moreover, the Provincial Government is made the sole judge as to what particulars in the

grounds are sufficient to enable a detenu to make a representation against the order of detention. I therefore think that all the sub-sections of

Section 3, Orissa Act are inconsistent with Clause 4 and (5) of Article 22 and as such are invalid.

It has been suggested that the fundamental rights under Article 22 ate conferred on a person whatever may be the law on the subject and that so

long as those rights are not in any way abridged in respect of a person, the law under which he is detained cannot be challenged as invalid even

though there may be some inconsistency between the provisions of the law on the one hand and Article 32 on the other. In support of this

argument, the language of Clauses (1), (2), (3), (5) and (6) which all refer to rights conferred on a person was emphasised. Clause (4) seems to

refer to the law and not to a person in as much as it opens with the following words:

No law providing for preventive detention shall authorise the detention of a person for a longer period than three months .... .

This language is quite different from

No person shall be detained for a longer period than three months under any law providing for preventive detention.

What the constitution obviously hits is the law providing for preventive detention which does not fulfil certain conditions required by Clause (4) of

Article 22 notwithstanding the fact that an order under that law detaining a person fixes the period of his detention to be only three months. The

argument that Article 22 affects the rights of a person and not the law under which Book detention is made will render Article 13(1) practically

nugatory inasmuch as all the other fundamental rights. Guaranteed in Part III of the Constitution deal with the rights conferred on a person (see

Articles 14 15 16 19 20 23 and at etc.) It cannot be seriously contended that if there is any state law which is inconsistent with any of the

provisions of the articles that law will not be invalid so long as there is no abridge ment of the rights of an individual while admmetering those laws.

The object of Article 13(1) seems to be to invalidate those existing laws which continue in force by virtue of Article 372(1) which are inconsistent

with any of the provisions of part III dealing with the fundamental rights even though those provisions may expressly refer to the rights of persons

and not to the laws of the state.

I may now take up the scrutiny of all the three Sub-sections of Section 4, Orissa Act Sub-section (2) is clearly invalid because it authorises the

continuation of detention beyond the first period of six months on the recommendation of an Advisory Council as constituted u/s B(3) which

Council has been shown to be a different body from that contemplated by Article is (4). Sub-section (3) of Section 4, Orissa Act being a purely

consequent provision need not be considered in this discussion. Sub-section (1) of Section 4 says clearly that an order of detention u/s 2(1) shall

be in force for a period of six months from the date on which it is made unless earlier revoked by the authority making the order. An order of

detention u/s 2 (1) (a) need not specify the period for which it is to be in force but by virtue of Section 4 (1) it will automatically be in force for a

period of six months until earlier revoked by the competent authority. Therefore the combined effect of Section 2 (1) (a) and 4 (1) , Orissa Act is

that the law providing for preventive detention authorises the detention of person for a period of six months. But under Article 22(4) no. such law

can authorise the detention of a person for a period longer than three mouths unless (1) an Advisory Board consisting of person qualified for

appointment as Judges of a High Court has reported in favour of such detention; or (a) such person is detained in accordance with the provisions

of an order made by the President under Sub-clause. (a) and (b) of Clause (7). The order may now be quoted in fall.

In exercise of the powers conferred by Sub-clauses (a) and (b) of Clause (7) of Article 22 of the Constitution of India read with Article 373

thereof and of all other powers enabling him in that behalf, the President is pleased to make the following older namely:

(1) This order may be called the Preventive Detention (Extension of Duration) Order, 1350.

(2) It shall come into force at once.

Where in any class of oases or under any circumstances specified in any law providing for preventive detention in force at the commencement of

the Constitution of India (hereinafter referred to as ''the Constitution'') any person was, Immediately before such commencement, or is at any time

thereafter, in detention in pursuance of an order made under such law, such person may be detained for a period longer than three months under

such law without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4) of Article 22 of the

Constitution.

The maximum period for which any each person, as it referred to in para. 2, may be detained, shall, in the case of a person in detention

immediately before the commencement of the Constitution be three months from such commencement, and in the case of a person detained in

pursuance of an order made after such commencement, be three months from the date of such order,

Paragraph 2 of the Order needs no comment. It only dispenses with consultation with the Advisory Board under Article 22(4)(a). Paragraph 3 of

the Order however says that the maximum period for which any person who was under detention under any law providing for preventive detention

in force at the commencement of the Constitution shall be only three months from such commencement. That is to say, it fixes the maximum period

of detention of any person under any law providing for preventive detention to be only three months from 26th January in respect of those persons

who were under detention immediatety before. But the Orissa Act permits of detention for six months for all classes of persons detained under that

Act and, consequently, Sub-section (1) of Section 4 also must be held to be invalid as being repugnant to the said Order of the President. The

result therefore is that of the three sections of the Orissa Act dealing with the law in respect of preventive detention, Sections 3 and 4 are rendered

null and void as being inconsistent with the constitution and Section 2 alone remains. But Section 2 by itself is unworkable because unless there is

any provision fixing the duration of detention of a person, no law which merely authorises the detention of a person under some circumstances can

be said to be workable.

