In    The King v. The Secretary of State for    Home Affairs(1), Scrutton LJ. observed: "A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed    in his conviction." It seems very arguable that in the whole set-up of Part III of our    Constitution these principles only remain guaranteed by article 21. A detailed discussion of the true limits of article 21 will not be necessary if article 22 is considered a code to the extent there are    provisions therein for preventive detention. In this. connection it may be noticed that     the articles in Part III deal with different and separate rights.     Under     the caption "Right to Freedom" articles 19--22    are grouped but each with a separate marginal note. It is obvious that article 22 (1) and (2) prescribe limita- tions on the right given by article 21. If the procedure mentioned in those articles is followed the arrest     and detention contemplated by article 22 (1) and (2), although they infringe the personal liberty of the individual,    will be legal, because that becomes the established legal proce- dure in respect of arrest and detention. Article 22 is     for protection against arrest and detention in certain cases, and runs as follows :--

"22. (1) No person who is arrested shall be detained in custody     without being informed, as soon as may be, of     the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of     his choice.

(2.) Every person who is arrested and detained in custo- dy shall be produced before the nearest magistrate within a period    of twenty-four hours of such arrest excluding     the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said    period    without     the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply(a) to     any person who for the time being is an enemy alien; or (1) (1923) 2 K.B. 361 at 382.

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(b) to any person who is arrested or detained under any     law providing for preventive detention.

(4)     No law providing for    preventive detention shall authorize the detention of a person for a longer period than three months unless-

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the    said period    of three months that there is in its opinion suffi- cient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention    of any person beyond    the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause 17); or

(b)     such person is detained in accordance with     the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).

(5)     When    any person is detained in pursuance .of an order made under any law providing for preventive detention, the authority    making the order shall, as soon as may     be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Nothing in clause (5) shall require the authority making    any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe-

(a)     the circumstances under which, 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 without obtaining the opinion of an Advisory Board     in accordance with the provisions of    sub- clause (a) of clause (4);

(b) the maximum period for which any person may ,in     any class or classes of cases be detained under any law provid- ing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)." The learned Attorney-General contended that the subject of preventive detention does not fall under

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article     21 at     all and is covered wholly by    article     22. According to him, article 22 is a complete code. I am unable    to accept that contention. It is obvious that in respect     of arrest and detention article 22 (1) and     (2) provide     safeguards. These safeguards are excluded in     the case of preventive detention by article 22 (3), but safe- guards    in connection with such detention are    provided by clauses     (4) to (7) of the same article. It is therefore clear that article 21 has to be read    as supplemented by article 22. Reading in that way the proper mode of construc- tion will be that to the extent the procedure is prescribed by article 22 the same is to be observed; otherwise article 21 will apply. But if certain procedural safeguards     are expressly stated as not required, or     specific rules on certain     points of procedure are prescribed, it seems     im- proper    to interpret these points as not covered by article 22 and left open for consideration under article 21. To     the extent     the points are dealt with,     and included     or excluded,, article 22 is a complete code. On the points of procedure which expressly or by necessary implication     are not dealt with by article 22, the operation of     article 21 will remain unaffected.     It is thus necessary first to    look at article 22 (4) to (7) and next at the provisions 0     the impugned Act to determine if the Act or any of     its provi- sions are ultra vires.     It may be noticed that neither     the American nor the Japanese Constitution     contain provisions permitting preventive detention,. much less    laying    down limitations on     such right of detention, in normal timeS, i.e., without a declaration of emergency. Preventive deten- tion in normal times,. i.e., without the existence of an emergency like     war,. is recognised as a normal topic of legislation in List I. Entry 9, and List III, Entry 3, of the Seventh Schedule.    Even in the Chapter on     Fundamental Rights    article 22 envisages legislation in respect of    pre- ventive detention in normal times. The provisions of article 22 (4)     to (7) by their very wording leave unaffected     the large powers of legislation on this point and emphasize particularly by article 22 (7) the power of the Parliament to deprive a person of a right to have his case considered by an advisory    board.    Part III and.

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article     22 in particular are the only restrictions on    that power and but for those provisions the power to legislate on this subject would have been quite unrestricted. Parliament could have made a law without any safeguard or any procedure for preventive detention. Such an autocratic supremacy of the legislature is certainly cut down by article 21. There- fore, if the legislature prescribes a procedure by a validly enacted     law and such procedure in the case of preventive detention does not come in conflict with the express provi- sions of Part III or article 22 (4) to (7), the Preventive Detention Act must be held valid notwithstanding that     the Court may not fully approve of the procedure prescribed under such Act.

Article 22 (4) opens with a double negative. Put in a positive form    it will mean that a law which provides     for preventive detention for a period longer than three months shall contain .a provision establishing an advisory board, (consisting of persons with the qualifications mentioned in sub-clause (a)), and which has to report before the expira- tion of three months if in its opinion there was sufficient cause for such detention. This clause, if it stood by itself and without the remaining provisions of article 22,    will apply both to the Parliament and the    State Legislatures. The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22 (7) (b). Again the whole of this sub-clause is    made inoperative by article 22    (4) (b) in respect of an Act of preventive detention passed by Parlia- ment under clauses (7) (a) .and (b). Inasmuch as the     im- pugned    Act is an Act of the Parliament purported to be so made, clause 22 (4) has no operation and may for the present discussion be kept aside. Article 22 prescribes that    when any person under a preventive detention law is detained, the authority making the order shall, as soon as may be, commu- nicate    to such person the grounds on which . the order     has been made and shall afford him the

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earliest opportunity of making a representation against     the order.    This clause is of general operation in     respect of every detention order made under any law permitting deten- tion. Article 22 (6) permits the authority making the order to withhold disclosure of facts which such authority consid- ers against the public interest to disclose.     It may be noticed that this clause only permits the non-disclosure of facts,    and reading clauses (5) and (6) together a distinc- tion is drawn between facts    and grounds of detention. Article 22 (4) and (7) deal not with the period of detention only but with other requirements in the case of preventive detention also. They provide for the establishment of an advisory board, and the necessity of furnishing grounds to the detenue and also to give him a right to make a represen- tation.     Reading article 22 clauses (4) and (7) together it appears     to be implied that preventive detention for    less than three months, without an advisory board, is permitted under the Chapter on Fundamental Rights, provided    such legislation is     within the legislative     competence of     the Parliament or the State Legislature, as the case may be. Article 22 (5) permits the detained person to make a representation.     The Constitution is silent as to the person to whom it has to be made, or how it has to be dealt with. But that is the procedure laid down by the Constitution. It does not therefore mean that if a law made by the Parliament in respect of preventive detention does not make provision on those two points it is invalid. Silence on these points does not make     the impugned Act in contravention of     the Constitution because the first question is what are     the rights    given by the Constitution in the case of preventive detention. The contention that the representation should be to an    outside     body has no support in law. Even in     the Liversidge case the representation had to be made to     the Secretary of State and not to another body.     After    such representation    was made, another advisory board had to consider it, but it was not necessary to make the represen- tation    itself    to a third party. Article 22 (4) and     (7) permit the non-establishment of an advisory board expressly in a parliamentary legislation-

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providing for preventive detention beyond three months. If so, how can it be urged that the nonestablishment of an advisory. board is a fundamental right violated by     the procedure prescribed in the Act passed by the Parliament? The important clause to be considered is article 22 (7). Sub-clause (a) is important-for this case. In the case of an Act of preventive detention passed by the Parliament this clause contained in the Chapter on Fundamental Rights,    thus permits     detention beyond a period of three months and     ex- cludes    the necessity of consulting an advisory     board,     if the opening words of the sub-clause are complied with.    Sub- clause    (b) is     permissive. It is not obligatory on     the Parliament to prescribe any maximum period. It     was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of sub-clause (7) itself and the Court cannot help in the matter. Subclause (c) permits     the Parliament to lay down the procedure to be followed by     the advisory board in an inquiry under sub-clause (a) of clause (4). I am unable to accept the contention that     article 22 (4) (a) is the rule and article 22 (7) the exception. I read them as two alternatives provided by the Constitution for making laws on preventive detention.

Bearing in mind the provisions of article 22 read    with article 246 and Schedule VII, List I, Entry 9, and List III, Entry 3, it is thus clear that the Parliament is empowered to enact a law of preventive detention (a)    for reasons connected with     defence, (b) for reasons connected    with foreign affairs, (c) for reasons connected with the security of India; and (under List III), (d) for reasons connected with the security of a State, (e) for reasons connected with the maintenance of public order, or (f) for reasons connect- ed with the maintenance of supplies and services essential to the community. Counsel for the petitioner has challenged the validity of several provisions of the Act.     In respect of the construction of a Constitution Lord Wright in James v. The Commonwealth of Australia(1), (1) (1936) A. 0. 578 at 614.

