Untwalla, J.:— As the main point of importance was common to all these four cases, they were heard together and are being disposed of by this judgment. After discussing the said point at the outset, I shall proceed to deal with the facts of each case and the special points, if any.
2. The petitioners in all these cases are non-gazetted employees serving in the various departments of the State of Bihar. In August 1963, by orders of the State Government made under R. 30(1)(b) of the Defence of India Rules, 1962, hereinafter called the Rules, they were arrested and detained in prison. The common ground on which they are challenging the orders of detention is that of mala fide. The petitioners plead that they are office-bearers and members of the Bihar State Non-gazetted Employees Federation and the Patna Secretariat Ministerial Officers Association, and they have been taking active part in the various activities of the said Organisations for ventilating and redress of the grievances of the non-gazetted employees. During the course of the lawful and peaceful agitations which they have thus carried on, they have incurred the displeasure of Shri K.B Sahay, the Chief Minister of Bihar, and other officers of the Government. The Chief Minister who also holds the portfolio of the Political (Special) Department in the Government of Bihar, has been responsible for making the impugned orders and in exercising the powers of the State Government maliciously in bad faith and with ulterior motives, because of his personal animosity, anger and grudge which he bears against the petitioners for their activities aforesaid. Their case, inter alia, is that the orders so made in purported exercise of the power in bad faith are ultra vires and without jurisdiction and the detention of the petitioners was illegal. It may be stated here that all the petitioners were granted interim bail in the last week of November or the first week of December 1965, by a Bench of this Court consisting of Narasimham, C.J, and S.N.P Singh, J. The State of Bihar filed Criminal Appeal 200 of 1965 in the Supreme Court against the order granting bail in Cr. W.J.C 126 of 1985. By a judgment delivered on January 17, 1966, the Supreme Court has held that when the High Court is satisfied that prima facie there is something patently illegal in the order of detention, an order for bail would be passed, but the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu is circumscribed in a case of detention under R. 30 of the Rules by inexorable considerations which are relevant to the proceedings of this character. All the four petitioners thus having been enlarged on bail are outside jail for more than two months. In these circumstances, in the event of dismissal of their petitions, it will be a matter for consideration of the State Government whether the petitioners should be detained and sent back to jail in pursuance of the impugned orders of detention passed long ago without considering their cases afresh or without making fresh orders of detention, if necessary.
3. On September 8, 1982, the Chinese aggressively attacked the northern border of India and that constituted a threat to the security of this, country. On October 26, 1962, the President issued a proclamation under Article 352 of the Constitution declaring that a grave emergency existed whereby the security or India was threatened by external aggression. An Ordinance which has been eventually substituted by the Defence of India Act, 1992 (No. 51 of 1962) hereinafter called the Act, was promulgated on October 26 and was amended by Ordinance No. 6 of 1962 on November 3, 1962.
4. On this day, the President issued the Order under Article 359(1) suspending the rights of citizens to move any Court for enforcement of the rights conferred by Articles 21 and 22 of the Constitution for the period during which the promulgation of emergency issued on October 26 would be in fores. This Order was amended on November 11, 1962 and Article 14 was also included within its field, thus suspending the rights of citizens to move any Court for the enforcement of rights conferred by Articles 14, 21 and 22 of the Constitution. On November 6, 1962, the Rules framed by the Central Government were published. Prior to coming into force of the Rules, the law of preventive detention was engrafted in Preventive Detention Act, 1950 (No. 4 of 1950). Section 7 of the Act provides—
“(1) Where a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
(2) Nothing in sub-s. (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose”.
5. The provisions of S. 7 are there in accordance with the fundamental right guaranteed under Article 22 of the Constitution. It will be convenient here to quote a few provisions of Article 22 which say—
“(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.
(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.
(6) Nothing in Cl. (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”.
6. Provisions similar to the ones found in Act 4 of 1950 were there in the law of preventive detention in England during the two great world wars of 1914-18 and 1939-45. Regulation 14B made under the Defence of the Realm (Consolidation) Act, 1914 and the Defence (General) Regulations, 1939, Regu. 18B framed under the Emergency Powers (Defence) Act, 1939, provided for the law of preventive detention under certain circumstances.