It was however argued that so far as duration was concerned, the President''s order supplied the gap and that para. 3 of that Order would

indicate that all persons who might have been under detention immediately before 36th January could be validly detained for three months from that

date. This argument however overlooks the significance of the word ''maximum'' occurring in para. 3 of the Order and in sub. Clause (b) of Clause

(7) of Article 22. The Constitution authorises the Parliament (or the President during the transitional period) to prescribe by law the maximum

period for which, any person can be detained under any law providing for prevetive detention. In other words, the constitution while conferring on

the Parliament the power to fix the maximum period for such detention leaves it to the law providing for preventive detention to fix any period

within that maximum. Such law may be either an existing law continued in force by Article 373(1) or a new law made either by Parliament or by a

State under Clause (2) of Article 246 read with item 3 of List 3 to Schedule 7 of the Constitution. The law of Parliament under Article 92(7) will

lay down only the circumscribing limits but within those limits it is for the law providing for preventive detention to make adequate provision

specifying the period during which order of detention should remain in force. Article 22(7) does not, in terms, confer either on the Parliament (or

on the President) the power to fix the actual period of preventive detention in individual cases.

This point will be clear if the precise-scope of the power of the Parliament under Article 22(7) is carefully examined. Preventive detention is a

subject included in item 3 of the concurrent list and consequently the State as well as the Parliament have concurrent powers to make any law

providing for preventive detention by virtue of Clause (a) of Article 246. But this power is, however, subject to the other provisions of the

Constitution; that is to say, it is subject to the provisions of Article 22 and any law made under that Article by Parliament itself. Thus the

Parliament''s power of Legislation in respect of preventive detention appears to be of two kinds. Firstly, its power to make a self-contained law

providing for preventive detention on the lines of the Orissa Act is derived from Article 216(2) read with item 3 of List 3, Secondly, it has also got

the over-riding power-under Clause (7) of Article 22 to prescribe the circumstances under which and the class of cases in which a person may be

detained for a period longer than three months without consulting the Advisory Board under Sub-clause (a) of Clause (4) of that Article and also to

prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive

detention. These two powers of the Parliament are not identical. The latter is a general regulating power which does not include the power to

actually fix the period of detention in individual oases. This power can be conferred only by the law providing for preventive detention made by the

appropriate authority under Article 216(2), It is the general regulating power of the Parliament under Article 22(7) that can be exercised by the

President during the transitional period by virtue of Article 373. But he has not got the power to make a law providing for preventive detention

conferred on the Parliament under Article 946(2). That power during the transitional period can be exercised only by the Constituent Assembly

under Article 379 (I). If this distinction between the two kinds of legislative powers of the Parliament be clearly borne in mind there can be no

difficulty in appreciating the precise scope and limitations of an order made by the President under Article 33(7).

The same conclusion will emerge if the language of Article 22(7) is carefully examined. In Sub-clauses (a) and (b) of Clause (7) of that Article

the words ""any law providing for preventive detention"" occur. Though Article 373 says that for any reference to any law made by Parliament in

Clause (7) of Article 22 an order of the President may be substituted. Article 373 does not go so far as to gay that wherever the expression ""law

occurs in Clause (7) of Article 22 an order of the President may be substituted. The result is that the expression ""law providing for preventive

detention"" in Clause (7) of Article 22 remains unaffected by Article 373. Therefore, on a matter of mere construction also, an order of the

President under Article 373 cannot take the place of any law providing for preventive detention as contemplated in Clause (7) of Article 22. For

that law one must look into the provisions of an existing law on the subject continued in force under Article 372(1) subject to the removal of those

portions of that law which have become null and void by the application of Article 13(1) or else to any new law that may be made either by the

State or by Parliament which law is also subject to the regulation made by Parliament under Article 22(7). This seema to be the true significance of

the expression ''maximum'' occurring in Sub-clause. (b) of Clause 7 of Article 22 and in para. 3 of the Order the President also only prescribes the

maximum period of such detention without in any way fixing the actual period of detention in respect of every detenu. Therefore, in ascertaining

what is the exact period of detention of a person para. 3 of the Order will be of no avail and one must look into the provisions of the law providing

for preventive detention (Orissa Act in the present case) after excising from it those provisions which are null and void under Article 13(1) . I have

already shown that if this examination is made only Section 2of the Orissa Act will survive and that it does not make any provision fixing the

duration of an order of detention and as such is clearly unworkable.