16

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observed that "a Constitution must not be construed in     any narrow     and pedantic    sense."     Mr. Justice    Higgins     in Attorney-General of New South Wales v.     Brewery Employees' Union (1), observed: "Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these    very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting--to remember    that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be." In In re The Central Provinces and Berar Act XIV of 1938 ("'), Sir Maurice Gwyer C.J. after adopting these observations said: "especially is this true of a Federal Constitution with its     nice balance of jurisdictions. I conceive that    a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the    lan- guage of the enactment in the interest of any legal or    con- stitutional theory or even for the purpose of supplying omissions or    of correcting supposed errors."     There     is considerable authority for the statement that the Courts are not at     liberty to declare an Act void because in their opinion     it is opposed to a spirit supposed to    pervade     the Constitution but not expressed in words. Where the funda- mental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legisla- ture we cannot declare a limitation under the notion of hav- ing discovered something in the spirit    of the Constitution which is not even mentioned in the instrument. It is diffi- cult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority.    It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone. But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and

(1) (1908) 6 Com. L.R. 469 at 611-12.    (2) (1939) F.C.R. 18 at 37.

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paramount law settled by the deliberate wisdom of the nation that one can find a safe and. solid ground for the authority of Courts of justice to declare void ,any legislative enact- ment.    Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too 'indefinite either for its own security. or the protection of private rights.

It    was first argued that by section 3 the Parliament had delegated its legislative power to the executive officer in detaining a person on his being satisfied of its necessi- ty. It was urged that the satisfaction must     be of     the legislative body. This contention of     delegation of     the legislative power in such cases has been considered     and rejected in numerous cases by our Federal Court and by     the English     Courts. It is unnecessary to refer to all those cases.     A reading of the various speeches in Liversidge v. Anderson clearly negatives this contention. Section 3 of the impugned Act is no delegation of legislative power to make laws. It only confers discretion on the     officer to enforce the law made by the legislature. Section 3 is    also impugned on the ground that it does not provide an objective standard which the Court can utilize for determining whether the requirements of law have been complied with. It is clear that no such objective standard of conduct can be pre- scribed, except as laying down conduct tending to achieve or to avoid a particular object.     For preventive detention action must be taken on good suspicion.     It is a subjective test based on the cumulative effect of     different actions, perhaps     spread over a considerable period. As    observed by Lord Finlay in The King v. Halliday (2), a Court is     the least appropriate tribunal to investigate the question whether     circumstances    of suspicion exist warranting     the restraint on a person.     The contention is urged in respect of preventive detention and not punitive detention. Before a person can be held liable for an offence it     is obvious that he should be in a position to know what he may do or not do, and an omission to do or not to do will result in the State

(1) (1942) A.C. 2C6. (2) (1917) A.C. 260 at 269. 122

considering him guilty according to the penal enactment. When it comes however to preventive detention, the    very purpose is to prevent the individual not merely from acting in a particular way but, as the sub-heads summarized above show, from achieving a particular object. It will not be humanly possible to tabulate exhaustively all actions which may lead to a particular object. It    has therefore    been considered that a punitive detention Act which    sufficiently prescribes the objects which the legislature considers    have not to be worked up to is. a sufficient standard to prevent the legislation being vague. In my opinion, therefore,     the argument of the petitioner against section 3 of the impugned Act fails. It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires. The answer is found in article 22 (7)    (b). A perusal of the provisions of the impugned Act moreover shows that in section 12 provision is made for detention for a period longer than three months but not exceeding one year in respect of     clauses (a) and (b) of that section.     It appears therefore that in respect of the rest of the clauses mentioned in section 3 (1)(a)the detention is    not contem- plated    to be for a period longer than three months, and in such cases a reference to the advisory board under section 9 is contemplated.

Section 7 of the Act which is next challenged, runs on the same lines as article 22 (5) and. (6) and in my opinion infringes no provision of the Constitution. It     was argued that this gave only the right of making a representation without being heard 'orally or without affording an opportu- nity to lead evidence and therefore was not     an orderly course    of procedure, as required by the rules     of natural justice. The Parliament by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also     has given him a right to make a representation. The Act     has thus complied with the requirements of article 22 (s).    That clause,     which prescribes what procedure has to be followed as a matter of fundamental right, is silent about the person detained having a right to be heard

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orally or by a lawyer.    The Constituent Assembly had before them the provisions of clause (1) of the same article.     The Assembly having dealt with the requirements of receiving grounds     and giving an opportunity to make a representation has deliberately refrained from providing a right to be heard orally. If so, I do not read the clause as guarantee- ing such right under article 22 (5). An "orderly course of procedure" is not limited to procedure which has been sanc- tioned    by settled usage. New forms of procedure are as much, held even by the Supreme Court of America, due process of law     as old forms, provided they give a person a    fair opportunity to present his case. It was contended that the right to make a representation in article 22 (5) must carry with it a right to be heard by an independent tribunal; otherwise the making of a representation has no substance because it is not an effective remedy.    I am unable to    read clause    (5) of .article 22 as giving a fundamental right to be heard by an independent tribunal. The    Constitution deliberately stops at giving the right     of representation. This is natural because under article 22 (7), in terms,     the Constitution permits the making of a law by Parliament in which a reference to an advisory board may be omitted.     To consider the right to make a representation as     necessarily including a right to be heard by an independent judicial, administrative or advisory tribunal will thus be directly in conflict with the express words of article 22 (7). Even according to the Supreme Court of U.S.A. a right to a judicial trial is not absolute. In the United States v. Ju Toy (1), a question arose about the exclusion from entry into the States, of a Chinese who claimed to be a citizen of the United States. At page 263 the majority judgment    con- tains the following passage :--" If for the     purpose of argument, we assume that the Fifth Amendment     applies to him, and that to deny entrance to a citizen is to deprive him ,of liberty, we nevertheless are of opinion that    with regard    to him due process of law does not require judicial trial: That is the result of the cases which we have cited, and the almost necessary result of the

(1) (198) U.S. 253 at 263.

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power of the Congress to pass exclusion laws. That     the decision may be entrusted to an executive officer, and    that his decision is due process of law, was affirmed and     ex- plained     in several cases. It is unnecessary to repeat     the often-quoted remarks of Mr. Justice Curtis, speaking for the whole Court, in Den Exden Murray v. Hoboken Land and     Im- provement Company (1), to. show that the requirement of a judicial trial does not prevail in every case." Again, I am not prepared to accept the' contention    that a right to be heard orally is an essential right of proce- dure even according to the rules of natural justice.     The right to make     a defence may be admitted, but there     is nothing to support the contention that an oral interview is compulsory. In the Local Government Board v. Arlidge    (2), the respondent applied to the Board constituted under     the Housing     Act to state a special case for the opinion of     the High Court, contending that the order was invalid because (1) the report of the Inspector had been treated as a confi- dential document and had not been disclosed to the respond- ent, and (2)    because the Board had declined to give     the respondent an    opportunity of being heard orally by     the person    or persons by whom the appeal was finally decided. The Board rejected the application. Both the    points    were urged before the House of Lords on     appeal. Viscount Haldane L.C. in his speech rejected the contention about the necessity of an oral hearing by observing "But it does     not follow    that the procedure of every tribunal    must be.the same.    In the     case of a Court of law     tradition in    this country     has prescribed certain principles to which, in     the main, the procedure must conform. But what that procedure is to be in detail must depend on the nature of a tribunal." In rejecting the contention about the     disclosure of     the report    of the Inspector, the Lord Chancellor    stated:     "It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so.     any more than it    would have been bound to disclose all     the minutes made on the papers in the office before (1) 18 HO.W. 272 at 280.     (2) (1915) A.C. 120. 125

a decision was come to     ......     What appears to me to    have been the fallacy of the judgment of the majority in     the Court of appeal is that it begs the question at the begin- ning by setting up the test of the procedure of a Court of justice     instead of the other standard which was laid    down for such cases in Board of Education v. Rice (1). I do     not think the Board was bound to hear the respondent orally provided it gave him the opportunities he actually had." In spite of the fact that in England the Parliament is supreme I am unable to accept the view that the Parliament in making laws, legislates against the well-recognised principles of natural justice accepted as such in all civilized countries. The same view is accepted in the United States     in Federal Communications Commission v. WJR The Goodwill Station (2). A right to lead evidence against    facts suspected to exist is also not essential in the case of preventive deten- tion.    Article 22 (6) permits the non-disclosure of facts. That is one of the clauses of the Constitution dealing    with fundamental rights. If even the non-disclosure of facts is permitted, I fail to see how there can exist    a right to contest     facts    by evidence and the noninclusion of    such procedural right could make this Act invalid. Section 10     (3) was challenged on the ground that it excludes the right to appear in person or by     any lawyer before the advisory board and it was argued that this was an infringement of a fundamental right. It must be noticed that article     22 (1) which gives a detained person    a right to consult     or be defended by his own legal practitioner is specifically excluded    by article 22 (3) in the case of legislation dealing with preventive detention.     Moreover,. the Parliament is expressly given power under article 22 (7) (c) to lay down the procedure in an inquiry by an advisory board. This is also a part of article 22 itself. If so, how can the omission to give a right to audience be considered -against the constitutional rights ?    It was    pointed     out that section 10 (3) prevents even the disclosure of a (1) (1911) A.C. 179. (2) 337 U.S. 265 at 276. 126

portion of the report and opinion of the advisory board.. It was argued that if so how can the detained person put forth his case before a Court and challenge the conclusions ? This argument was similarly advanced in Local Government Board v. Arlidge (1) and rejected, as mentioned above. In my opinion, the answer is in the provision found in article 22 (7) (c) of the Constitution of India.