7. In India during the period of Second World War, a power of detention similar to the one found in R. 30 of the Rules was given to the Central Government and the Provincial Government in R. 26 of the Defence of India Rules, 1939; but that was also without any safeguard of communicating the grounds of detention to the detenu concerned, the point of difference, however, being that in the Government of India Act, 1935 there were no provisions conferring fundamental rights on citizens of India like the ones provided in Part III of our present Constitution in which Article 22 occurs. In Rex v. Halliday, 1917 AC 260, Lord Dunedin said in his speech at p. 271—
“That preventive measures in the shape of internment of persons likely to assist the enemy may be necessary under the circumstances of a war like the present is really an obvious consideration. Parliament has in my judgment, in order to secure this and kindred objects, risked the chance of abuse which will always be theoretically present when absolute powers in general terms are delegated to an executive body; and has thought the restriction of the powers to the period of the duration of the war to be a sufficient safeguard”
8. Tucker, J., as he then was, considering the question with reference to Regu. 18B as to whether the Court had jurisdiction to enquire into the merits of a particular detention, observed in Stuart v. Anderson and Morrison, (1941) 2 All ER 665, at p. 675—
“I think that this case, taking the material as a whole, quite fails to support the submission of counsel for the plaintiff with regard to this matter. I do not desire to say anything more about the facts of the case, and I should have desired not to mention them at all, because I think that it is very undesirable in cases of this kind, where the Court can of necessity know only part of the facts, that it should go into the merits at all. I would not have done so had it not been necessary to deal with the submissions of counsel for the plaintiff. One of the difficulties of seeing to invoke the jurisdiction of this Court knows only a fraction of the case. This arises from the attitude taken up by the Home Secretary in these cases, which the Court of appeal has held is the proper attitude, namely, his refusal to put before the Court the material upon which he came to this conclusion in the matters”
9. These observations were quoted with approval by the Court of appeal in the judgment of Scott, L.J, in R. v. Home Secretary; Ex parte Greene, (1941) 3 All ER 104 at p. 113. In the celebrated case of Liversidge v. Anderson, (1941) 3 All ER 338, the appellant who had been detained in prison under the Defence (General) Regulations Regn. 18B, claimed a declaration that his detention was unlawful and damages for false imprisonment. The Home Secretary admitted that he had ordered detention under the regulation. The appellant thereupon asked for particulars of grounds on which the first respondent, namely, the Home Secretary who had passed the order of detention had reasonable cause to believe the appellant to be a person of hostile association, and of the grounds on which the first respondent had reasonable cause to believe that, by reason of such associations, it was necessary to exercise control over the appellant. The majority decision of the House of Lords was that such particulars could be ordered only if the onus was upon the respondents to prove the various facts which justified the making of the order for detention and that being not so, no order for particulars ought to be made.
10. I am conscious that this decision has been the subject of severe criticism at the Hands of reputed Jurists, and in some other decisions many thought that the dissenting judgment of Lord Atkin was the correct one; but that was in regard to the special words in Regu. 18B to the effect—
“If the Secretary had reasonable cause to believe.”
11. As respects our law of preventive detention engrafted either in the Preventive Detention Act or the Rules, the controversy raised as to the interpretation of the word? in the aforesaid Regu. 18B does not create any difficulty because it is well settled by now that a detention order is made on the subjective satisfaction of the detaining authority and the facts on which it is based are not justiciable. What I want to emphasise, however, with reference to the English decisions is that the Courts in England felt hampered to decide the question of reasonableness or justiciability of an order of detention even though grounds of detention had to be communicated to the detenu in order to enable him to make his representation. But in all these decisions a ridder has been added that it would be so if the Secretary of State acts in good faith. If the bona fides of the detaining authority were attacked, a different position might arise.
12. In various other authorities of the Courts in England in regard to the emergency legislations as also others, it has been pointed out that no Court could interfere with the discretion exercised by the executive if bona fide exercised [vide Carltona, Ltd. v. Commissioners of Works, (1943) 2 All ER 560 and Demetriades v. Glassgow Corporation, (1951) 1 All ER 457]. In Mayor & co. of Westminster v. London and North Western Rly. Co., 1905 AC 426, Lord Macnaghten observed in his speech in the House of Lords that a public body invested with statutory powers must take care not to exceed or abuse its powers, that it must keep within the limits of the authority committed to it, and it must act in good faith. In this case, a charge of bad faith was levelled. Lora Macnaghten has said at p. 432—
“…That is a very serious charge. It is not enough to shew that the corporation contemplated that the public might use the sub-way as a means of crossing the street. That was an obvious possibility. It cannot be otherwise if you have an entrance on each side and the communication is not interrupted by a wall or a barrier of some sort. In order to make out a case of bad faith it must be shown that the corporation constructed this sub-way as a means of crossing the street under colour and pretence of providing public conveniences which were not really wanted at that particular ???
13. That is to say, a charge of bad faith being a very serious charge cannot be decided in vacuum. It has to be decided with reference to the merits of the order by taking into confederation the grounds and facts which form its basis. Mere proof of animosity, anger or grudge of the detaining authority against the person detained will not necessarily lead to the conclusion that the power has been exercised in bad faith. Suspicion there will be, but mere suspicion is not enough. Even if the facts constituting the inimical attitude of the detaining authority are proved, can it be said that it necessarily leads to the conclusion that the power has been exercised mala fide because of that enmity unless the order itself is examined on merits. If after examination of the order and the facts forming its basis, it is found that the order is perverse, unreasonable and unjustified, a finding which by itself would not have entitled the court to declare the order bad would, however, enable it to do so if coupled with the finding of animus of the detaining authority. Unless the two are out in juxtaposition, neither by itself in a case of this kind is sufficient to enable the court to declare the order bad. The difficulty then arises whether the courts can ask for, and enter into, the merits of the grounds and facts forming the basis of the impugned order of detention.