It was then argued that if Section 2 of the Orissa Act is retained and to that is added Clause (6) and (6) of Article 22 and also the Order of the

President it may be possible to make out a self-contained law dealing with preventive detention. This argument was fully met by Meredith C. J. in

the Patna case. He rightly, if I may say so with respect, pointed out that such a procedure would be practically making out a new piece of

legislation which it is obviously not the function of the court. The Orissa Legislature which passed the Oriasa Act in 1948 did not contemplate

legislation of that type. Moreover, such a procedure would, in substance, amount to adaptation of the Orissa Act for the purpose of bringing it into

accord with the provisions of the Constitution as provided for in Clause (2) of Article 372. That power is conferred only on the President and no

Court can arrogate to itself that power.

The result, therefore, seems to be as follows; The Order of the President while prescribing the limits within which every law providing for

preventive detention must lie, does not purport to be itself a self-contained law fixing the duration of preventive detention of a person. The

President has, in fact, no authority to make such a law nor has he purported to do so. His order assumes the existence of a valid law providing for

preventive detention in which the duration of any such order of detention would be within the maximum period fixed by the President in his order. If

that duration is within the maximum period fixed in the order, no question of inconsistency will arise, if, however, the duration is in excess of the

maximum so fixed that duration clause in the law providing for preventive detention would become invalid and it is left to the appropriate

Legislature to amend the law so as to bring the duration clause in conformity with the President''s order. In the present case, therefore, Section 4

(1) of the Orissa Act which fixes six months as the duration of any order u/s 2 (1) is invalid and the Legislature has not passed any amendment

reducing the period of duration to three months or less so as to avoid any inconsistency between that provision of the Orissa Act and, the

President''s order. The net result is that the only valid portion of the Oriasa Act relating to preventive detention is Section 2 and in considering

whether that section by itself can be said to be valid law on the subject one has to apply the well-established doctrine of severability which was the

subject of several decisions in the Privy Council the latest of which is A.G. of Alberta v. A. G. of Canada A. I R. 1948 P. C. 194 : 52 C. W. N.

I have already shown that the Orissa Legislature would never have passed a bald law containing only Section 2 of the Orissa Act. In fact

Sections 3 and 4 and Section 2 of that Act form part of one scheme and without the safeguard provided in Section 3 and the limit on duration of an

order (detention u/s 4 the Orissa Legislature would never have passed such a law providing for prevention detention.

10a. Moreover, as already pointed out, Section 2 of the Orissa Act by itself is quite unworkable. Therefore, though a, 2 of the Orissa Act may not

be inconsistent with any of the provisions of the Constitution the entire law providing for preventive detention in the Orissa Act contained in

Sections 2, 3 and 4 must be held to be invalid on the application of the doctrine of severability.

The result is that there is no valid law under which the detention of the applicants can be justified. They should, therefore, be set at liberty

forthwith.

Before we delivered the judgment our attention was invited to a recent Act of the Parliament making a self-contained law providing for

preventive detention. But as the applicants have not been detained under that new law it is unnecessary to enter into a discussion regarding the

provisions of that law. Our attention has not been invited to any provision in the new law continuing in force or validating orders of detention made

prior to the coming into force of that law and, consequently, it cannot be of any help in the disposal of the present applications which are all under

the old law.

Ray, C.J.

I have read the judgment written by my learned brother Narasimham J. I agree with the conclusion reached therein. I add the following that

presents a slightly different approach to the problem.

All the aforesaid applications have been heard together side by side and shall be governed by this order. The circumstances under which the

petitioners were detained are not in dispute. The petitions had been filed u/s 491, Criminal P. C., which is still good law. They have also been

treated to have been filed as it were under Article 226 of the Union Constitution, which has come into operation since the midnight of 26th January.

The constitutionality of the law, under which the petitioners have been detained or should continue to be detained, has been seriously challenged by

the petitioners. The long and short of their contention is that the said laws do not conform to the basic requirements of preventive detention of a

citizen under the Constitution. The different aspects of the contentions of the petitioners are noticed in the judgment as it proceeds.

The nature and scope of the Constitution.--The Constitution is the fundamental of basic law to which all other laws must conform. It is superior

to the will of the Legislature, the validity of whose Acts are to be determined by its provisions and it is the sole charter by which the rights of the

Union as well as State-Governments are to be determined. It antedates all other laws and all of them must, whether by adaptation or modification,

be brought into line with and be placed on a footing as if the laws made under the Constitution :

Article 13(1) reads :-- ""All laws in force in the territory of India Immediately before the commencement of this Constitution, in so far as they are

inconsistent with the provisions of the fart, shall, to the extent of such inconsistenoy be void.