It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State Govern- ment thought fit. This may mean an indefinite period. In my opinion this argument has nos substance because the Act has to be read as a whole., The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound. Again, by virtue of article 22 (7)(b), the Parliament is not obliged to fix the maximum term of such detention. It has not so fixed it, except under section 12, and therefore it cannot be stated that section 11 is in contravention of article 22 (7). Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of article 22 (7). It is argued that article 22 (7) permits preventive detention beyond three months, when the Parliament pre- scribes "the circumstances in which, and the class or class- es of cases in which," a person may be detained. It was argued that both these conditions must be fulfilled. In my opinion, this argument is unsound, because the words used in article 22 (7) themselves are against such interpretation. The use of the word "which" twice in the first part of the sub-clause, read with the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive. Such argument might have been possible (though not necessarily accepted) if' the article in the Constitution was "the circumstances. and the class or class- es of cases in which ...... "I have. no doubt that by the clause, as worded, the legislature-

(1) (1915) A.C. 120.

intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section. This contention therefore fails.

It was next contended that by section 12 the Parliament had provided that a person might be detained for a period longer than three months but not exceeding one year from the date of his detention, without obtaining the opinion of an advisory board, with a view to prevent him from acting in any manner prejudicial to (a) the defence of India, rela- tions of India with foreign powers or the security of India; or (b)the security of a State or the maintenance of public order. It must be noticed that the contingency provided in section 3 (1) (a) (iii), viz., the maintenance of supplies and services essential to the community is omitted in sec- tion 12. Relying on the wording of these two sub-sections in section 12, it was argued that in the impugned Act the wording of Schedule VII List I, Entry 9, and List III, Entry 3, except the last part, are only copied. This did not comply with the requirement to specify either the circum- stances or the class or classes of cases as is necessary to be done under article 22 (7) of the Constitution. Circum- stances ordinarily mean events or situation extraneous to the actions of the individual concerned, while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea. Determinable may be according to the nature of the object also. It is obvious that the classification can be by grouping the activities of people or by specifying the objectives to be attained or avoided. The argument advanced on behalf of the petitioner on this point does not' appeal to me because it assumes that the words of Schedule VII List I, Entry 9, and List III, Entry 3 are never capable of being considered as circum- stances or classes of cases. In my opinion, that assumption is not justified, particularly when we have to take into consideration cases of preventive

It was said that the safeguards provided in clauses (1) and (2) of article 22 are more or less covered by the provisions of the Criminal Procedure' Code, and this overlapping would have been avoided if article 21 were intended to bear the construction as indicated above. The argument overlooks that, while the provisions of the Code would be liable to alteration by competent legislative action, the safeguards in clauses (1)and (2) of article 22, being constitutional, could not be similarly dealt with: and this sufficiently explains why those safeguards find a place in the Constitution.

The only alternative to the construction I have indi- cated above, if a constitutional transgression is to be avoided, would be to interpret the reference to "law" as implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided for such amend- ment (article 368) that could modify or override a fundamen- tal right without contravening article 13 (2). 207

The question next arises as to how far the protection under article 21, such as it has been found to be, is avail- able to persons under preventive detention. The learned Attorney-General contended that article 21 did not apply to preventive detention at all, as article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention,and, provided only these provisions are conformed to, the validity of any law relat- ing to preventive detention could not be challenged. I am unable to agree with this view. The language of article 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons. If it was really the intention of the framers of the Constitution to exclude the application of article 21 to cases of preventive detention, nothing would have been easier than to add a reference to article 21 in clause (3) of article 22 which provides that clauses (1) and (2) of the latter shall not apply to any person who is arrested or detained under any law providing for preventive detention Nor is there anything in the language of clauses (4) to (7) of article 22 leading necessarily to the inference that article 21 is inapplicable to preventive detention. These clauses deal only with certain aspects of preventive deten- tion such as the duration of such detention, the constitu- tion of an advisory board for reviewing the order of deten- tion in certain cases, the communication of the grounds of detention to the person detained and the provision of an opportunity to him of making a representation against the order. It cannot be said that these provisions form an exhaustive code dealing with all matters relating to preven- tive detention and cover the entire area of protection which article 21, interpretedin the sense I have indicated above, would afford to the person detained. I am, therefore, of opinion that article 21 is applicable to preventive deten- tion as well.

I will now proceed to examine whether the impugned Act or any of its provisions under which the petitioner has been ordered to be detained, takes away any of the rights con- ferred by articles 21 and 22 or infringes the protection afforded thereby. The Outstanding fact to be borne in mind in this connection is that preventive detention has been given a constitutional status. This sinister-looking feature, so strangely out of place in a democratic constitution which invests personal liberty with the sacrosanctity of a fundamental right and so incompatible with the promises of its preamble is doubtless designed to prevent an abuse of freedom by anti-sOcial and subversive elements which might imperil the national welfare of the infant Republic. It is in this spirit that clauses (3) to (7) of article 22 should, in my opinion, be con- strued and harmonised as far as possible with article 21 so as not to diminish unnecessarily the protection afforded for the legitimate exercise of personal liberty. In the first place, as already stated, clause (3) of article 22 excludes a, person detained under any law providing for preventive detention from the benefit of the safeguards provided in clauses (1) and (2) No doubt clause (5) of the same article makes some amends for the deprivation of these safeguards in that it provides for the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded to him of making a representation against the order, but the important right to consult and to be defended by a legal practitioner of his choice is gone. Similarly, the prohibition against detention in custody beyond a period of 24 hours without the authority of a magistrate has also been taken away m cases of preventive detention. It was not disputed that, to the extent to which the express provisions of clauses (4) to (7) authorised the abrogation or abridgement of the safeguards provided under other articles or substitution of other safeguards in a modified form, those express provisions must rule. Of the four essentials of the due process on which Mr. Nambiar insisted, (which also form part of the ordinary and established procedure under the Criminal Procedure Code, though I cannot agree that they are immutable and beyond legislative change) the requirements of notice and an opportunity to establish his innocence must, as already stated, be taken to have been provided for by clause (5)of article 22. As for an ascertainable standard of conduct to which it is possible to conform, article 22 makes no specific provision in cases of preventive detention, and if such a safeguard can be said to be implicit in the procedure established by law in the sense explained above in preventive detention cases, it could no doubt be invoked. This point will be considered presently in dealing with provisions of the impugned Act. The only other essential requirement, and the most essen- tial of all, is an impartial tribunal capable of giving an unbiassed verdict. This, Mr. Nambiar submitted, was left unprovided for by article 22, the advisory board referred to in clause (4) (a) being, according to him, intended to deal solely with the question of duration of the detention, that is to say, whether or not there was sufficient cause for detaining the person concerned for more than three months, and not with judging whether the person detained was innocent. A tribunal which could give an unbiassed judg- ment on that issue was an essential part of the protection afforded by article21 in whichever way it may be interpret- ed, and reference was made in this connection to the preven- tive provisions of the Criminal Procedure Code (Ch. VIII). The impugned Act, not having provided for such a tribunal contravened article 21 and was therefore void. It will be seen that the whole of this argument is based on the major premise that the advisory board mentioned in clause (4) (a) of article 22 is not a tribunal intended to deal with the issue of justification of detention. Is that view correct? It was argued that the words "sufficient cause for such detention" in sub-clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that this view was supported by the language of sub- clause (a) of clause (7) whereby Parliament is authorised to prescribe the circumstances under'which and the class or classes of cases in which a person may be detained for a period longer than three months without the opinion of an advisory board. In other words, learned counsel submitted, the combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law autho- rising detention for such period even without the opinion of an advisory board. Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose. I am unable to accept this view. I am inclined to think that the words "such detention" in sub-clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months. An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons connected with defence, should be detained. That must be a matter for the executive authorities, the Depart- ment of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point. All that an advisory board can reasonably be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and not arbitrary or mala fide. The -fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period. Before any such tribunal could send in its report a reasonable time must elapse, as the grounds have to be communicated to the person detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel. Each of these steps may, in the course Of official routine, take some time, and 'three months' period might well have been thought a reasonable period to allow before the board could be-required to submit its report.

Mr. Nambiar's endeavour throughout has been to 257

establish that article 19 (1) (d) of the Constitution read with article 19 (5) enunciates the fundamental rights of the citizens regarding the substantive law of personal liberty, while article 21 embodies the protection as regards proce- dural law. This, in my opinion, would be looking at these provisions from a wrong angle altogether. Article 19 cannot be said to deal with substantive law merely, nor article 21 with mere matters of procedure. It cannot also be said that the provisions of article 19 (1) (d) read with clause (5) and article 21 are complementary to each other. The con- tents and subject matter of the two provisions are not identical and they proceed on totally different princi- ples. There is no mention of any "right to life" in article 19, although that is the primary and the most important thing for which provision is made in article 21. If the contention of the learned counsel is correct, we would have to hold that no protection is guaranteed by the Constitution as regards right to life so far substantive law is con- cerned. In the second place, even if freedom of movement may be regarded as one of the ingredients of personal liberty, surely there are other elements included in the concept and admittedly no provision for other forms of personal liberty are to be found in article 19 (5) of the Constitution. Furthermore article 19 is applicable to citizens only, while the rights guaranteed by article 21 are for all per- sons. citizens as well as aliens. The only proper way of avoiding these anomalies is to interpret the two provisions as applying to different subjects and this would be the right conclusion if we have in mind the scheme which under- lies this group of articles.