14. The rules do not provide for any communication of the grounds of detention nor for supplying the facts which constitute the basis of the subjective satisfaction of the detaining authority. Such a law, on the face of it, violates the fundamental rights guaranteed to the citizens under Article 22 of the Constitution. Yet, as pointed out by the Supreme Court in Makhan Singh Tarsikka v. State Of Punjab ., AIR 1964 SC 381, the courts cannot declare it unconstitutional as the rights of citizens to move any court for the enforcement of such right have been suspended by the order issued by the President under Article 359(1) of the Constitution. That being so, under the law, as it is, the detenu cannot ask the detaining authority to supply him the grounds and facts forming the basis of the detention order against him. If the detenu is debarred under the order of the President from enforcing his fundamental right, can he ask for the aid of the court for doing the same thing in an indirect way? Is it permissible to take the view that when he alleges acts of bad faith on the part of the detaining authority, the facts leading to its satisfaction become justiciable even though they are not so otherwise?
15. To my mind, in the present set up, the answers to these questions must be given in the negative. It may be lamentable that such is or has got to be our law during the period of Emergency, granting absolute power to the detaining authority to interfere with, and encroach upon, the liberties of the citizens. On the other hand, it may well be that conditions in our Country, during the time of Emergency, require the granting of the absolute power to the executive. That's not a matter, for a court, to decide; it is a matter within the realm of decision of the people and their representatives. Says Gajendragadkar, J., as he then was, at p. 404 in Makhan Singh's case, AIR 1984 SC 381:
“But we must remember that the democratic faith in the inviolable character of individual liberty and freedom and the majesty of law which sustains it must ultimately be governed by the Constitution itself. The Constitution is the law of laws; the paramount and supreme law of the country.”
16. It would be noticed that in England there being no written Constitution, the Regulations dealing with preventive detention provided safeguards to the persons detained as pointed out by Lord Macmillan in his speech in Liversidge's case. Of course, there too in times of grave emergency, the remedies for obtaining the writs of habeas corpus had sometimes to be suspended under the various Habeas corpus Acts. But that apart, the safeguards were enshrined in the Regulations themselves. Rule 26 of the Defence of India Rules, 1939 providing no safeguards could not be declared ultra vires on the ground of their being violative of any fundamental rights.
17. But the situation under the present Constitution is substantially different. On the one hand, fundamental rights have been guaranteed by enshrining them in part III of the Constitution; on the other, people themselves through their representatives in the Constituent Assembly have adopted and enacted the Constitution providing in Article 358 the suspension of fundamental right engrafted in Article 19 and empowered the President to suspend the rights of the citizen to move any court for the enforcement of certain other rights conferred by Part III. That being so, it follows logically that the rights, like those provided in Article 22, cannot be enforced at the present moment during the operation of the promulgation of Emergency and the order of the President issued under Article 359. To me it appears that though theoretically rights under Articles 14, 21 and 22 have not been taken away or suspended, by suspending the remedies for their enforcement, to all intents and purposes, in spirit and in substance, they are in abeyance at the moment. If a person cannot ask the court to declare the law made in violation of those rights ultra vires, he also cannot ask indirectly for their enforcement by seeking the aid of the court to compel the executive to do what they are not bound to be under the law, merely because allegations of bad faith have been made. If those allegations can be substantiated without enforcement of the rights like the ones engrafted in Article 22 and if in a given case, it is possible to hold that the impugned order has been passed not in genuine exercise of the powers conferred on the executive but out of ulterior-considerations in bad faith, the courts will have no hesitation in knocking down the order. But, as pointed out above, from the practical point of view in large number of cases, if not in all, a Judge will feel helpless, without examining the facts and grounds of detention, to cross the region of suspicion, however strong it may be, and to come to a positive finding, as he has to, before knocking down the order on the grounds of mala fides, that it has been made on such account and not in genuine exercise of the power.
18. I shall take help of an illustration to support the view I have expressed above. Suppose A was a rival candidate in the election in which the Minister in charge of making orders under R. 30 of the Rules was returned. They had serious election disputes. And, suppose further that they led to several cases between them both of civil and criminal nature. Assume further that A indulges or is likely to indulge in committing acts prejudicial to the defence of India, civil defence, etc. Can he in such a situation be ordered to be detained by the Minister under R. 30 of the Rules or can he be not? On the facts I have assumed, the answer obviously will be in the affirmative. But it may well be that the Minister concerned has exercised his power mala fide out of animus which he bears against A. Possibilities of both kinds being there, how will a Judge in the present state of law decide without adjudging the facts purported to be in support of the detention order that the existence of animus between A and Minister must necessarily lead to the conclusion that the power has been exercised mala fide?
