T.M Arumugam v. The State Oe Madras & Another.

[Govinda Menon, J.]

The petitioner applies under Art. 226 of the Constitution of India, for an order that he should be released from the custody, in which he finds himself, as result of the order of the State, under the Preventive Detention Act, Act IV of 1950.

By the order dated 1—4—1948 under S. 2 (1) (a) of the Madras Act of 1947, the petitioner was ordered to be detained by the Provincial Government, because his being at large was; in the opinion of the Provincial Government, prejudicial to public safety and the maintenance of public order. Though the order of detention was passed, the petitioner never surrendered himself to the police and all efforts to apprehend him proved unsuccessful, as the petitioner evaded arrest for a long time. As a result, action was taken under Ss. 87 and 88 of the Criminal Procedure Code and the petitioner was declared as a proclaimed offender. Eventually he was arrested by the Mathurai Police on 29-4-1949 under S. 54 of the Criminal Procedure Code, brought to Madras and produced before the Commissioner of Police, who committed him to the Penitentiary, Madras, on the same day. Subsequently he was transferred to the Vellore Jail on 13-8—1949 by the Order of the Inspector-General of Prisons. The order under S. 2 (1) (a) of the Preventive Detention Act was served on him on 2—3—1950 and he is now detained in the Vellore Jail in pursuance of that order.

It is stated in the grounds of detention that the petitioner is an ardent communist and full time non-paid party worker; and that he was the President of the Tamil Nadu Press Workers' Federation and the keeper of the “Nehru Press”, Perambur. The said press under his active connivance and covert activities has always undertaken to print Communist Party propaganda literature for circulation. There are various other activities of a subversive and violent nature attributed to the petitioner and towards the end of the grounds of detention, it is stated that the Communist Party is an illegal organisation and the underground Communists all over the State are still indulging in subversive activities such as loot, arson, murder, throwing of bombs etc. It goes on to add, that the general situation was, therefore, unsettled and the recent underground circulars and wall-posters by the Communists indicate their determination to take advantage of the prevailing conditions to incite labourers and working classes, to cause damage to public institutions and attack police stations and prisons and to try to obtain power by violence. Recent literature seized from the petitioner also indicates that the party is collecting weapons including bombs and revolvers for these occasions. As the petitioner is an active member of this party, according to the Government of the State, in order to prevent acts which are likely to undermine the public safety or the maintenance of public order the State considers that the petitioner should be detained.

The petitioner in his affidavit before this court denied most of these allegations, but he does not state that he is not a, member of the Communist Party as stated in the grounds of detention. The question is, whether under the circumstances, the detention of the the petitioner is justified under the provisions of the Preventive Detention Act of 1950. In Machindar Shivaji v. The King [1950] A.I.R.F.C 129 at page 131 Patanjali Sastri, J. delivering the Judgment of the Federal Court in an application for a writ of habeas corpus observed as follows :—

“It was said that, the Communist Party not having been banned in the Province, the appellant's alleged membership of that party, even if true, could not, to the absence of any allegation of acts or conduct on his part suggesting that he was acting or was likely to act in a manner prejudicial to public safety, be regarded as a ground for satisfaction under S. 2 (1) (a). We cannot accede to this contention. While mere belief in or acceptance of any politicial ideology may not be a ground for detention under the Act, affiliation to a party which is alleged to be spreading its “doctrine of violence rendering life and property insecure and trying to seize power by violence” may, in certain circumstances, lead to an inference that the person concerned is likely to act in a manner prejudicial to public safety, order or tranquillity. The fact that the party had not been outlawed is immaterial, that being a matter of expediency.”

These observations are of great relevancy to the case of the petitioner before us and we are of opinion that this decision should be followed and if this decision is to be followed the petitioner's application cannot be sustained.