Clause (2) of the article is not material for the purpose of this case as it defines constitutional limitations on the legislative powers of the appropriate

Legislatures in future. Article 372 provides that all the laws in force in the territory of India immediately before the commencement of this

Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority, but

subject to the other provisions of this constitution. The President has been em. powered by Clause (2) of the article to adapt and modify such laws

either by way of repeal or amendment as may be necessary or expedient by an order made in that behalf for the purpose of bringing the provisions

of any such law into accord with the provisions of the Constitution. Such adaptation or modification is immune from being questioned in any Court

of law. Beading the articles conjointly, it becomes plain that the pre-existing laws of either Provincial or Central Legislatures become shorn of such

provisions of Part in of the Constitution. During the transitional period, however which, according to Clause (3) of the article, is to expire after two

years from the commencement of the Constitution, the President is empowered to modify and adapt them in order to secure the workable

minimum for the Constitution to be get up. In the absence of such adaptation and modification as is within the purview of the article, the pre-

existing laws must remain in force, if at all subject to the provisions of the Constitution, that is to say, they should stand denuded of such provisions

as are inconsistent with the provisions of Part III of the Constitution and as such are void. If what remains is sensible and complete in itself well and

good, or else the entire Act or Regulation, as the case may be, must disappear from the arena of law. In order to render any such law invalid, it is

not necessary that it should contravene some provisions of the Constitution. Inhibition by general scope and purpose of the instrument is enough to

invalidate. Even implied limitations and restraints found in a Constitution cannot be overlooked in this connexion.

The detentions of the petitioners are Bought to be sustained under the President''s order entitled ""The Preventive Detention (Extension of

Duration) Order, 1960"" made on 26th January 1960 read with Orissa Maintenance of Public Order Aot, 1948, as amended by the Amending Act

(orissa Act VI [6] of 1949). The Orissa Aot is impugned as wholly void being repugnant to, and inconsistent with the provisions of Article 22,

Clauses (4), (6), (6) and (7) read with Article 13(1) of the Constitution. The general spirit and purpose of all the said provisions is : (i) No

authorisation of detention of person for a period longer than three months under any law of preventive detention shall be valid, (ii) except when an

Advisory Board, consisting of persons who have been or are qualified to be appointed to be Judges of a High Court, has reported, before the

expiration of the said period of three months, that there is in its opinion sufficient cause for such detention; (iii) provided that no such detention

should exceed the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7), or in the alternative by any

order made by the President under Sub-clause (b) of Clause (7); (iv) any person, however, can be detained for more than three months in

accordance with the provisions of any law made by Parliament under Sub-clause (a) of Clause (7), but not beyond the maximum period

prescribed by the Parliament by any law; (v) it is obligatory on the authority making the order under any law of preventive detention to

communicate as soon as may be to be detenu the grounds on which the order has been made; (vi) afford him the earliest opportunity of making

representation against the order; (vii) but there is no obligation on such authority to disclose facts which it considers to be against the. public

interest to disclose.

Tested in the light of the spirit and purpose of the provisions of the Constitution rela. ting to preventive detention as summarised above, the

Orissa Act is wholly inconsistent therewith. The Act authorises a detention of a person for a longer period than three months without the report or

recommendation of an Advisory Board; according to it, there is no obligation on the authority making the order of detention to supply grounds for

such order to the detenu so as to enable him to make a representation to the authority concerned; the opinionof the Advisory Council provided for

in the said Aot is not binding on the concerned authority; the Act empowers the State-Government to extend the period of detention under

circumstances stated therein beyond six mouths, and, lastly, the validity of the detention on account, of vagueness and inadequacy of the grounds

supplied is beyond question. In short, the Executive Government is the sole arbiter in the matter. In order to give effect to Art, 13 of the

Constitution, the State (Orissa) Aot must be denuded of all such provisions as are inconsistent with Clause (i) and (5) of Article 22 of the

Constitution. The only consistency between the Constitution and the Impugned Act consists in the latter being avowedly a law providing for

preventive detention, a subject within the competence of State Legislature enumerated as Item 3 of the Concurrent List of the Constitution. In view

of the inconsistency, the authorisation under the Orissa Act for detention for a longer period than three mouths became invalid, as soon as the

Constitution came into operation.

The question that then arises is whether the detention can be justified as one in pursuance of the Preventive Detention (Exteation Duration)

Order, 1960. I shall assume, that the Order came into operation along with the constitution. The constitutionality of such Order depends upon its

conformity to the provisions of the Constitution relating thereto. The President derives his power to make the order under Clause (7) of Article 22

read with Article 373 of the Constitution, Adapted by Article 373, Clause (4) and (7) of Article 22 would read (after deleting the words and

phraser not material for the purpose) :

No law providing for preventive detention shall authorise detention of a person for a, longer period than three months unless such person is

detained in accordance with the Order made by President under Sub-clauses (a) and (b) of Clause (7);

President may by order prescribe, (a) the circumstances under which the class or classea of cases in which a person may be detained for a

period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in

accordance with the provisions of Sub-clause (a) of Clause (4) and

(b) the maximum period for which any person may in class or classes of case be detained under any law providing for preventive detention.