19. Learned Advocate-General submitted that administrative orders and specially of the kind with which we are concerned in these cases cannot be declared bad on mere proof of bias, in the mind of the officer making the order. In support of his contention, he relied upon the decision of the house of Lords in Franklin v. Minister of Town and Country Planning, (1947) 2 All ER 289, Lord Thankerton has said in his speech at p. 296:
“My Lords, I could wish that the use of the word “bias” should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of evenhanded justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parries, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute…… But in the present case the respondent having no judicial duty, the only question is what the respondent actually did, i.e whether, in fact, he did genuinely consider the report and the objection.”
20. In this connection I want to refer to the decision of the Supreme Court in Gullapalli Nageswararao v. State of Andhra Pradesh, AIR 1959 SC 1376. Subba Rao, J., delivering the judgment of the court, has observed at p. 1379 (column 2), after referring to some English cases that:
“These decisions show that in England a statutory invasion of the common law objection on the ground of bias is tolerated by decisions, but the invasion is confined strictly to the limits of the statutory exception. It is not out of place here to notice that in England the Parliament is supreme and therefore a statutory law, however repugnant to the principles of natural justice, is valid; whereas in India the law made by Parliament or a State Legislature should stand the test of fundamental rights declared in Part III of the Constitution.”
21. To my mind, however, the law of preventive detention to be found in R. 30 of the Rules, if cannot be tested with reference to the fundamental rights, the order also made under the said law cannot be tested by enforcing those rights. If it has to be tested, it has to be tested without their enforcement. I am aware that in Makhan Singh's case, AIR 1964 SC 381, it has been said at p. 400 (paragraph 36):
“It is hardly necessary to emphasise that the exercise of a power mala fiae is wholly outside the scope of the Act conferring the power and can always be successfully challenged.”
22. But at the same time it has been emphasised that “a mere allegation that the detention is mala fide would not be enough; the detenu will have to prove the mala fides”. The bar created by Article 359(1) and the presidential order will not preclude the detenu from substantiating his plea of mala fide. If the plea can be substantiated, as I have said above, without compelling the detaining authorities to disclose the grounds and facts in support of the order of detention, the detenu can do so by all means. But the difficulty will arise if he cannot do so without them.
23. I may in this connection refer to the observations of the Supreme Court in Makhan Singh's case, AIR 1964 SC 381 in Para 39 at p. 401 where it has been said:
“……if the detenus had been able to show that the impugned provisions of the Act were invalid because they suffered from the Infirmity of excessive delegation, the next step which they would have been entitled to take was to urge that their detention under such an Act is void under Article 21, because the law referred to in that article must be a valid law; and that would raise the question as to whether this latter plea falls within the ambit of Article 359(1) and the Presidential order issued under it.”
24. No opinion on this question, however, was expressed by the Supreme Court. The said observations as also some others in that case in the majority decision of the Court do, however, indicate that if the success of an application for a writ of habeas corpus depends upon, or involves, the enforcement of the fundamental right, the remedy of which has been barred by the Presidential Order, the writ cannot issue. Mr. Setalvad's argument before the Supreme Court was that during the operation of the Presidential Order Executive may abuse its power and the citizens would have no remedy. It was repelled at p. 402 (para 46) thus:
“This argument is essentially political and its impact on the constitutional question with which we are concerned is at best indirect. Even so, it may be permissible to observe that in a democratic State, the effective safeguard against abuse of executive powers whether in peace or in emergency, is ultimately to be found in the existence of enlightened, vigilant and vocal public opinion.”
25. In passing, I may state that the learned. Advocate-General invited us to examine for ourselves the grounds and materials in support of the detention orders made against the petitioners in these cases from the original files maintained in the political Department, which he offered to produce. We aid not reel persuaded to adopt this course as, in our opinion, it was not legitimate or, at any rate, desirable to do so in some cases and not in others. Moreover, the detenus concerned had not made any prayer of this kind.
26. Coming to the facts and the special points urged by Mr. Shyama Prasad Mukherjee, in the three cases out of four which he argued, it would be found that in the original application in Cri. W.I.C 113 of 1965 filed on behalf of Shri Arbind Prasad Sinha supported by an affidavit sworn by Shri Kameshwar Prasad claiming to be the friend of the petitioner, it was stated that the petitioner is employed as an assistant in the Legislative Assembly situated within the Patna Secretariat Compound. He claims that he has been in service for more than 5 years and has always been disciplined and diligent in his duty on the 9th August, 1985, he attended his office punctually at 10-30 a.m and was all along on his duty till 1-30 p.m when the office was closed by the order of the Chief Secretary, Government of Bihar. On 18-8-1965 the petitioner surrendered before the Sub-divisional Officer in connection with P.S case No. 16(8) 65 under Ss. 147, 353, 323, 352, 436 and 452 of the Indian Penal Code. His prayer for bail was rejected by the Sub-divisional Officer, and he was remanded to jail custody. It was alleged that the petitioner was connected with some incidents that occurred on the 9th of August, 1965 at Patna. The petitioner was, however, released on bail on 21-8-1965 in pursuance of an order made by the Sessions Judge of Patna. The petitioner claims that he never participated in any political agitation sponsored by any political party nor is he a member of any such party.