But Mr. N.S Mani, the learned advocate for the petitioner, strenuously contends that the decision adverted to above, having been passed on 20-1-1950, is no longer a binding authority on us, in view of the circumstance that India, proclaimed itself an independent sovereign republic on 26-1-1950, and therefore whatever might have been the binding nature of the decision of the Federal Court on the High Courts prior to 26-1-1950, subsequent to that date the decision of the Federal Court would not be a binding authority on us. He contends that such judgments can only have a persuasive application and not any binding force. According to the learned advocate, the Federal Court became abolished on 26-1-1950, and a new court, the present Supreme Court came into existence and the High Courts, which had already been existing in the various provinces of India, though they have continued as High Courts in the States, are not bound by the decisions of the Federal Court prior to the date of the promulgation of the Republic of India. He elaborates his argument by stating that under Art. 141 of the Constitution of India the law declared by the Supreme Court shall be binding on all the courts within the territory of India. There is no provision that the decision of the Federal Court of India shall be binding on the courts within the territory of India after the coming into existence of the Constitution of India. The other argument of the learned advocate is that if we follow the dicta of the Federal Court extracted above, then we would be following a decision which deprives the petitioner of the fundemental rights conferred upon him in Part III of the Constitution. And lastly it is argued that there is no principle of stare decisis in criminal cases and it this decision is not binding, we have to examine the matter afresh in the context of the circumstances existing at present and find whether the petitioner being at large is injurious to public safety or maintenance of public order.

At the very outset we may say that even if the matter were res integra, we would, on a consideration of the grounds set forth in the memorandum of the State Government for detaining him, come to the conclusion that the State Government is justified, in invoking S. 2 (1) (a) of the Preventive Detention Act against the petitioner. But since the question of law has been elaborately argued before us, we shall give our opinion on the point.

That the present Supreme Court, is a new court cannot be disputed, because it is a court created under the Indian Constitution framed by the representatives of the people of India duly elected to a Constituent Assembly to frame a proper Constitution for the country. There was no Supreme Court prior to 26—1-1950 and there could have been no Supreme Court, with all the plenary, as well as extraordinary powers, which the present Supreme Court has, so long as India was governed by the Government of India Act, 1935. In S.P.R.M Ramaswami Chettiar v. S.P.R.M.S.P Ramanathan Chettiar [1950] 2 M.L.J 400 a Bench of this Court has observed that the Supreme Court is a new court and to that extent we agree with the opinion expressed by the learned Judges. But the question is whether the law declared by the Federal Court prior to 26-1—1950 can be held to be binding on the High Courts after 26—1—1950. Our attention has been drawn by the learned advocate for the petitioner to two English cases, namely, Webb v. Outrim [1907] A.C 81 and Performing Right Society Limited v. Urban District Council of Bray [1930] A.C 377 and in the latter case the observations of Lord Sankey at pages 391 and 394 were stressed. We are not satisfied that any observations of their Lordships of the Judicial Committee in Webb v. Outrim have any application so far as the facts of the present case are concerned. It is unnecessary for us to advert at any length to that case at all. In Performing Right Society Limited v. Urban District Council of Bray at pages 391 and 394 there are observations by Lord Sankey regarding the power of the Privy Council after the promulgation of the Irish Free State, pursuant to the treaty between England and Ireland. Even here we do not find any observations regarding the binding nature of a prior decision of the Privy Council or the Irish Supreme Court upon a court that came into existence after the promulgation of the Irish Free State.

So far as courts of co-ordinate jurisdiction and the decisions of Benches of this court are concerned it has been held in Gundavarapu Seshmma v. Kornapati Venkatanarasimharao [1940] M.W.N 393 (Full Bench) that one Division Bench should ordinarily follow the previous Bench decision, unless the subsequent Bench comes to the conclusion that the previous Bench decision is wrong on any principle or because of any subsequent statute or because of any observations of the Judicial Committee contained in any subsequent case. But that is not the case here. The question is how far we should be bound by the previous decisions of the Federal Court. We shall now advert to the English decisions which have been found out by us.