The legal position is that the basic requirements for detention for a longer period than three months, namely, report of an Advisory Board

constituted under Sub-clause (a) of Clause (4) of Article 92 can be dispensed with in classes of cases and circumstances prescribed by Parliament

and before prescription by Parliament by the President under Clause (7) of Article 28. We are here concerned with an Order by the President.

The President baving no power under the Constitution to make any law, be has to prescribe the circumstances under which and the classes of

oases in which a person may be detained for a period longer than three months under any law providing for preventive detention. The President''s

Order in question does not purport to make any law of preventive detention. It has to be noted that he has no such power under the Constitution.

His power is that of adaptation and modification in the manner and for the purpose provided in Article 372. While making an order under Clause

(7) of Article 23, he could exercise such power. That the very purpose of such power is to bring the provisions of any law in force in the territory

of India into accord with the provisions of the Constitution indicates the constitutional limitations of such power. His power under Clause (7) of

Article 23 cannot be exercised free of the constitutional restraints and limitations. Even if it be assumed that the President can make any law in

order to fulfil the requirements of Article 22(7), that law too must confirm to the constitutional limitations prescribed in the provisions of the

Constitution of which Clause (5) of Article 22. is one. What the President does under the Preventive Detention (Extention of Duration) Order

amounts to authorising or validating the detention of the persons in detention immediately before the commencement of the Constitution under

selfsame law under which the primary order of detention had been made by the State authority. Put broadly, the President says that the Orisaa

Maintenance of Public Order Act shall remain in full force despite the constitutional inconsistencies and repugnancies the rein for the maximum

period of three months. This in my opinion, amounts to overriding the mandatory provisions of Article 13(1) and Articles 32(6) of the Constitution.

The President''s order may be free from any constitutional lacuna so far as be prescribes the circumstances and the classes of cases for the

purpose of Clause (7) of Article 22 to be the same as in the Orissa Act and so, far as be dispenses with the mandatory necessity of obtaining the

opinion of an Advisory Board in accordance with the provisons of Sub-clause (a) of Clause (4) of Article 22 of the Constitution, and to that extent

modifies the Orissa Act, but by prescrib. ing that such persons may be detained for a period longer than three months under such law, he charters

the validity of all other provisions of the Orissa Act which are radically contraventions of supreme law of the land, namely, the Constitution.

It has been strenuously contended by the learned advocate-general that a very fair and liberal interpretation shall be given to the president''s

order, intended as it is, to fill up the void that is created, on the introduction of the Constitution, between, the pre-constitution laws of preventive

detention and the law or order passed or made under it. The order is a special device to remove the difficulties of transition from the old

constitution to the new. I am fully aware; tbat astute interpretation or strict adherence to technical rules are foreign to interpretation of a

Constitution, but the same doctrine cannot be invoked in favour of law purporting to have been made in obedience to the Constitution. To give

effect to this contention would amount to abrogate the procedure established by law. Article 21 of the Constitution may be prayed in aid. The

article reads :

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Preventive detention of a person amounts to deprivation of his personal liberty. This must be effected according to procedure established by law.

Preventive detention, no doubt stands on a different footing from imprisonment inflicted as a punishment for commission of an offence, inasmuch as

an open trial is unsuitable to the one while it is inevitable in the case of the other. The Constitution, however, enacts a substitute for an open trial.

The substitute is provided by the combined operation of Sub-clause (a) of Clause (4) and Clause (5) of Article 22. By way of an exception in

special class of cases and under particular circumstances specified in that behalf by the parliamentary law or presidential order, examination of

detenus'' case by an Advisory Board is dispensed witb, but the minimum substitute giving a detenu the only opportunity of defending himself against

the order of detention as contained in Clause (5) of the article is a permanent feature constitutionally ordained as an integral part of any law of

preventive detention enacted either by a State or by the Union through appropriate legislative authorities, Any law that dispenses with this minimum

would be derogatory to or even complete abdication of the procedure established by law so inevitably linked with deprivation of personal liberty.

If the President, by bis order intended to ensure this procedure to the detenu, be should have adopted the Orissa Act accordingly. While

dispensing with the necessity of the opinion of the Advisory Board and reducing the maximum period to three months since the commencement of

the Constitution or the date of the order, he expressly upholds the rest of the State law flying face in the place of the constitution. This deprives the

detenu of his fundamental right of being supplied with the grounds on which the detention order has been made and of the opportunity of making a

representation against the order. Mr. Advocate-General would ask us to take the President''s order and the Orissa Act as constituting a Code

complete in itself after excising such provisions therefrom as are either expressly or impliedly inconsistent with the Constitution, and act upon it,

Then the question arises whether such a course is permissible. There is no doubt in my mind that it would amount to ourselves indulging in a piece

of speculative legislation with the effect of depriving a citizen of his personal liberty without making available to him the procedure established by

law. Local hardships and inconveniences do not count in interpreting a Constitution which is based upon the national will jas against that of a

Legislature, Part III is the Bill of Eights of the citizens of the Indian Union and it contains constitution al restraints and limitations upon the legislative

functions of the appropriate legislative authorities as the case may be. It appears quite plainly from the text of the President''s order that he did

never mean that any part of the State laws in force immediately before the commencement of the Constitution should suffer chiselling of such

provisions thereof as were then considered by the State legislature to be fundamental in exercise of State authorities power of detention.