27. On 29-8-1965 he was again arrested under the impugned order of detention dated 25-8-1965 made under R. 30 of the Rules a copy of which is annexure A to the writ application. He claims to be a law-abiding and peace-loving citizen of India and denies to have done or intending to do anything which is in any manner prejudicial to the public safety and security or to the maintenance of the public order. The petitioner is a member of the Ad hoc Committee of the Patna Secretariat Ministerial Officers Association and of General Council of Bihar State Non Gazetted Employees Federation. In a meeting, of the Federation held in the evening of the 9th August, 1965 resentment and concern were expressed over the atrocities committed by the police on the Secretariat employees. The petitioner participated in that meeting and so he incurred displeasure of the authorities on account of the taking up of the cause of the unfortunate employees of the Secretariat, who were subjected to the atrocities of the police.
28. The petitioner's further case is that as a prominent and active member of the non-Gazetted Employees Federation and in capacity of an office-bearer, he has been peacefully agitating and participating in all agitations for Increase of pay, emoluments and other service facilities for them. The Federation or the ad hoc committee of the Patna Secretariat Ministerial Officers Association or the petitioner had nothing to do with the demonstration made in observance of ‘Patna Band Movement’ sponsored by some political parties on 9th August, 1965. But on account of the petitioner's association with the Federation and the ad hoc Committee or his participation in the activities aforesaid, the “Chief Minister of Bihar and his subordinates in the services of the State of Bihar are not only annoyed but also angry with the petitioner”. His case, therefore, is that “the arrest and detention of the petitioner is as a result of bias, prejudice and malicious intention of the Chief Minister of Bihar and his subordinates in the service of the State of Bihar”.
29. The order contained in annexure A has been authenticated and signed by Shri J.M Dutta, Under-Secretary, Political (special) Department of the Government of Bihar, although the order has been expressed in the name of the Governor. The petitioner has further alleged in his petition that the Under-Secretary has no independent existence in the matter of the arrest and detention and that he acted at the behest of the Chief Minister of Bihar, and under his direction, whims and caprices and other superior officers of the Secretariat. After stating some more facts which are not necessary to be detailed here, the petitioner attacked the order of detention as being mala fide and having been made at the instance of the Chief Minister and his subordinate officers to wreak vengeance against him for what he had done as a member of the two Organisations aforesaid.
30. By an affidavit sworn by Shri Birendra Prasad Gupta, another friend of the petitioner, on 16-11-1965 and filed on 16-11-1965, a further point was taken that the correct name of the petitioner is Shri Arbind Prasad Sinha, his father's name is Shri Shivanand Prasad Sinha and he is a residenl of fist No. A/I Puniachak, P.S Gardanibagh, Patna. But the order of detention relates to Arbind Prasad, son of Sheonandan Prasad Singh and not Arbind Prasad Sinha son of Shivanand Prasad Sinha.
31. A counter-affidavit dated 27-11-1965 sworn by the Under-Secretary was filed on behalf of the State of Bihar, opposite party No. 1 and Shri J.M Dutta, Under-Secretary to the Government of Bihar, opposite party No. 2, on 29-11-1265. The stand, in short, taken in the counter-affidavit is that certain statements contained in the petition are not correct. The Government were aware that Shri Arbind Prasad Sinha was an, active member of the ad hoc committee of the Patna Secretariat Ministerial Officers Association and the Bihar State Non-Gazetted Employees Federation but he has not been detained on account of that. Government received confidential report that he was acting in a manner prejudicial to the public safety and maintenance of public order, and on being satisfied that his remaining at large was prejudicial to the public safety and maintenance of public order, the impugned order was made. The petitioner did not incur displeasure of the authorities on account of his taking up the cause of the unfortunate employees of the Secretariat allegedly subjected to the atrocities of the police. It was not correct to say that the Chief Minister of Bihar and his subordinates in the service of the State of Bihar were annoyed and angry with the petitioner or that he has been detained as a result of their bias, prejudice or malicious intention.
32. The further case in the counter-affidavit is that the facts with reference to which the criminal case is proceeding are different from those on which the order of detention has been passed against the petitioner.
33. A supplementary affidavit sworn by the petitioner himself on 29-11-1965 was filed on 1-12-1965. Further facts stated in this supplementary affidavit are these. The Chief Minister had on many occasions threatened to take stern action against all active members and office-bearers of the two Organisations. This was said to be evident from the statement issued by Shri Ram Ekbal Singh, President of the Bihar State Non-Gazetted Employees Federation, which was published in the local daily ‘Ararjaverta’ dated 18th June, 1965.