I will now turn to the language of article 19 (1) (d) and see whether preventive detention really comes within its purview. Article 19 (1) (d) provides that all citizens shall have the right to move freely throughout the territory of India. The two sub-clauses which come immediately after sub-clause (d) and are intimately connected with it, are in these terms:

"(e) To reside and settle in any part of the territory of India;

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(f) to acquire, hold and dispose of property." Clause (5)relates to all these three sub-clauses and lays down that nothing in them shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub- clause either in the interests of the general public or for the protection of the interests of any scheduled tribe. I agree with the learned Attorney-General that in con- struing article 19 (1) (d) stress is to be laid upon the expression "throughout the territory of India," and it is a particular and special kind of right, viz., that of free movement throughout the Indian territory, that is the aim and object of the Constitution to secure. In the next sub- clause, right tO reside and settle "in any part of the territory of India" is given and here again the material thing is not the right of residence or settlement but the right to reside or settle in any part of the Indian territo- ry. For an analogous provision, we may refer to article 301 which says that subject to the other provisions of this Part, commerce and intercourse throughout the territory of India shall be free. The meaning of sub-clause (d) of arti- cle 19 (1) will be clear if we take it along with sub- clauses (e) and (f), all of which have been lumped together in clause (5) and to all of which the same restrictions including those relating to protecion of the interest of any scheduled tribe have been made applicable. It will be remembered that these rights are available only to citizens. To an alien or foreigner, no guarantee of such rights has been given. Normally all citizens would have the free right to move from one part of the Indian territory to another. They can shift their residence from one place to any other place of their choice and settle anywhere they like. The right of free trade, commerce and intercourse throughout the territory of India is also secured. What the Constitu- tion emphasises upon by guaranteeing these rights is that the whole of Indian Unian in spite of its being divided into a number of States is really one unit as far as the citizens of the Union are concerned. All the

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citizens would have the same privileges and the same facilities for moving into any part of the territory and they can reside or carry on business anywhere they like; and no restrictions either inter-State or otherwise would be allowed to set up in these respects between one part of India and another.

So far as free movement throughout the territory is concerned, the right is subject to the provision of clause (5), under which reasonable limitation may be imposed upon these liberties in the interests of the general public or protection of any scheduled tribe. The interests of the public which necessitates such restrictions may be of var- ious kinds. They may be connected with the avoidance of pestilence or spreading of contagious diseases; certain places 'again may be kept closed for military purposes and there may be prohibition of entry into areas which are actual or potential war zones or where disturbances of some kind or other prevail. Whatever the reasons might be, it is necessary that these restrictions must be reasonable, that is to say, commensurate with the purpose for which they are laid down. In addition to general interest, the Constitu- tion has specified the protection of the interests of the scheduled tribes as one of the factors which has got to be taken into consideration in the framing of these restric- tions. The scheduled tribes, as is well known, are a back- ward and unsophisticated class of people who are liable to be imposed upon by shrewd and designing persons. Hence there are various provisions disabling them from alienating even their own properties except under special conditions. In their interest and for their benefit, laws may be made restricting the ordinary right of citizens to go or settle in particular areas or acquire property in them. The refer- ence to the interest of scheduled tribe makes it quite clear-that the free movement spoken of in the clause relates not to general rights of locomotion but to the particular right of shifting or moving from one part of the Indian territory to another, without any sort of discriminatory barriers.

This view will receive further support if we look to some analogous provisions ,in the Constitution of 260

other countries. It will be seen that sub-clauses (d) (e) and (f)of article 19 (1) are embodied in almost identical language in one single article, viz., article 75 of the Constitution of the Free City of Danzig. The article runs as follows:

"All nationals shall enjoy freedom of movement within the free city and shall have the right to stay and to settle at any place they may choose, to acquire real property and to earn their living in any way. This right shall not be curtailed without legal sanctions."

The several rights are thus mentioned together as being included in the same category, while they are differentiated from the "liberty of the person" which is "described to be inviolable except by virtue of a law" in article 74 which appears just previous to this article. An analogous provi- sion in slightly altered language occurs in article 111 of the Constitution of the German Reich which is worded in the following manner:

All Germans enjoy the right of change of domicile within the whole Reich. Every one has the right to stay in any part of the Realm that he chooses, t6 settle there, acquire landed property and pursue any means of livelihood." Here again the right to personal liberty has been dealt with separately in article 114. A suggestion was made in course of our discussions that the expression "throughout the territory of India" occurring in article 19 (1) (d) might have been used with a view to save Passport Regulations or to emphasise that no rights of free emigration are guaran- teed by the Constitution. The suggestion does not seem to me to be proper. No State can guarantee to its citizens the. free right to do anything outside its own territory.This is true of all the fundamental rights men- tioned in article 19 and not merely of the right of free movement. Further it seems to me that the words "throughout the territory of India" have nothing to do with rights of emigration. We find that both in the Danzig as well as in the German Constitution, where similar words have been used with regard to the excercise of the right of free movement throughout the.

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territory, there are specific provisions which guarantee to all nationals the free right of emigration to other coun- tries (vide article 76 of the Danzig Constitution and arti- cle 112 of the Constitution of the German Reich). In my opinion, therefore, preventive detention does not come either within the express language or within the spirit and intendment of clause (1) (d) of article 19 of the Constitu- tion which deals with a totally different aspect or form of civil liberty.

It is true that by reason of preventive detention, a man may be prevented from exercising the right of free movement within the territory of India as contemplated by article 19 (1) (d) of the Constitution, but that is merely incidental to or consequential upon loss of liberty resulting from the order of detention. Not merely the right under clause (1) (d), but many of the other rights which are enumerated under the other-sub-clauses of article 19 (1) may be lost or suspended so long as preventive detention continues. Thus a detenu so long as he is under detention may not be able to practise any profession, or carry on any trade or business which he might like to do; but this would not make the law providing for preventive detention a legislation taking away or abridging the rights under article 19 (1) (g) of the Constitution and it would be absurd to suggest that in such cases the validity of the legislation should be tested in accordance with the requirement of clause (6) of article 19'and that the only restrictions that could be placed upon the person's free exercise of trade and profession are those specified in that clause. Mr. Nambiar concedes that in such cases we must look to the substance of the particular legis- lation and the mere fact that it incidentally trenches upon some other right to which it does not directly relate is not material. He argues, however, that the essence or substance of a legislation which provides for preventive detention is to take away or curtail the right of free move- ments and in fact, "personal liberty" according to him, connotes nothing else but unrestricted right of locomotion. The learned counsel refers in this connection to certain passages in Blackstone's Commentaries on the Laws of Eng- land, where

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the author discusses what he calls the three absoluterights inherent in every Englishman, namely, rights of personal security, personal liberty and property. "Personal security", according to Blackstone, consists in a person's legal and uninterrupted enjoyment of his life, his limb, his body, his health and his reputation; whereas "personal liberty" consists in the power of locomotion, of changing of situation or moving one's person to whatsoever place one's own inclination may direct without imprisonment or restraint unless by due course of law (1). It will be seen that Blackstone uses the expression "personal liberty" in a somewhat narrow and restricted sense. A much wider and larger connotation is given to it by later writers on con- stitutional documents, particularly in America. In ordinary language "personal liberty" means liberty relating to or concerning the person or body of the individual; and "per- sonal liberty" in this sense is the antithesis of physical restraint or coercion. According to Dicey, who is an acknowledged authority on the subject "personal liberty" means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification(2). It is, in my opinion, this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory.

In this connection, it may not be irrelevant to. point out that it was in accordance with the recommendation of the'Drafting Committee that the word "personal" was inserted before "liberty" in article 15 of the Constitution which now stands as article 21. In the report of the Drafting Commit- tee it is stated that the word "liberty" should be quali- fied by the insertion of the word "personal" before it; otherwise, it might be construed very widely so as to in- clude even the freedoms already dealt with in article 13. Article. 13, it should be noted, is the present article 19. If the views of the Drafting Committee were accepted by the

(1) Vide Chase's Blackstone, 4th Edn, pp. 68, 73. (2) Vide Dicey on Constitutional Law, 9th Edn, pp. 207-208. 263

Constituent Assembly, the intention obviously was to exclude the contents of article 19. from the concept of "personal liberty" as used in article 21. To -what extent the meaning of words used in the Constitution could be discovered from reports of Drafting Committee or debates on the floor of the House is a matter not quite free from doubt and I may have to take up this matter later on when discussing the meaning of the material clause in article 21 of the Constitution. It is enough to say at this stage that if the report of the Drafting Committee is an appropriate material upon which the interpretation of the words of the Constitution could be based, it certainly goes against the contention of the applicant and it shows that the words used in article 19 (1) (d) of the Constitution do not mean the same thing as the expression "personal liberty" in article 21 does. It is well known that the word "'liberty" standing by itself has been given a very wide meaning by the Supreme Court of the United States of America. It includes not only personal freedom from physical restraint but the right to the free use of one's own property and to enter into free contractual relations, In the Indian Constitution, on the other hand, the expression "personal liberty" has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise. Apart from the report of the Drafting Committee, that is the plain grammatical meaning of the expression as I have already explained.