The course advocated by the learned Advocate-General would lead to acceptance of one part and rejection of the other of the law enacted by

the President''s order. It is no doubt elementary that the same statute of law may be in part constitutional and in part unconstitutional, and, if the

parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected. As to the

oase, in hand, I think the rule laid down by Shaw C. J., in Warren v. Charlestown, 2 pray 84 is applicable,;

That is the different parts are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each

other as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not pass

the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with

them,

The point is put thus by Mathews J. in Poindexter v. Greenhow, 114 u/s 270 at p. 304;

It is undoubtedly true that there may be cages where one part of a statute may be enforced as constitutional but these are cases where the parts

are so is distinctly separable that each can stand alone, and where the Court is able to see, and to declare, that the intention of the legislature was

that the part pronounced valid should be enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law

intended by the legislature one the; may never have been willing by itself to enact"".

And again, as stated by the said eminent Judge in Spraigue v. Thompson 118 U. S. 90 at p. 95, where it was argued that certain illegal exceptions

in a section of a statute might be dig. regarded, but that the rest could stand ;

The insuperable difficulty with the application of that principle of construction to the Instance is that by rejecting the exception intended by the

legislature of Georgia the statute is made to enaot what confessedly the legislature never meant. It confers upon the statute a positive operation

beyond the legislative intent, and beyond what may any one can say it would have enacted, in view of the illegality of the exceptions.

Coming to the present oase, it can never be predicated as to the intent behind the President''s order that it should be partly enforced and partly

rejected. No presumption of limitations or exceptions will be made merely for the purpose of sustaining the constitutionality of the order. The

presumption of constitutionality of a statute does not apply where it shows, on its face, a violation of constitutional provisions. It may appeal

paradoxical that the Court should ever attempt to declare void the order of the President which, as the present one, is at par with an Act of

Parliament. In fact, no English Court has ever attempted to do so, the accepted theory of the English constitution being thai Parliament possesses

supreme and unlimited legislative power. But a different consideration, arises where there is written Constitution. The snpreme authority resides in

the people, who, for practical purposes, are those exercising the suffrage. This feature distinguishes a republican form of Government. No

legislative authority that is subject to a written Constitution which it is bound to obey possesses sovereign powers to the fullest extent. No

legislative authority can make laws that are not according to, and consistent with, the fundamental laws that have been prescribed for its

Government by the people, who are superior to both the law-making and the Constitution themselves. All written Constitutions therefore are

limitations on legislative powers or the sovereignty which in all organised Governments must reside somewhere. The authorities either Federal or

State however sovereign in its own sphere, both are subject to such constitutional limitations and restrictions as the people, acting in their national

capacity, have seen fit to prescribe. In this view of the matter, authorisation of detention oE the petitioners in pursuance of the President''s order is

unconstitutional, and, therefore, void.

I feel inclined to say a word as to the Court''s duty to construe the law in force before the 26th of January that all such adaptations as are

necessary for the purpose. The point has not been argued at the Bar. In this connexion, reference may be made to Rule 28, Adaptation of Laws

Order, 1950, made by the President on 26th January 1960. So much of the Rule as bears upon the question reads;

Any Court, Tribunal or authority required or empowered to enforce any law in force in the territory of India immediately before the appointed day

(the 26th of January, 1960) shall, notwithstanding that this order makes no provision or insufficient provision for the adaptation of the law for the

purpose of bringing it into accord with the provisions of the Constitution, construe the law with all such adaptations as are necessary for the

purpose.

The short answer to the point is that this does not contemplate adaptation of the President''s order, the validity of which is under consideration.

Again, adaptations within the meaning of the Rule do not contemplate making new laws in place of the old nor enforcement of laws, that are

unconstitutional.

In relation to all other contentions raised at the Bar, I am in agreement with what has been said by my learned brother Narasimham J., with

whose conclusion I entirely agree. I would, therefore, direct that the petitioners in cases (Or. Misc. 182, 193, 193 and 191) be released forthwith.

Das, J.

I agree in general with the conclusion of my learned brother Narasimham J., in his judgment.

The whole question under discussion has now become academic in view of the repeal of of the President''s order by Central Act, IV [4] of

1960, which has come into operation before we pronounced our orders in these oases. It has not been disputed that without the President''s order,

the continuance of detentions in these oases under the existing Orissa Act would be illegal.