34. On the 4th August, 1965 when the Federation had organised a peaceful demonstration in front of the residence of the Chief Minister to ventilate their legitimate grievances and asked the authority to enforce the recommendation of the Pay Revision Committee, the Chief Minister threatened the petitioner, Shri Ram Ekbal Singh, Shri Rewati Kant Sinha, Shri Anirudh Singh, Shri Kusheshwar Poddar, Shri Ram Darshanachari and many others, who were leading the peaceful procession, and informed them that he had alerted the Under-Secretary, Political Department, the District Magistrate, Patna, the Superintendent of Police, Patna, and other officers to take stern action against their leader including the petitioner. Shri Jogeshwar Gope, one of the leaders of the Federation, had an interview with the Chief Minister on 10-10-1965 when he was lodged in Hazaribagh Jail, and the Chief Minister made the following observation during this interview:
“You (Jogeshwar Gope), Rewati Kant Sinha, Ram Ekbal Singh, Arbind Prasad Sinha, Kuseshwar Poddar, Ram Darshanachari, Anirudh Singh, Gopal Prasad Tripathy, Shaligram Jha and many other leaders had been consistently harassing mo for more than two years. I had asked the Under-Secretary, Pol Heal (special). District Magistrate, Patna, Superintendent or Police and other officers to take stern action against your agitators. Whoever might have indulged in subversive activity I will hold you people responsible for the same. You the leaders of the Non-Gazetted Employees Federation have abused Ministers and misbehaved with them and so I got you people arrested so that you may repent for your misdeed.”
35. It may be stated here that the petitioner was lodged in Bankipore jail at that time.
36. The supplementary affidavit dated 2-12-1965 sworn by Shri Jitendra Mohan Dutta, Under-Secretary, was put in and the allegations made in the supplementary affidavit sworn by the petitioner were denied on the basis of the enquiries made by the deponent from the Chief Minister. For the reasons which were more elaborately given in the case of Ram Balak Singh (Cri. W.J.C 126 of 1965) the petitioner was directed to be released on bail, as already stated, on the 3rd of December, 1965, by a Division Bench of this Court which prima facie took the view that the hearsay affidavit at the Under-Secretary was not sufficient for an effective denial of the petitioner's allegations in his affidavit. An affidavit dated 18-12-1965 sworn by Shri Noorul Haque, Superintendent, Hazaribagh Central Jail, Hazaribagh, was filed on 16-12-1965. The Superintendent claimed that when the Chief Minister paid a visit to the Hazaribagh Central Jail on the 10th October, 1965, he received him and took, him round inside the jail premises. The allegation that the Chief Minister held out any threat to Jogeshwar Gope or any detenu is entirely false.
37. The petitioner filed another supplementary affidavit dated 18-12-1985 denying the statements made in the affidavits filed by Sarvashri J.M Dutta and Noorul Haque, and it was further asserted that when the Chief Minister Shri K.B Sahay was talking with Jogeshwar Gope, Gopal Prasad Tripathy and Shaligram Jha in the Hazaribagh Central Jail, Shri Noorul Haque was not present there. At that point of time, he was accompanying the family members of the Chief Minister, who had gone with him and were visiting the other areas of the jail. Shri Noorul Haque by his affidavit dated 20-12-1965 filed on 10-1-1966 claimed that he was all along with the Chief Minister during his visit to the Hazaribagh Central Jail on the 10th of October, 1965 and it was false to say that Jogeshwar Gope and others had any talk with the Chief Minister when he has not accompanying him or that at any point of time the Chief Minister was alone with Jogeshwar Gope or any other detenu. No conversation of the nature mentioned earlier took place between the Chief Minister and Jogeshwar Gope.
38. A petition was filed on 31-1-1966 on behalf of the petitioner for making the Chief Minister of Bihar a party to this application for a writ of habeas corpus. On 1-2-1966 when the hearing of the case began, the learned advocate-General stated that the Chief Minister was neither a necessary, nor a proper party to be added and no objection would be raised on behalf of the State Government to the allowing of the application if it was otherwise fit to be allowed on the ground of non-joinder of the Chief. Minister as a party to the application. In that view of the matter, by our order recorded on 1-2-1966, we did not think it necessary to add the Chief Minister as a party to the proceeding and delay the hearing of the application any further.
39. It should be stated here that the order of detention against Shri Jogeshwar Gone had been made on the 20th August, 1965 by the District Magistrate of Patna. And, that order has been challenged by him in Cri. W.J.C 116 of 1965 by filing a petition on 13-9-1965 for a writ of habeas corpus. The talk between the Chief Minister and Shri Jogeshwar Gope alleged to have taken place in the Hazaribagh Central Jail on 10-10-1965 was, for the first time, stated in the affidavit dated 29-11-1965 of Shri Jogeshwar Gope filed in Cri. W.J.C 116 of 1965 on 1-12-1965. The same extract was quoted in the affidavit, of the petitioner, Shri Arbind Prasad Sinha, his affidavit filed on the same date (1-12-1965). Though technically speaking, the alleged talk between Jogeshwar Gope and the Chief Minister incorporated in the petitioner's affidavit in the instant case would be based upon the hearsay information of the petitioner, the learned Advocate-General did not raise any technical objection to its admissibility. The application of Jogeshwar Gope was allowed by us on 1-2-1966 on the sole ground that the order made by the District Magistrate having not been reviewed and confirmed by the Reviewing Authority and the State Government within a reasonable time, his detention was illegal.