It may not, I think, be quite accurate to state that the operation of article 19 of the Constitution is limited to free citizens only and that the rights have been described in that article on the presupposition that the citizens are at liberty. The deprivation of personal liberty may entail as a consequence the loss or abridgement of many of the rights described in article 19, but that is because the nature of these rights is such that free exercise of them is not possible in the absence of personal liberty. On the other hand, the right to hold and dispose of property which is in subclause (f) of article 19 (1) and which is not dependent on full possession of personal liberty by the owner may

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not be affected if the owner is imprisoned or detained. Anyway, the point is not of much importance for purposes of the present discussion. The result is that, in my opinion, the first contention raised by Mr. Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the Preventive Detention Act and see whether it is within the permissible bounds specified in clause (5) of article 19.

I now come to the second point raised by Mr. Nambiar in support of the application; and upon this point we had arguments of a most elaborate nature addressed to us by the learned counsel on both sides, displaying a considerable amount of learning and research. The point, however, is a short one and turns upon the interpretation to be put upon article 21 of the Constitution, which lays down that "no person shall be deprived of his ........ personal liberty, except according to procedure established by law." On a plain reading of the article the meaning seems to be that you cannot deprive a man of his personal liberty, unless you follow and act according to the law which provides for deprivation of such liberty. The expression "procedure" means the manner and form of enforcing the law. In my opinion, it cannot be disputed that in order that there may be a legally established procedure, the law which establish- es it must be a valid and lawful law which the legislature is competent to enact in accordance with article 245 of the Constitution and the particular items in the legislative lists which it relates to. It is also not disputed that such law must not offend against the fundamental rights which are declared in Part III of the Constitution. The position taken up by the learned Attorney-General is that as in the present case there is no doubt about the competency of that Parliament to enact the law relating to preventive detention which is fully covered by Item 9 of List I, and Item 3 of List III, and as no question of the law being reasonable or otherwise arises for consideration by reason of the fact that article 19 (1) (d) is not attracted to this case, the law must be held to be a valid piece of legisla- tion and if the procedure

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laid down by it has been adhered to, the validity of the detention cannot possibly be challenged. His further argu- ment is that article 22 specifically provides for preventive detention and lays down fully what the requirements of a legislation on the subject should be. As the impugned Act conforms to the requirements of article 22, no further ques- tion of its validity under article 21 of the Constitution at all arises. The latter aspect of his arguments, I will deal with later on. So far as the main argument is concerned,the position taken up by Mr. Nambiar is that article 21 refers to 'procedure only and not to substan- tive law the procedure, however, must be one which is established by law. The expression "law" in this context does not mean or signify, according to the learned counsel, any particular law enacted by the legislature in conformity with the requirements of the Constitu- tion or otherwise possessing a binding authority. It refers to law in the abstract or general sense--in the sense of jus and not lex--and meaning thereby the legal principles or fundamental rules that lie at the root of every system of positive law including our own, and the authority of which is acknowledged in the jurisprudence of all civilised coun- tries. It is argued that if the word "law" is interpret- ed in the sense of any State-made law, article 21 could not rank as a fundamental right imposing a check or limitation on the legislative authority of the Government. It will be always competent to the legislature to pass a law laying down a thoroughly arbitrary and irrational procedure opposed to all elementary principles of justice and fairness and the people would have no protection whatsoever, provided such procedure was scrupulously adhered to. In support of this argument the learned counsel has relied upon a large number of American cases, where the Supreme Court of America ap- plied the doctrine of "due process of law" as it appears in the American Constitution for the purpose of invalidating various legislative enactments which appeared to that Court to be capricious and arbitrary and opposed to the fundamen- tal principles of law.

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It may be noted here that in the original draft of the Indian Constitution the words used in article 15 (which now stands as article 21) were "in accordance with due process of law." The Drafting Committee recommended that in place of the "due process" clause, the expression "according to procedure established by law" should be substituted. The present article 21 seems to have been modeled on article 31 of the Japanese Constitution, where the language employed is "no person shall be deprived of'life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." Mr. Nambiar argues that the expression "procedure established by law" in article 21 of the Constitution bears the same meaning as the "due process" clause does in America, restricted only to this extent, viz., that it is limited to matters of procedure and does not extend to questions of substantive law. To appre- ciate the arguments that have been advanced for and against this view and to fix the precise meaning that is to be given to this clause in article 21, it would be necessary to discuss briefly the conception of the doctrine of "due process of law" as it appears in the American Constitution and the way in which it has been developed and applied by the Supreme Court of America.

In the history of Anglo-American law, the concept of "due process of law" or what is considered to be its equiva- lent "law of the land" traces its lineage far back into the beginning of the 13th century A.D. The famous 39th chapter of the Magna Charta provides that "no free man shall be taken or imprisoned or disseized, or outlawed or exiled or in any way destroyed; nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land." Magna Charta as a charter of English liberty was confirmed by successive English monarchs and it is in one of these confirmations (28 Ed. III, Chap. 3) known as "Statute of Westminster of the liberties of London", that the expression "due process of law" for the first time appears. Neither of these phrases was explained or defined in any of the

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-documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning. In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made (1). These concepts came into America as part of the rights of Englishmen claimed by the colonists. The expression in one form or other appeared in some of the earlier State Constitutions and the exact phrase "due process of law" came to be a part of the Federal Constitution by the Fifth Amendment which was adopted in 1791 and which provided that "no person shall... be deprived of life, liberty or property without due process of law." It was imposed upon the State Constitution in almost identical language by the Fourteenth Amendment in the year 1868. What "due process of law" exactly means is difficult to define even at the present day, The Constitution contains no description of what is "due process of law" nor does it declare the principles by application of which it could be ascertained. In Twining v. New Jersey (2) the Court ob- served:

heads or subjects in the two Items in the legislative lists, namely, Item No. 9 of List I and Item No. 3 of List III which deal with preventive detention. Item No. 9 of List I mentions reasons connected with defence, foreign affairs and security of India, while Item No. 3 of List III speaks of reasons connected with security of a State, the maintenance of public order and the maintenance of supplies and services essential to the community. With the exception of the last head; all the remaining five have been listed in section 12 of the preventive Detention Act and they have been mentioned both as circumstances and classes of cases in which deten- tion for more than three months would be permissible without the opinion of any advisory board. Mr. Nambiar's argument is that the mentioning_ of five out of the six legislative heads in section 12 does not amount to prescribing the circumstances under which, or the classes of cases in which, a person could be detained for more than three months as contemplated by article 22 (7) (a). It is also contended that in view of the fact that the two items "circumstances" and "classes" are separated by the conjunction "and," what the Constitution really contemplated was that both these items should be specified and a statement or specification of any one of them would not be a proper compliance with the provisions of the clause. It is further pointed out that the mentioning of the same matters as "circumstances" or "classes" is not warranted by article 22 (7) of the Consti- tution and is altogether illogical and unsound. I must say that section 12 has been drafted in a rather clumsy manner and certainly it could have been framed in a better and more proper way. Under article 22(7)(a), the Parliament may specify the circumstances under which, and the classes of cases in which, the necessity of placing the cases of detention for examination by the advisory board could be dispensed with. By "classes of cases" we mean certain determinable groups, the individuals comprised in each group being related to one another in a particular way which constitutes the determining factor of that group. "Circumstances" on the other hand

connote situations or conditions which are external to the persons concerned. Preventive detention can be provided for by law for reasons connected with six different ,matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision contained in article 22 (4) (a) which lays down that deten- tion for more than three months could not be permitted except with the sanction of the advisory board. An alterna- tive however has been provided for by clause (b) and Parlia- ment has been given the option to take away the protection given by clause (a) and specify the circumstances and the cases when this rule will not apply. I am extremely doubt- ful whether the classification of cases made by Parliament in section 12 of the Act really fulfils the object which the Constitution had in view. The basis of classification has been the apprehended acts of the persons detained described with reference to the general heads mentioned in the items in the legislative lists as said above. Five out of the six heads have been taken out and labelled as classes of cases to which the protection of clause (4) (a) of the article would not be available. It is against common sense that all forms of activities connected with these five items are equally dangerous and merit the same drastic treatment. The descriptions are very general and there may be acts of various degrees of intensity and danger under each one of these heads.

Although I do not think that section 12 has been framed with due regard to the object which the Constitution had in view, I am unable to say that the section is invalid as being ultra vires the Constitution. The Constitution has given unfettered powers to Parliament in the matter of making the classifications and it is open to the Parliament to adopt any method or principle as it likes. If it chose the principle implied in the enumeration of subjects under the relevant legislative heads, it cannot be said that Parliament has exceeded its powers.