Panigrahi, J.

After anxious considera. tion of the points arising in these petitions, I have come to the conclusion that the order pro. posed by my learned

brother Narasimham J., is the right one. My mind has swayed alternately between two different principles of constructions; firstly, that it is the duty

of a Oourt to construe a statute so as to render it constitutional. Our respect for the integrity and patriotism of the Legislature is such that every

effort should be made to reconcile a piece of Legislation with the Oonstitution where it appears to be in apparent conflict with it. Secondly, it is

equally true that where the liberty of the citizen and the enactment of a Legislature are in conflict owing to the effect of the Legislation being left in

doubt, the benefit of the doubt should be given in favour of the liberty of the citizen. In spite of my earnest attempts to reconcile the Orisaa

Maintenance of Public Order Act, 1949 (orissa Act VI [6] of 1949) with the provisions of the Constitution of India as laid down in Articles 12 and

22, I have been unable to uphold the validity of the existing provisions of that Act.

I do not propose to examine the provisions of Sections 3 and 4, Orissa Act, and I am in entire agreement with the judgment just now

pronounced by my learned brother, that these sections should be declared void in law of the affirmative declaration made in Article 13 of the

Constitution. I am equally convinced that it is not open to the Court to substitute: ""three"" for ""six"" months in Section 4 (1) of the Act so as to

harmonize it with the Order of the President. That would be to re-write the law which is beyond the function of this Court. That is a field which

other bands should plough. A law which cannot endure the test of the Constitution without judicial amendment must perish. I have, therefore, no

hesitation in holding that both Sections 3 and 4, Orissa Act have been rendered void by Article 13.

What remains, therefore, is Section 2 (1) (a) which empowers the Provincial Government to detain a person. The scope of a law providing for

preventive detention is, however, delimited by Article 22(4) of the Constitution which says that ""no law providing for preventive detention shall

authorise the detention of a person for a longer period than three months"" unless an Advisory Board recommends the extension of the duration of

detention or unless the detention is in accordance with the provisions of any law made by Parliament. Section 2 (1) , Orissa Act breaks under this

test as it does not provide, for the Constitution of an Advisory Board as contemplated in Article 4(a), nor does it purport, to be made in

accordance with a law made by Parliament under Clause (7) of Article 22. The power vested by Section (2) (1) , Orissa Act, is, therefore, open

to the objection that it is inconsistent with. Article 22, Clause (4).

What has given me considerable difficulty is the language of Article 372(1) which reads as follows:

372 (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 bat subject to the other provisions of this

Constitution, all the law in force In the territory of India immediately before the commencement of this Oonstitution shall continue is force therein

until altered or repealed or amended by a competent Legislature or other competent authority.

The expression ""subject to the other provisions of this Constitution"" is capable of being understood in two different ways. ON the one hand it may

mean that all the laws in force will be subject to the other provisions of this Constitution and thus continue in force until altered or repealed. On the

other hand, it may mean that all the laws in force shall continue until altered or repealed by a competent Legislature or other competent authority,

subject to the other provisions of this Constitution. In the latter view the alteration, repeal or amendment will be subject to the provisions of the

Constitution while the laws in force are declared to continue. Unfortunately, this aspect of the matter was not canvassed at the Bar and I have,

therefore, to blaze my own track, after such study as I could make of similar provisions occurring in other Dominion Acts. Section 392,

Government of India Act, 1935 reads as follows:

Notwithstanding the repeal by this Aot of the Government of India Aot (that Is to say, the Government of India Act, 1919) but subject to the

other provisions of this Act, all the law in force in British India, Immediately before the commencement of Part III of this Aot shall continue in force

in British India until altered or repealed or amended by a competent Legislature or other competent authority.

Section 108, Commonwealth of Australia Constitution Act, 1900, reads as follows:

Every law in force in a colony which has become or becomes a State, and relating to any matter within the powers of Parliament of the

Commonwealth, shall subject to this Constitution, continue in foroe in that State; and until provision IB made in that behalf by the Parliament of the

Commonwealth, the Parliament of the State shall have suoh powers of alteration or repeal in respect ol any each law as the Parliament of the

Colony became a State.

Section 135, Union of South Africa Act, 1900,

Subject to the provisions of this Aot, all laws enforced in the several Colonies at the establishment of the Union shall continue in foroe in the

respective provinces until repealed or amended by Parliament or by the Provincial Councils in matters in respect of which the power to make

ordinanoe is reserved or delegated to them. All legal commissions in the several Colonies at the establishment of the Union shall continue as if the

Union had not been established.

Section 129, British North America Aot, 1867, reads:

All law! In force is Canada, Nova Scotia or New Brunawick at the Union .... shall continue in Onterio, Quebeo, Nova Sootia, or New

Brunswick, as if the Union had not been made; subject nevertheless to be repealed, abolished or altered ...

