Rabindra Nath Mitra vs Chief Secretary, Government of West Bengal

The question for our decision in all these Rules, which were issued in favour of sixty-three persons as regards their detention in different jails, is whether their detention is valid. The learned Deputy Legal Remembrancer has produced before us for each of these persons the order of detention passed under the Preventive Detention Act. Prima facie, these are valid orders for detention. On behalf of the detained persons it has, however, been contended that the orders of detention are invalid. The first contention which is common to all the cases except a few, namely, Miscellaneous Cases Nos. 954 of 1960 and 55 of 1951, is that in communicating the grounds for detention, the detaining authority has, in each of these cases, mentioned as one of the facts on which the decision to detain was taken, the fact that the detenue either assisted or was connected with the Communist Party of India which was an illegal organisation, having been declared unlawful u/s 16 of the Criminal Law Amendment Act. It has been urged before us on the authority of the decision of this Court in the case of Narayan Chandra Baidya v. Chief Secretary to the Government of West Bengal (1951) CMC 648 of 1950 decided by Sen and Chunder JJ. on January 5, 1951, that this declaration is void in law. Consequently it was argued that the declaration of the Communist Party as unlawful having no validity in law cannot legally form the basis of any conclusion and thus the satisfaction of the detaining authority was not a satisfaction in law. It was held in the above case that--

Section 16 of the Indian Criminal Law'' Amendment Act is ultra vires and the declaration of the Communist Party of India as an unlawful association is, therefore, void and illegal.

It was further held that as the order of detention upon consideration of an illegal ground vitiates the entire detention order, the detention of persons that was based, among other things, on the reason that the Communist Party had been declared unlawful was bad in law. We are bound on the authority of this decision to hold that Section 16 of the Indian Criminal Law Amendment Act is void. We wish to add, with respect, that we ourselves are of the same view, as, in our opinion, the provisions of this section put a restriction on the fundamental right which the Constitution of India gives to every citizen under Article 19(2)(c) and which cannot be considered to be reasonable within the meaning of Clause (4) of that Article.

On the further question, however, whether the, fact that the order of detention was based partly on this illegal declaration vitiates the order, we are of opinion that the decision of this Court in Narayan Chandra Baidya''s case (supra) must be held to have been overruled by the Supreme Court''s decision in Tarapada De v. State of West Bengal (1951) CMC 648 of 1950 decided by Sen and Chunder JJ. on January 5, 1951. In that case the Supreme Court had to-consider the appeal of one hundred persons whose prayer for release under the provisions of Section 491 of the Code of Criminal Procedure and for a writ in the nature of habeas corpus under Article 226 of the Constitution of India had been refused by a Bench of this Court. The Supreme Court had, therefore, to decide in disposing of this appeal the legality of a large number of detention orders each of which was based among other things, on the fact that the Communist Party had been declared unlawful. In spite of this the Supreme Court held the detention to be legal. While the judgment delivered by their Lordships does not contain any discussion of the contention that is pressed before us we have to remember that this question was raised and discussed in the judgment of this Court which was appealed from; In dealing with this argument, Roxburgh J. and Lahiri J. expressed their view that, assuming that Section 16 of the Indian Criminal Law Amendment Act was invalid, this had no bearing on the validity of the orders of detention. This aspect of the matter was, therefore, present before the Supreme Court and by dismissing the appeal they must be held to have decided that the fact that the declaration of the Communist Party of India as an illegal association appeared as one of the grounds or particulars for detention did not vitiate the order for detention. The first contention, therefore, fails.

As regards most of the orders of detention, it was next urged that one or more of the'' allegations of facts that were communicated as "grounds" for detention or "supplementary grounds" for detention were outside the scope of the Preventive Detention Act and. thus irrelevant to the issue whether the detention was necessary for any of the purposes for which the Act authorised detention. It is argued that, if any of the facts which led to the satisfaction of the detaining, authority, that detention was necessary was clearly irrelevant, the order of detention is bad. This, in our judgment, necessarily follows from the proposition laid down by Sir Marice Gwyer in Tarapada De and Others Vs. The State of West Bengal, . So long as that decision is not overruled by the Supreme Court it must be held to be good law.