I am also unable to hold that both "circumstances" as well as "classes" have to be prescribed in order to 282

comply with the requirement of sub-clause (a) of article 22 (7). The sub-clause (a) of the article lays down a purely enabling provision and Parliament, if it so chooses, may pass any legislation in terms of the same. Where an optional power is conferred on certain authority to perform two separate acts, ordinarily it would not be obligatory upon it to perform both; it may do either if it so likes. Here the classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing them from committing certain apprehended acts. I am extremely doubtful whether the classes themselves could be described as "circumstances" as they purport to have been done in the section. "Circumstances" would ordinarily refer to conditions like war, rebellion, communal disturbances and things like that, under which extra precaution might be :necessary and the detention of suspected persons beyond the period of three months without the sanction of the advisory board might be justified. It is said that the likelihood of these persons committing the particular acts which are specified might constitute "circumstances." In my opinion, that is not a plain and sensible interpretation. But whatev- er that may be, as I am of opinion that it is not obligatory on Parliament to prescribe both the circumstances and the classes of cases, I am unable to hold that section 12 is ultra vires the Constitution because the circumstances are not mentioned. As I have said at the beginning, the draft is rather clumsy and I do not know why Parliament used the word "or" when in the Constitution itself the word "and" has been used.

In the fourth and last point raised by Mr. Nambiar the principal question for consideration is the validity of section 14 of the Preventive Detention Act. Subsection (1)of section 14 prohibits any Court from allowing any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or any representation made by him against such order. It further provides that no Court shall be 283

entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an advisory board or that part of the report of an advisory board which is confidential. Sub-section (2) further provides that: "It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the' case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1): Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order."

The provisions of this section are obviously of a most drastic character. It imposes a ban on the Court and pre- vents it from allowing any statement to be made or any evidence produced before it of the substance of any communi- cation made to the detenu apprising him of the grounds upon which the detention order was made. The Court is also incompetent to look into the proceedings before the advisory board or the report of the latter which is confidential. Further the disclosure of such materials has been made a criminal offence punishable with imprisonment for a term which may extend to one year. Mr. Nambiar's contention is that these restrictions render utterly nugatory the provi- sions of article 32 of the Constitution which guarantees to every person the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution. It is not disputed that the petitioner has the right of moving this Court for a writ of habeas corpus, and unless the Court is in a position to look into and examine the grounds upon which the detention order has been made, it is impossible for it to come to any deci- sion on the point and pass a proper judgment. Though the right to move this

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Court is not formally taken away, the entire proceedings are rendered ineffective and altogether illusory. On behalf of the respondent, it is pointed out that article 32 guarantees only the right to constitutional remedy for enforcement of the rights which are declared by the Constitution. If there are no rights under the Constitution, guaranteed to a person who is detained under any law of preventive deten- tion, no question of enforcing such rights by an ap- proach to this Court at all arises. I do not think that this argument proceeds on a sound basis; and in my opinion, section 14 does take away and materially curtails some of the fundamental rights which are guaranteed by the Constitu- tion itself. Article 22, clause (5), of the Constitution lays down as a fundamental right that when a person is detained for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representa- tion against the order. Under clause (6), the authority need not disclose such facts as it considers to be against public interest to disclose. But so far as the grounds are concerned, the disclosure is not prohibited under any cir- cumstance. It is also incumbent upon the detaining authori- ty to afford a detenu the earliest opportunity of making a representation against the detention order. It has been held in several cases, and in my opinion quite rightly, that if the grounds supplied to a detained person are of such a vague and indefinite character that no proper and adequate representation could be made in reply to the same, that itself would be an infraction of the right which has been given to the detenu under law. In my opinion, it would not be possible for the Court to decide whether the provisions of article 22, clause (5), have been duly complied with and the fundamental right guaranteed by it has been made avail- able to the detenu unless the grounds communicated to him under the provisions of this article are actually produced before the Court. Apart from this, it is also open to. the person detained to contend that the detention 285

order has been a main fide exercise of power by the detain- ing authority and that the grounds upon which it is based, are not proper or relevant grounds which would justify detention under the-provisions of the law itself. These rights of the detenu would for all practical purposes be rendered unenforceable if the Court is precluded from look- ing into the grounds which have been supplied to him under section 7 of the Preventive Detention Act. In my opinion, section 14 of the Preventive Detention Act does materially affect the fundamental rights declared under Part III of the Constitution and for this reason it must be held to be illegal and ultra vires. It is not disputed, however, that this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way. The whole Act cannot, therefore, be held to be ultra vires. Mr. Nambiar has further argued that section 3 of the Act also contravenes the provisions of article 32 of the Consti- tution, for it makes satisfaction of the particular authori- ties final in matters of preventive detention and thereby prevents this Court from satisfying itself as to the propriety of the detention order. This contention cannot succeed as no infraction of any fundamental right is in- volved in it. As has been pointed out already, this Court cannot interfere unless it is proved that the power has been exercised by the authorities in a mala fide manner or that the grounds are not proper or relevant grounds which justify detention. The provisions are undoubtedly harsh, but as they do not take away the rights under articles 21 and 22 of the Constitution, they cannot be held to be illegal or ultra vires.

The result, therefore, is that, in my opinion, the Preventive Detention Act must be declared to be intra vires the Constitution with the exception of section 14 which is held to be illegal and ultra vires. The present petition, however, must stand dismissed, though it may be open to the petitioner to make a fresh application if he so chooses and if the grounds that have been supplied to him under section 7 of the Act do furnish adequate reasons for making such application.

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DAS J.--I am likewise of opinion that this application should be dismissed.

The contention of learned counsel appearing in support of this application is that the provisions of the Preventive Detention Act, 1950 (Act IV of 1950), are extremely drastic and wholly unreasonable and take away or, in any event, considerably abridge the fundamental rights conferred on the citizens by the provisions of Part III of the Constitution and that this Court should declare the Act wholly void under article 13 (2) of the Constitution and set the petitioner at liberty.

It is necessary to bear in mind the scope and ambit of the powers of the Court under the Constitution. The powers of the Court are not the same under all Constitutions. In England Parliament is supreme and there is no limitation upon its legislative powers. Therefore, a law duly made by Parliament cannot be challenged in any Court. The English Courts have to interpret and apply the law; they have no authority to declare such a law illegal or unconstitutional. By the American Constitution the' legislative power of the Union is vested in the Congress and in a sense the Congress is the supreme legislative power. But the written Constitu- tion of the United States is supreme above all the three limbs of Government and, therefore, the law made by the Congress, in order to be valid, must be in conformity with the provisions of the Constitution. If it is not, the Supreme Court will intervene and declare that law to be unconstitutional and void. As will be seen more fully hereafter, the Supreme Court of the United States, under the leadership of Chief Justice Marshall, assumed the power to. declare any law unconstitutional on the ground of its not being in "due process of law," an expression to be found in the Fifth Amendment (1791) of the United States Constitution and the Fourteenth Amendment (1868) which related to the State Constitutions. It is thus that the Supreme Court established its own supremacy over the executive and the Congress. In India the position of the Judiciary is some- where in

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between the Courts in England and the United States. While in the main leaving our Parliament and the State Legisla- tures supreme in their respective legislative fields, our Constitution has, by some of the articles, put upon the Legislatures certain specified limitations some of which will have to be discussed hereafter. The point to be noted, however, is that in so far as there is any limitation on the legislative power, the Court must, on a complaint being made to it, scrutinise and ascertain whether such limitation has been transgressed and if there has been any transgression the Court will courageously declare the law unconstitution- al, for the Court is bound by its oath to uphold the Consti- tution. But outside the limitations imposed on the legisla- tive powers our Parliament and the State Legislatures are supreme in their respective legislative fields and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature. Our Constitution, unlike the English Constitution, recognises the Court's supremacy over the legislative authority, but such supremacy is a very limited one, for it is confined to the field where the legislative power is circumscribed by limitations put upon it by the Constitution itself. Within this restrict- ed field the Court may, on a scrutiny of the law made by the Legislature, declare it void if it is found to have trans- gressed the constitutional limitations. But our Constitu- tion, unlike the American Constitution, does not recognise the absolute supremacy of the Court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our Parliament and the State Legislatures are supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States. It is well for us to constantly remember this basic limitation on our own powers.

The impugned Act has been passed by Parliament after the Constitution came into force. Article 246 gives exclusive power to Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule and it gives exclusive power to

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the State Legislatures to make laws with respect to any of the matters specified in List II of that Schedule. It also gives concurrent power to Parliament as well as to the State Legislatures to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule. Residuary powers of legislation are vested in parliament under article

248.

The first thing to note is that under Entry 9 of List I the parliament and under Entry 3 in List III both parliament and the State Legislatures are empowered to make laws for preventive detention for reasons connected with the several matters specified in the respective entries. This legisla- tion is not conditioned upon the existence of any war with a foreign power or upon the proclamation of emergency under Part XVIII of the Constitution. Our Constitution has, there- fore, accepted preventive detention as the subjectmatter of peacetime legislation as distinct from emergency legisla- tion. It is a novel feature to provide for preventive detention in the Constitution. There is no such provision in the Constitution of any other country that I know of. Be that as it may, for reasons good or bad, our Constitution has deliberately and plainly given power to Parliament and the State Legislatures to enact preventive detention laws even in peacetime. To many of us a preventive detention law is odious at all times but what I desire to emphasise is that it is not for the Court to question the wisdom and policy of the Constitution which the people have given unto themselves. This is another basic fact which the Court must not overlook.