It will be found that the language employed in these different Aots is slightly different from that employed in the Constitution Act which corresponds

more or less to Section 135, Union of South-Africa Act. This provision aims at removing a void created by the new Constitution coming into force

and enacts the continuance of the existing laws. But the Constitution of India expressly provides in Article 13(1) that all laws inconsistent with the

provisions of Part III shall, to the extent of such inconsistency be void. On a simple reading of the two Articles, together, I am of opinion that

Article 379 (1) should be read subject to Article 13(1) and that all existing lawa which are inconsistent with Article 13(1) shall stand, impliedly

repealed. The meaning of the expression ''subject'' to the other provisions of this ''Constitution'' is to be found not so much in a strict etymological

propriety of language as in the intention of the Constitution makers to declare all laws inconsistent with the Fundamental Eights as void from the

date of commencement of the Constitution. The true nature and character of Article 13(1) can find expression only in giving supremacy over all

other existing laws if they are in conflict with the express provisions of this Article, if the other view were to prevail then all laws providing for

preventive detention shall continue in force until the Legislature chooses to alter or repeal them and until suoh time Article 13(1) shall remain a dead

letter. The obvious result of this interpretation will be that the fundamental rights so solemnly declared in part III of the Constitution shall cease to

be operative as being inconsistent with the existing laws and shall be reduced to silence until a competent Legislature or other competent authority

alters the existing laws. That is a result which I shudder to think of, it could never have been the intention of the Constiution makers to make the

fundamental rights so illusory provisions and intangible.

The other provision which has given me no less trouble is the language employed in Article 22(7) of the Constitution. I am satisfied that for the

transitional period the Order made by the President under that Article shall have the effect of a law made by Parliament by virtue of Article 373.

The order of the President came into force simultaneously with the Constitution as the Order was promulgated on 26th January 1950. There was

no void or gap between the old provisions lapsing and the new provisions coming into force, (If therefore, the order of the President is valid and

can help the State it will operate from the commencement of the constitution. But here, again, I have satisfied myself that the order of the President

has no effect upon the detention of the petitioners. Article 22(7) says :

Parliament may by law prescribe (a) the circumstances tinder which and the class or classes of cases is which a person may be detained for a

period longes than three months under any law providing for preventive detention, without obtaining the opinion of an Advisory Board in

accordancs with the provisions of Sub-clause (a) of Clause (4) and (b) the maximum period for which any person may in any class or classes of

cases be detained under any law providing for preventive detention.

To ''''prescribe"" is its etymological sense means ""to lay down, for direction."" Why did not the Constitution say that the Parliament may by law

provide or enact or make as it has done in the other Articles of the Constitution ? Article 139 (SIC) ""Parliament may by law confer"", Article 140

aays ""Parliament may by law make provisions etc."" Article 145 says''subject to the provisions any law made by Parliament,'' Article 340 says

Parliament may by law create or continue,"" Articles 340 and 346 enable Parliament to ""make"" laws, Article 247 and Article 371 use the

expression ''Parliament may by law provide."" Similarly, the President may by order ""specify"" under Article 370(1)(b)(ii). tinder the proviso to

Article 371 the President may by Order ""direct."" The difference in the language employed in the different articles, leads me to think that the use of

the word ""prescribe"" in Article 22(7) is not unintentional and that the word should be understood only in its etymological sense. So understood,

Article 23(7) read with Article 873 enables the President to prescribe by an order the circumstances and the class or classes of cases in which a

person may be detained for a period longer than three months under any law providing for preventive detention. He can also prescribe the

maximum period for which any person may be detained under any law providing for preventive detention. Subject to this prescription any law

providing for preventive detention may indicate that a personable detained. The President cannot, under this clause, purport to enact a law

providing for detention itself. His power is restricted to prescribing the limits within which a piece of legislation can be enacted. The Order of the

President can therefore be of no avail to the State in justification of the continuance of detention after the Constitution came into-force, It was open

to the State Legislature to undertake legislation within the limits prescribed by the President by his order dated 36th January 1950, jast as it was

open to the President to adapt the existing laws in exercise of his powers, conferred by Article 373(2). Nothing bas been done in this regard by

either authority and the only plea put forward by the learned Advocate-General is that they had not enough time to bring the existing laws in line

with the provisions of the Constitution. But the liberty of the citizen and the conveniences of the Legislature of the Executive cannot be weighed in

the same scales. As I have indicated at the beginning, the liberty of the citizen must prevail over other considerations, whether they be that the

Legislature had no time or whether they may be due to the fact that the legislation leaves the position in doubt.

By the Court.--The above are reasons given for the order already passed on 1st March 1950 directing the release of all the petitioners.

We further certify under Article 132(1) of the Constitution that this case involves a substantial question of law as to the interpretation of the

Constitution.