40. The special points urged by Mr. Shyama Prasad Mukherjee in the case of Arbind Prasad Sinha are— (i) that the impugned order of detention was not meant for, and did not relate to, the petitioner, there being inaccuracies of particulars in it; (ii) that the order and detention of the petitioner were mala fide after the granting of the bail in criminal case by the learned Sessions Judge of Patna; (iii) that the order does not indicate that provisions of Section 44 of the Act were kept in view and complied with by the State Government; and (iv) that the affidavit filed by Shri J.M Dutta does not indicate as to on whose personal satisfaction the State Government made the order.
41. There is no substance in any of these special points. In the impugned order, the particulars mentioned are:
“Sri Arvind Prasad s/o Sheonandan Prasad Singh, village Baluawaha, P.S Sadar, district Muzaffarpur and 1/1, Flat, Punaichak, P.S Gardanibagh, Patna, Assistant Legislative Assembly Secretariat, Patna…”
42. In the cause title of the writ petition the particulars mentioned are—
“Arbind Prasad Sinha s/o Sheonandan Prasad Singh, village Baluawaha, P.S Sadar district Muzaffarpur and A/1 Flat, Punaichak, P.S Gardanibagh Patna Assistant, Legislative Assembly Secretariat, Patna……”.
43. In the affidavit sworn by another friend of the petitioner on 16-11-1965, it was stated that the father's name of the petitioner is Shri Shivanand Prasad Sinha. In my opinion, the inaccuracies in the impugned order were not such as to raise even an iota of doubt in the fact that it related to, and was meant for, the petitioner.
44. On the affidavits of Shri J.M Dutta, Under-Secretary, to the Government of Bihar, it is clear that the petitioner had not been ordered to be detained in relation to his alleged commissions and omissions or facts which are the subject-matter of the charge in the criminal case. He has been ordered to be detained in order to prevent him from acting in any manner prejudicial to the public safety and maintenance of the public order. It has been pointed out by the Supreme Court in Makhan Singh's case, AIR 1964 SC 381 and other cases that there is no bar in the way of the State Government in detaining a person if he has been ordered to be released on bail in a criminal case. The order of detention can be challenged on such a ground only if the detenu is able to satisfy the Court that he has been detained for the alleged acts for which he is being prosecuted and with the mala fide intention of evading the regular procedure of law, investigation and prosecution as provided in the Code of Criminal Procedure.
45. The third special point urged on behalf of the petitioner is devoid of substance in view of the decision of the Supreme Court in Smt. Godavari Shamrao Parulekar v. State of Maharashtra, AIR 1964 SC 1128, where it has been said in Para 10 at p. 1134:
“It is true that S. 44 provides that there should be as little interference with the ordinary avocations of life as possible when orders are made under the Act or the Rules; but that does not mean that a detention order must show on the face of it that the State Government had considered the various clauses of R. 30(1) and had come to the conclusion that the only way in which the purposes of the Act and the Rules could be carried out was by the use of Cl. (b) of R. 30(1). In our opinion when the order says that it is necessary to make an order of detention in order to restrain the prejudicial activities mentioned therein it means that was the only way which the State Government thought was necessary to adopt in order to meet the situation. It will then be for the detenu to show that the order had gone beyond the needs of the situation and was therefore contrary to S. 44.”
46. No such thine has been shown in any of the instant cases dealt with in this judgment.
47. In Emperor v. Sibnath Banerji, AIR 1945 PC 156, the Privy Council pointed out at p. 163 with reference to the provisions of R. 26 of the Defence of India Rules, 1939, and the Government of India Act, 1935 that:
“Such matters as those which fell to be dealt with by the Governor under R. 26 could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chap. 2 of Part 3 of the Act of 1935, and, in particular under the provisions of S. 49 and the rules of business made under S. 59.”
48. The order under R. 30 of the Rules has got to be made by the State Government. Theoretically it will be expressed in the name of the Governor as having been made on his satisfaction and will be authenticated and signed by an officer of the Government. Under Article 166 of the Constitution, the person authorised to make such orders under rules of business will, in practice, make it on his satisfaction. That it is so will appear from Para 8 of the decision of the Supreme Court in Godavari's case, AIR 1964 SC 1128 at p. 1133. In the cases in hand, it is undisputed that the Chief Minister was the person on whose satisfaction the orders were being made in practice and procedure by the State Government. No facts have been stated in any of the petitions to lend any support to the fourth special point urged on behalf of the petitioner, which also must fail as being without substance.