The next thing to bear in mind is that, if there were nothing else in the Constitution, the legislative powers of Parliament and the State Legislatures in their respective fields would have been absolute. In such circumstances the Court would have been entitled only to scrutinise whether Parliament or the State Legislature had, in making a partic- ular law, over-. stepped its legislative field and en- croached upon the legislative field of the other legislative power, but could not have otherwise questioned the validity of any law made by the parliament or the State Legislatures. 289

Thus under Entry 9 of List I the Parliament and under Entry 3 of List III the Parliament and the State Legislature could make as drastic a preventive detention law as it pleased. Such a law might have authorised a policeman, not to speak of a District Magistrate or Sub-Divisional Magistrate or the Commissioner of Police, to take a man, citizen or non-citi- zen, into custody and keep him in detention for as long as he pleased. This law might not have made any provision for supplying to the detenu the grounds of his detention or affording any opportunity to him to make any representation to anybody or for setting up any advisory board at all. Likewise, under Entries 1 and 2 in List III the Parliament or the State Legislature might have added as many new and novel offences as its fancy might have dictated and provided for any cruel penalty ranging from the maiming of the limbs to boiling to death in oil or repealed the whole of the Code of Criminal Procedure and provided for trial by battle or ordeal or for conviction by the verdict of a sorcerer or a soothsayer. Such law might have forbidden any speech criti- cising the Government, however mildly, or banned all public meetings or prohibited formation of all associations under penalty of law. Under Entry 33 of List I the Parliament might have made a law for acquiring anybody's properties for the purposes of the Union without any compensation and under Entry 36 in List III the State Legislature could do the same subject to the provisions of Entry 42 in List III which empowers the making of a law laying down principles for payment of compensation which might be anything above noth- ing. Under Entry 81 Parliament could have made any law restricting or even prohibiting inter-State migration so that a Bengali would not be able to move into and settle in Bihar or vice versa. It is needless to multiply instances of atrocious laws which Parliament or the State Legislature might have made under article 246 read with the different lists if there were nothing else in the Constitution. Our Legislatures, subject to the limitation of distribution of legislative powers, would have been as supreme in their respective legislative fields as the

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English Parliament is and has been. The Court in India, in such event, would have had to take the law duly made, inter- pret it and apply it. It would not have been entitled to utter a word as to the propriety of the particular law, although it might have shuddered at the monstrous atrocities of such law.

Our Constitution, however, has not accepted this abso- lute supremacy of our Parliament or the State Legislature. Thus by article 245 (1) the legislative power is definitely made "subject to the provisions of this Constitution." Turning to the Constitution, article 13 (2) provides as follows:

"The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."

This clearly puts a definite limitation on the wide legislative powers given by article 246. It is certainly within the competency of the Court to judge and declare whether there has been any contravention of this limitation. In this respect again the Court has supremacy over the Legislature.

From the provisions so far referred to, it clearly follows that there are two principal limitations to the legislative power of parliament, namely,--

(i) that the law must be within the legislative compe- tence of parliament as prescribed by article 246; and (ii) that such law must be subject to the pro-visions of the Constitution and must not take away or abridge the rights conferred by Part III.

There can be no question--and, indeed, the learned Attorney-General does not contend otherwise--that both these matters are justiciable and it is open to the Courts to decide whether Parliament has transgressed either of the limitations upon its legislative power.

Learned counsel for the petitioner does not say that the impugned Act is ultra vires the legislative powers of Parliament as prescribed by article 246. His contention is that the impugned Act is void

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because it takes away or abridges the fundamental rights of citizens conferred by Part III of the Constitution. It is, therefore, necessary to ascertain first the exact nature, extent and scope of the particular fundamental right insist- ed upon and then to see whether the impugned Act has taken away or, in any way, abridged the fundamental right so ascertained.

Civil rights of a person are generally divided into two classes, namely, the rights attached to the person (jus personarum) and the rights to things, i.e., property (jus rerum). Of the rights attached to the person, the first and foremost is the freedom of life, which means the right to live, i.e., the right that one's life shall not be taken away except under authority of law. Next to the freedom of life comes the freedom of the person, which means that one's body shall not be touched, violated, arrested or imprisoned and one's limbs shall not be injured or maimed except under authority of law. The truth of the matter is that the right to live and the freedom of the person are the primary rights attached to the person. If a man's person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can, within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his "own inclination may direct," reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business. These are attributes of the freedom of the person and are consequently rights attached to the person. It should be clearly borne in mind that these are not all the rights attached to the person. Besides them there are varieties of other rights which are also the attributes of the freedom of the person. All rights attached to the person are usually called personal liberties and they are too numerous to be enumerated. Some of these auxiliary rights are so important and fundamental that they are re- garded and valued as separate and independent rights apart from the freedom of the person.

Personal liberties may be compendiously summed up as the right to do as one pleases within the law. I 292

say within the law because liberty is not unbridled licence. It is what Edmund Burke called "regulated freedom." Said Montesquieu in Book III, Ch. 3, of his Spirit of the Laws: "In Governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow-citizens would enjoy the same power."

To the same effect are the following observations of Webster in his Works Vol. II, p. 393:

"Liberty is the creation of law, essentially different from that authorised licentiousness that trespasses on right. It is a legal and refined idea, the offspring of high civilization, which the savage never understands, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have. It is an error to suppose that liberty consists in a paucity of laws ......... The working of our complex system, full of checks and restraints on legislative, executive and judicial power is favourable to liberty and justice. These checks and restraints are so many safeguards set around individual rights and interests. That man is free who is protected from injury."

Therefore, putting restraint on the freedom of wrong doing of one person is really. securing the liberty of the intended victims. To curb the freedom of the saboteur of surreptitiously removing the fish plates from the railway lines is to ensure the safety and liberty of movement of the numerous innocent and unsuspecting passengers. Therefore, restraints on liberty should be judged not only subjectively as applied to a few individuals who come within their opera- tions but also objectively as securing the liberty of a far greater number of individuals. Social interest in individu- al

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liberty may well have to be subordinated to other greater social interests. If a law ensures and protects the greater social interests then such law will be a wholesome and beneficent law although it may infringe the liberty of some individuals, for it will enure for the greater liberty of the rest of the members of the society. At the same time, our liberty has also to be guarded against executive, legislative as well as judicial usurpation of powers and prerogatives. Subject to certain restraints on individuals and reasonable checks on the State every person has a varie- ty of personal liberties too numerous to be cataloged. As will be seen more fully hereafter, our Constitution has recognised personal liberties as fundamental rights. It has guaranteed some of them under article 19 (1) but put re- straints on them by clauses (2) to (6). It has put checks on the State's legislative powers by articles 21 and 22. It has by providing for preventive detention, recognised that individual liberty may be subordinated to the larger social interests.

Turning now to the Constitution I find that Part III is headed and deals with "Fundamental Rights" under seven heads, besides, "General" provisions (articles 12 and 13), namely "Right to Equality" (articles 14 to 18), "Right to Freedom" (articles 19 to 22), "Right against Exploitation" (articles 23 and 24), "Right to Freedom of Religion" (articles 25 to 28), "Cultural and Educational Rights" (articles 29 and 30), "Right to Property" (article 31), "Right to Constitutional Remedies" (articles 32 to 35). Under the heading "Right to Freedom" are grouped four arti- cles, 19 to 22. Article 19 (1) is in the following terms :--

" (1) All citizens shall have the right-

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms; (c) to form associations or unions;

(d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India;

(f) to acquire, hold and dispose of property; and 294

(g) to practise any profession, or to carry on any occupation, trade or business."

It will be noticed that of the seven rights protected by clause (1) of article 19, six of them, namely, (a), (b), (c), (d), (e) and (g) are what are said to be rights at- tached to the person (jus personarum). The remaining item, namely, (f) is the right to property (jus rerum). If there were nothing else in article 19 these rights would have been absolute rights and the protection given to them would have completely debarred parliament or any of the State Legisla- tures from making any law taking away or abridging any of those rights. But a perusal of article 19 makes it abun- dantly clear that none of the seven rights enumerated in clause (1) is an absolute right, for each of these rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in the several clauses (2) to (6) of that article. Those clauses save the power of the State to make laws imposing certain specified restrictions on the several rights. The nett result is that the unlimit- ed legislative power given by article 246 read with the different legislative lists in the Seventh Schedule is cut down by the provisions of article 19 and all laws made by the State with respect to these rights must, in order to be valid, observe these limitations. Whether any law has in fact transgressed these limitations is to be ascertained by the Court and if in its view the restrictions imposed by the law are greater than what is permitted by clauses (2) to (6) whichever is applicable the Court will declare the same to be unconstitutional and, therefore, void under article 13. Here again there is scope for the application of the "intel- lectual yardstick" of the Court. If, however, the Court finds, on scrutiny, that the law has not overstepped the constitutional limitations, the Court will have to uphold the law, whether it likes the law or not.

