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

judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore arise from the very nature of the function intended to be performed, it need not be shown to be super- ,added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a Person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."

In England, the rule was thus expressed by Byles J. in Cooper v. Wandsworth Board of Works(1)

"The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before be was called upon to make his defence. "Adam (says God), "where art thou ? Hast thou ? not eaten of the tree whereof I commanded thee that thou shouldest not eat And the same question was put to Eve also."

I find no difficulty whatsoever in holding, on the strength of these well recognised principles, that an order impounding a passport must be made quasi-judicially. This was not done in the case before us.

In my estimation, the findings arrived at by my learned brethren after an examination of the facts of the case before us, with which I concur, indicate that it cannot be said that a good enough reason has been shown to exist for impounding the passport of the petitioner by the order dated 7th July, 1977. Furthermore, the petitioner has bad no opportunity of showing that the ground for impounding it finally given in this Court either does not exist or has no bearing on public interest or that public interest cannot be better served in some other manner. Therefore, speaking for myself, I would quash the order and direct the opposite parties to give an opportunity to the petitioner to show- cause against any proposed action on such grounds as may be available.

I am not satisfied that there were present any such pressing grounds with regard to the petitioner before us that the immediate action of impounding her passport was called for. Furthermore, the rather cavalier fashion in which disclosure of any reason for impounding her passport was denied to her, despite the fact that the only reason said to exist the possibility of her being called to give evidence before a commission of inquiry and stated in the counter-affidavit filed in this Court, is not such as to be reasonably deemed to necessitate, its concealment in

(1) 1863 (14) C.B. (N.S.) 180.

public interest, may indicate the existence of some undue prejudice against the petitioner. She has to be protected against even the appearance of such prejudice or bias. It appears to me that even executive authorities when taking administrative action which involves any deprivations of or restrictions on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness or unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice.

The attitude adopted by the Attorney General however, shows that Passport authorities realize fully that the petitioner's case has not been justly or reasonably dealt with. As the undertaking given by the Attorney General amounts to an offer to deal with it justly and fairly after informing the petitioner of any ground that may exist for impounding her passport, it seems that no further action by this Court may be necessary. In view, however, of what is practically an admission that the order actually passed on 7th July, 1977, is neither fair nor procedurally proper, I would, speaking for myself, quash this order and direct the return of the impounded passport to the petitioner. I also think that the petitioner is entitled to her costs. CHANDRACHUD, J.-The petitioner's passport dated June 1, 1976 having been impounded "in public interest" by an order dated July 2, 1977 and the Government of India having declined "in the interest of general public" to furnish to her the reasons. for its decision, she has filed this writ petition under article 32 of the Constitution to challenge that order. The challenge is founded on the following grounds : (1) To the extent to which section 10(3) (c) of the Passport Act, 1967 authorises the passport authority to impound a passport "in the interests of the general public", it is violative of article 14 of the Constitution since it confers vague and undefined power on the passport authority;

(2) Section 10 (3) (c) is void as conferring an arbitrary power since it does not provide for a hearing to the holder of the passport before the passport is, impounded;

(3) Section 10(3)(c) is violative of article 21 of the Constitution since it does not prescribe 'procedure' within the meaning of that article and since the procedure which it prescribes is arbitrary and unreasonable; and (4) Section 10 (3)(c) offends against articles 19(1)(a) and 19 (1 ) (g) since it permits restrictions to be imposed on the rights guaranteed by these articles even though such restrictions cannot be imposed under articles 19(2) and 19(6).