For the application of this law to the cases before us, we have examined for ourselves every order of detention, the grounds and the supplementary grounds communicated to the persons detained. It may be mentioned that in view of the clarification of the distinction of the grounds and particulars, by the Supreme Court, in Tarapada De''s case (supra), it is clear that the facts which have been attacked as outside the scope and irrelevant are really of the nature of particulars. That, however, in our judgment, does not affect the application of law that if detention is based on one or more bad reasons together with a number of good reasons the entire order of detention is vitiated.

In one of the cases we find it mentioned as one of the particulars that the person carried on anti-war propaganda. At first sight this appeared to us to be wholly irrelevant, but, on closer examination, we find that this fact was mentioned as one of the facts which, taken along with the other facts mentioned in the same communication, satisfied the authority that the person has been for a long time an active member of the Communist Party of India. It cannot, therefore, be held to be irrelevant.

The fact that the person took a leading part in hunger-strike inside jail was mentioned in another case, to be one of the particulars. This also appears at first sight to be wholly irrelevant, but, on an examination of the other facts, we find that this has been mentioned as one of the facts, which taken together, satisfied the authority of his close connection with the Communist Party of India and of the important position he held in the Party. It cannot, therefore, be held to be irrelevant.

Activities on the kisan front, participation in Tebhaga agitation, fomenting of strikes, anti-Government propaganda and several other facts, which it is not necessary to detail here, were mentioned in some of the other cases among the particulars for the grounds of detention. We find that these facts, or facts closely similar to these, were also included in the particulars that were communicated in the one hundred orders that were considered in Tarapada De''s case (supra). When, in spite of this, the Supreme Court held the detention of those persons to be legal it must be held that, in the view of the Supreme Court, these facts are not irrelevant. We are, therefore, bound to hold that they are not irrelevant. The second contention also, therefore, fails except as regards Case No. 55/51, which will be separately considered below.

In all the cases, it was contended further that the order of detention was mala fide. Only in some of these, namely, those in which orders were passed on February 27, 1950, a special argument was advanced that the very circumstances under which the orders were passed show that the orders could not be bond fide. We find that this argument that orders which were passed along with a large number of similar orders within a very short time on February 27, 1950 and which because they were served on the mid-night of February 26 and 27, 1950, have been described as "mid-night orders" were mala fide, was advanced before the Supreme Court in Tarapada De''s case (supra). That argument was rejected by the Supreme Court. We are bound, therefore, to reject the argument that the order should be held to be mala fide, because they were passed within a very short time. Nothing else has been shown before us from which we can hold that the orders were mala fide.

It was argued in a number of these cases before us that the detention orders having been passed either when a case was pending against the person detained or immediately after his discharge shall be held to have been passed for a collateral purpose and should, therefore, be considered to be mala fide. We have examined the records in all the cases in which cases were pending when the orders were passed and also those in which the detained persons were discharged just before the order was passed and we are unable to agree that these orders were passed for a collateral purpose. The Bombay decision in Maledath Bharathan Malyali v. Commissioner of Police ILR (1950) Bom. 438, cited on behalf of the Petitioners is clearly distinguishable and is of no help to the Petitioners.

It is necessary to consider next whether the provisions of Article 22(5) of the Constitution of India have been infringed, for, it has been decided by the Supreme Court in Tarapada De''s case (supra) that such infringement will render the detention invalid. In that case, the Supreme Court has held that Article 22(5) of the Constitution gives two fundamental rights to every detained person: the first, that the grounds on which an order of detention has been made shall be communicated "as soon as may be" to the detained person and the second, an independent though interrelated right, that the authority making the order shall afford the detained person the earliest opportunity of making a representation against the order. It has further been held by the Supreme Court that failure to communicate particulars to enable the detained person to make a representation amounts to an infringement of this second right. It is clear also that if the detained person is not informed as early as possible of his right to make a representation, and of the manner in which the representation should be made and is not given further facilities that may be necessary for making the representation, there is an infringement of this second fundamental right.

Keeping in view the above principles of law we have examined the communications that were made to the detained persons in each of these cases.

Their Lordships have discussed the merits of each individual Rule and passed appropriate order.