The first part of the argument is put broadly, namely, that personal liberty is generally guaranteed by the Consti- tution by article 19 (1) and that the Preventive Detention Act, 1950, has imposed unreasonable

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restrictions thereon in violation of the provisions of clauses (2) to (6) of that article. The very first question that arises, therefore, is as to whether the freedom of the person which is primarily and directly suspended or de- stroyed by preventive detention is at all governed by arti- cle 19 (1). If personal liberty as such is guaranteed by any of the sub-clauses of article 19 (1) then why has it also been protected by article 21 ? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19 (1) and article 21 gives only an additional protection by prescrib- ing the procedure according to which that right may be taken away. I am unable to accept this contention. If this argument were correct, then it would follow that our Consti- tution does not guarantee to any person, citizen or non- citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub-clauses of clause (1) of article 19. It is retorted in reply that no constitution or human laws can guarantee life which is the gift of God who alone can guar- antee and protect it. On a parity of reasoning no Constitu- tion or human laws can in that sense guarantee freedom of speech or free movement, for one may be struck dumb by disease or may lose the use of his legs by paralysis or as a result of amputation. Further, what has been called the procedural protection of article 21 would be an act of supererogation, for when God takes away one's life, whatever opportunity He may have had given to Adam to explain his conduct before sending him down, He is not likely in these degenerate-days to observe the requirements of notice or fair trial before any human tribunal said to be required by article 21. The fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection to life as a substantive right. So does article 31 of the Japanese Constitution of 1946. There is no reason why our Constitution should not do the same. The truth is that article 21 has given that protection to life as a substan- tive right and that, as will be seen hereafter, that article properly understood does not purport to prescribe any par- ticular procedure at all. The

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further astounding result of the argument of counsel for the petitioner will be that the citizen of India will have only the rights enumerated in article 19, clause (1) and no other right attached to his person. As I have already stated, besides the several rights mentioned in the several sub- clauses of article 19 (1) there are many other personal liberties which a free man, i.e., a man who has the freedom of his person, may exercise. Some of those other rights have been referred to by Harries C.J. of Calcutta in his unreported judgment in Miscellaneous Case No. 166 of 1950 (K.shitindra v. The Chief Secretary of West Bengal) while referring the case to a Full Bench in the following words :--

"It must be remembered that a free man has far more and wider rights than those stated in article 19 (1) of the Constitution. For example, a free man can eat what he likes subject to rationing laws, work as much as he likes or idle as much as he likes. He can drink anything he likes subject to the licensing laws and smoke and do a hundred and one things which are not included in article 19. If freedom of person was the result of article 19, then a free man would only have the seven rights mentioned in that article. But obviously the free man in India has far greater rights." I find myself in complete agreement with the learned Chief Justice on this point. If it were otherwise, the citizen's right to eat what he likes will be liable to be taken away by the executive fiat of the Civil Supply Depart- ment without the necessity of any rationing laws. The Government may enforce prohibition without any prohibition laws or licensing laws and so on. I cannot accept that our Constitution intended to give no protection to the bundle of rights which, together with the rights mentioned in sub- clauses (a) to (e) and (g) make up personal liberty. In- deed, I regard it as a merit of our Constitution that it does not attempt to enumerate exhaustively all the personal rights but uses the compendious expression "personal liber- ty" in' article 21, and protects all of them. It is pointed out that in the original draft the word "liberty" only was used as in the American

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Constitution but the Drafting Committee added the word "personal" to make it clear that what was being protected by what is now article 21 was not what had already been pro- tected by what is now article 19. If it were permissible to refer to the Drafting Committee's report, it would be anoth- er answer to the contentions of learned counsel for the petitioner that personal liberty as a substantive right was protected by article 19. I do not, however, desire to base my judgment on the Drafting Committee's report and I express no opinion as to its admissibility. Whatever the intentions of the Drafting Committee might have been, the Constitution as finally passed has in article 21 used the words "personal liberty" which have a definite connotation in law as I have explained. It does not mean only liberty of the person but it means liberty or the rights attached to the person (jus personarum). The expressions "freedom of life" or "personal liberty" are not to be found in article 19 and it is strain- ing the language of article 19 to squeeze in personal liber- ty into that article. In any case the right to life cannot be read into article 19.

Article 19 being confined, in its operation, to citizens only, a non-citizen will have no protection for his life and personal liberty except what has been called the procedural protection of article 21. If there be no substantive right what will the procedure protect ? I recognise that it is not imperative that a foreigner should have the same privileges as are given to a citizen, but if article 21 is construed in the way I have suggested even a foreigner will have equal protection for his life and personal liberty before the laws of our country under our Constitution. I am unable, there- fore, for all the reasons given above, to agree that person- al liberties are the result of article 19 or that that article purports to protect all of them.

It is next urged that the expression "personal liberty" is synonymous with the right to move freely and, therefore, comes directly under article 19 (1) (d). Reference is made to the unreported dissenting judgment of Sen J. of Calcutta in Miscellaneous Case No. 166 of 1950 while referring that case to a Full Bench.

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In his judgment Sen J. quoted the following passage from Blackstone's Commentaries :--

"Next to personal security the law of :England regards, asserts and preserves, the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law." (Page 73 of George Chase's Edition (4th Edition) of Blackstone, Book I, Chapter I.

On the authority of the above passage the learned Judge concluded that personal liberty came within article 19 (1)(d). I am unable to agree with the learned Judge's con- clusion. On a perusal of Chapter I of Book I of Black- stone's Commentaries it will appear that the]earned commen- tator divided the rights attached to the person (jus person- arum) into two classes, namely, "personal security" and "personal liberty." Under the head "personal security" Blackstone included several rights, namely, the rights to' life, limb, body, health and reputation, and under the head "personal liberty" he placed only the right of free move- ment. He first dealt with the several rights classified by him under the head "personal security" and then proceeded to say that next to those rights came personal liberty which according to his classification consisted only in the right of free locomotion. There is no reason to suppose that in article 21 of our Constitution the expression "personal liberty" has been used in the restricted sense in which Blackstone used it in his Commentaries. If "personal liber- ty" in article 21 were synonymous with the right to move freely which is mentioned in article 19 (1) (d), then the astounding result will be that only the last mentioned right has what has been called the procedural protection of arti- cle 21 but none of the other rights in the other sub-clauses of article 19 (1) has any procedural protection at all. According to learned counsel for the petitioner the proce- dure required by article 21 consists of notice and a right of hearing before an impartial tribunal. Therefore, accord- ing to him, a man's right of movement cannot be taken away without giving him notice and a fair trial

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before an impartial tribunal but he may be deprived of his freedom of speech or his property or any of his other rights without the formality of any procedure at all. The proposi- tion has only to be stated to be rejected. In my judgment, article '19 protects some of the important attributes of personal liberty as independent rights and the expression "personal liberty" has been 'used in article 21 as a compen- dious term including within its meaning all the varieties of rights which go to make up the personal liberties of men. Learned counsel for the petitioner next contends that personal liberty undoubtedly means or includes the freedom of the person and the pith and substance of the freedom of the person is right to move about freely and consequently a preventive detention law which destroys or suspends the freedom of the person must inevitably destroy or suspend the right of free movement and must necessarily offend against the protection given to the citizen by article 19 (1)(d) unless it satisfies the test of reasonableness laid down in clause (5). The argument is attractive and requires serious consideration as to the exact purpose and scope of sub- clause (d) of article 19 (1).

There are indications in the very language of article 19 (1) (d) itself that its purpose is to protect not the gener- al right of free movement which emanates from the freedom of the person but only a specific and 'limited aspect of it, namely, the special right of a free citizen of India to move freely throughout the Indian territory, i.e., from one State to another within the Union. In other words, it guarantees, for example, that a free Indian citizen ordinarily residing in the State of West Bengal will be free to move from West Bengal to Bihar or to reside and settle in Madras or the Punjab without any let or hindrance other than as provided in clause (5). It is this special right of movement of the Indian citizen in this specific sense and for this particu- lar purpose which is protected by article 19 (1) (d). It is argued on the authority of a decision of a Special Bench of the Calcutta High Court presided over by Sen J. in Sunil Kumar v. The Chief Secretary of West Bengal (1) that the words "through-. out the territory of India" occurring in that sub-clause only indicate that our Constitution does not guarantee to its citizens the right of free movement in or into foreign territory and that those words have been added to save passport restrictions. I am unable to accept this interpre- tation. Our Constitution cannot possibly give to any of its citizens any right of free movement in a foreign country and it was wholly superfluous to specifically indicate this in the Constitution, for that would have gone without saying. The words "throughout the territory of India" are not used in connection with most of the other sub-clauses of clause (1) of article 19. Does such omission indicate that our Constitution guarantees to its citizens freedom of speech and expression, say, in Pakistan ? Does it guarantee to. its citizens a right to assemble or to form associations or unions in a foreign territory ? Clearly not. Therefore, it was not necessary to use those words in sub-clause (d) to indicate that free movement in foreign countries was not being guaranteed. It is said that by the use of those words the Constitution makes it clear that no1 guarantee was being given to any citizen with regard to emigration from India without a passport and that the freedom of movement was restricted within the territory of India. Does the omission of those words from article 19 (1) (a) indicate that the citizen of India has been guaranteed such freedom of speech and expression as will enable him to set up a broadcasting station and broadcast his views and expressions to foreign lands without a licences ? Clearly not. Dropping this line of argument and adopting a totally new line of argument it is said that by the use of the words "throughout the territory of India" the Constitution indicates that the widest right of free movement that it could possibly give to its citizens has been given. Does. then, the omission of those words from the other subclauses indicate that the Constitution has kept back some parts of those rights even beyond the limits of the qualifying clauses that follow ? Do not those other rights prevail throughout the Indian territory ?