Indeed, so far as England is concerned, it is well settled that the decision of the House of Lords in a particular case on a point of law is binding in future, unless that decision is held to be wrong by an act of Parliament. In The London Street Tramways Company Limited v. The London County Council [1898] A.C 375 the House of Lords laid down that a decision of the House of Lords on a question of law is conclusive and binds the House in subsequent cases. An erroneous decision can be set right only by an Act of Parliament. At page 379 in the speech of Lord Halsbury the following passage occurs:

“My Lords, for my own part I am prepared to say that I adhere in terms to what has been said by Lord Camball and assented to by Lord Wensleydale, Lord Cranworth, Lord Chelmsford and others, that a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it was res integra and could be reargued, and so the House be asked to revise its own decision. That is a principle which has been, I believe, without any real decisions to the contrary, established now for some centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided.”

There are other observations of similar nature at page 380 of the report. In Young v. Bristol Aeroplane Company Limited [1944] 2 All Eng Rep 293; 1944 K.B 718 a Full Court of Appeal came to the conclusion that a full court of the Court of Appeal has no greater powers than any division of the court and that the Court of Appeal is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction with three exceptions; (a) it may choose between two conflicting decisions of its own; (b) it must refuse to follow a decision of its own, which, though not expressly overruled, is inconsistent with a decision of the House of Lords; (c) it is not bound to follow a decision of its own given per incuriam. Similarly a Divisional Court in England is bound to follow its own decision in previous cases on a point of law. It must, as a general rule, follow a previous decision and should, therefore, avoid conflict of authority and lack of finality. Vide Huddersfield Police Authority v. Watson [1947] 2 All Eng Rep 193; 1947 K.B 842. We need not multiply authorities, though an interesting discussion on the point can be seen regarding the binding nature of a Divisional Court on a subsequent court in Police Authority for Huddersfied v. Watson. That judgment followed the decision in Young v. Bristol Aeroplane Company Limited. There have been conflicting decisions regarding the applicability about the binding nature of a decision of a Judge sitting in King's Bench upon another judge sitting alone. In Papworth v. Battersea Borough Council [1915] 84 L.J.K.B 1881 at 1885 Scrutton J. agreeing with Horeidge J expressed an opinion which has been later not shared by du Parcq J. in Green v. Berliner and others [1936] 1 All Eng. Rep. 199. It is also clear in England that the law laid down in undefended cases are sometimes not binding in succeeding cases. Vide Dodd v. Dodd [1906] Probate 189 and also Pauline White v. S.W White [1948] 2 All Eng. Rep. 151. It is well known that a decision in war pension cases has no binding authority. Vide Minister of Pensions v. Higham [1948] 1 All Eng. Rep. 863. So far as the Privy Council is concerned, as we understood, its decisions stand on the same footing as those of the House of Lords. But there have been instances where a judgment delivered by a smaller number of members constituting the Judicial Committee has been held to be not binding when the Board consists of larger number of members. See the observations in Brij Narain v. Mangal Prasad [1924] M.W.N 68; I.L.R 46 All. 95 commenting on the decision in Sahu Ram's case I.L.R 39 All. 437. But that is an exception and not a rule.

What we have discussed above relates to the binding nature of the previous decisions of courts of co-ordinated or equal jurisdiction in a country where there has been no change of Government. No decision of any court has been brought to our notice where, after the status of the country has been changed, the previous decisions have been held to be binding on the subsequent courts. Therefore the matter is res integra and we have to be guided mainly, if not solely, by the provisions of the Constitution of India. But before we discuss the provisions of the Constitution it is necessary to refer to a very recent case which the learned counsel for the petitioner invited our attention to and that is Rex v. Taylor [1950] 2 All Eng. Rep. 170. Lord Goddard in delivering the judgment of the court of Criminal Appeal observed that although in civil cases under the rule of stare decisis a court of appeal considered itself bound by its own decisions, the same rule did not apply in criminal cases where the liberty of the individual was concerned and, consequently, if, ‘in the opinion of the full court, the law has been misunderstood in an earlier case, the court would reconsider the matter. Reconsidering the earlier decision in Rex v. Treanor [1939] All. Eng. Rep. 330 the learned Judge held that the law laid down in the previous case was wrong. At page 172 the following observations occur:

“I should like to say one word about the reconsideration of a case by this court. A court of appeal usually considers itself bound by its own decisions or by decisions of a court, of co-ordinate jurisdiction. For instance, the Court of Appeal in civil matters considers itself bound by its own decisions or by the decisions of the Exchequer Chamber, and, as is well known, the House of Lords always considers itself bound by its own decisions. In civil matters it is essential in order to preserve the rule of stare decisis that that should be so, but this court has to deal with the liberty of the subject and if, on reconsideration, in the opinion of a full court, the law has been either mis-applied or misunderstood and a man has been sentenced for an offence, it will be the duty of the court to consider whether he has been properly convicted. The practice observed in civil cases ought not to be applied in such a case, and in the present case the full court of seven judges is unanimously of opinion that Rex v. Treanor was wrongly decided.”

The learned advocate for the petitioner contends that we should hold that the decision of the Federal Court cannot be said to be a decision of superior court, but could only be at the most, one of co-ordinate jurisdiction and therefore following the observations of Lord Goddard it is open to us to consider the correctness or otherwise of those observations. He also invited our attention to Beal's Cardinal Rules of Legal Interpretation at page 23 (3rd edition).

Let us now consider the provisions of the Constitution. The second part of sub-clause (2) of Art. 374 is to the effect that judgments and orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court. Mark the words “force and effect”. In the New English Dictionary, the meaning of the word “force” is given as “strength or power” and when dealing with the expression “in force,” the interpretation is “operative or binding at the time” so that if we give that meaning to the word “force”, it follows that the decisions of the Federal Court delivered before the commencement of the Constitution shall be binding and have the same effect as if they had been delivered or made by the Supreme Court. A combined reading of Arts. 141 and 374 (2) can lead us only to one conclusion and that is that the decisions of the Federal Court given prior to the 26th January 1950 shall be binding on all the Courts within the territory of India. If the second part of sub-cl. (2) of Art. 374 makes the decisions of the Federal Court of the same binding nature as if they had been passed by the Supreme Court and if the decisions of the Supreme Court shall be binding on all the Courts within the territory of India then it necessarily follows that the decisions on points of law passed by the Federal Court will be binding on the High Courts. In this connection it will be useful to compare and contrast the provisions of Arts. 124 and 214. By Art. 124 a Supreme Court is established and by Art. 214 the High Courts are also established. In Art. 214 (2) it is stated that for the purposes of the Constitution the High Court exercising jurisdiction in relation to any Province immediately before the commencement of this Constitution shall he deemed to be the High Court for the corresponding State. There is no similar provision in Art. 124, so that so far as High Courts are concerned the existing High Courts are continuations of the old High Courts that had been functioning prior to the 26th January 1950, whereas in the case of the Supreme Court, the Federal Court cannot be said to continue. The law laid down by the Federal Court will be binding on all the courts in India as if the same had been declared by the Supreme Court only as a result of the reading of Arts. 374 (2) and 141.

Though the Supreme Court is a new Court as opposed to the High Courts, under Art. 374(1) we find that the judges of the Federal Court holding office immediately before the commencement of Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the Supreme Court so that though the legal status of India has changed and though we are now a Sovereign Independent Republic still it cannot be said that in matters of legal procedure we should not continue the same laws and practice which had been in force prior to 26th January 1950.

It is argued by learned counsel for the petitioner that Art. 374 (2) can only be applied as between the parties. We are not prepared to put such a narrow interpretation upon that clause.

Mr. Mani further contended that if we are to follow the dictum of the Federal Court we would be contravening the fundamental rights especially Arts. 19 and 21. If, in our opinion, Art. 141 enjoins upon us to follow the law laid down by the Federal Court then we are unable to see how following one provision of the Constitution can be said to offend against another provision of the Constitution. Even otherwise there is no question of any fundamental rights involved when the Preventive Detention Act itself, except S. 14. has been declared to be intra vires the Constitution by the Supreme Court.

In view of the reasons given by us it seems to us that we are bound by the observations of the Federal Court in Machinder Shivaji v. The King. This petition is therefore dismissed.

Leave to appeal to Supreme Court granted.

N.T.R