49. The facts of the other two cases, namely, Cri. W.J.C Nos. 123 and 124 of 1965 argued by Mr. Shyama Prasad Mukherjee are almost similar to the ones in Cri. W.J.C 115 of 1965. No other special point was made out or urged in either of the two cases. It may only be stated here that the first special point urged in the case of Arbind Prasad Sinha as to the alleged inaccuracies of the particulars mentioned in the detention order did not arise in either of these two cases. Nor was the second special point available to the petitioner in Cri. W.J.C 124 of 1965 as he had not been arrested or released on bail in connection with any criminal case against him as no such case was pending against him at the time of his arrest in pursuance of the impugned order.
50. Coming to the main point of mala fides in these three cases, even on questions of fact, I am not satisfied that the petitioners have been able to substantiate their pleas. The mere fact that they were participating in the agitation on behalf of the two Organisations for ventilation and redress of the grievances of the non-gazetted employees cannot lead to the conclusion that the Chief Minister or his subordinates had any animus against the petitioners.
51. The specific allegation made in the supplementary affidavit sworn by Shri Arbind Prasad Sinha and filed on 1-12-1965 to the effect that on the 4th of August, 1965 when the Non-Gazetted Employees Federation had organised a peaceful demonstration in front of the residence of the Chief. Minister, he, as on earlier occasions, had threatened on that day several office-bearers of the Federation including Arbind Prasad Sinha that he had alerted the Under-Secretary, Political Department, the District Magistrate, Patna, the Superintendent of Police, Patna, and other officers to take stern action against the agitators, is also too vague and inadequate to substantiate the plea of mala fide. One of the officers alleged to have been alerted, namely, the Under Secretary, Political Department, has denied this fact in his counter-affidavit. Even assuming the allegation to be true, there was nothing wrong on the part of the Chief Minister in alerting the various officers of the Government to take stern action against the agitators, which would, in all probability, mean to take stern action against them if they were found to indulge in unlawful activities. The glaring situation prevalent in our country that agitators who start agitation for one purpose or the other, more often than not, are not peaceful and sometimes indulge in subversive activities and commit unlawful acts, cannot be lost sight of. In such a situation, the mere fact of alerting the officers by the head of the Government to take stern action against the agitators cannot lead to the conclusion that it was actuated by malice or animosity.
52. In regard to the talk alleged to have taken place between the Chief Minister and Shri Jogeshwar Gope in Hazaribagh Central Jail on 10-10-1965, I would say that on the very face the allegation does not seem to be true. It is almost impossible to believe that the Chief Minister would have made such a categorical statement before Jogeshwar Gope in Hazaribagh Central Jail almost leading to the confession of the Chief Minister that he had got them arrested with ulterior motives in order to wreak vengeance on them. The allegation was made too late by Jogeshwar Gope in his case, and so in these cases. Moreover, on the affidavits of Shri Noorul Haque, Superintendent, Hazaribagh Central Jail, I am satis-fled even without the affidavit of the Chief Minister that no such talk took place between the latter and Jogeshwar Gope.
53. For the reasons given above, I have no hesitation in holding that the petitioners in the three cases argued by Mr. Shyama Prasad Mukherjee have not been able to substantiate and make out any point of law or fact to enable this Court to declare the impugned orders of detention as having been made mala fide, illegally or without Jurisdiction. In the result, all these applications fail and are dismissed.
54. Some of the facts and circumstances in Cri. W.J.C 126 of 1965 being different have got to be separately dealt with. The original petition was filed on 13-9-1965 on behalf of two persons, namely, Rambalak Singh ‘Balak’, the detenu concerned, as petitioner No. 1, and his grand-nephew Ram Krishna Prasad Singh as petitioner No. 2. The affidavit in support of the petition was sworn by the latter. Hereafter in this Judgment petitioner No. 1 will be referred to as the petitioner. Many allegations in this petition are more or less similar to the ones in the other petitions dealt with above. The further allegation is that Shri Krishna Ballabh Sahay, Chief Minister of Bihar, tried his best to gain over the petitioner and tried to purchase him but he did not agree to betray his associates, and since the former could not succeed in gaining him over, he became inimical to him. Shri Krishna Ballabh Sahay, Chief Minister of Bihar, was, from the very beginning, impleaded as opposite party No. 4 in this Application, the other opposite parties being Nos. (1) the Superintendent, Bankipore Jail, Patna, (2) Superintendent, Central Jail, Hazaribagh, (3) District Magistrate, Patna, and (5) the State of Bihar. The petitioner's case further as made out in the petition is that opposite party No. 4 had instructed opposite party No. 3 to get the petitioner arrested by police on the eve of the disturbances created at Patna. The petitioner was arrested by the police on 18-8-1965 in connection with a case under Ss. 147, 149, 337, 323 and 452 of the Indian Penal Code arising out of Patna Bundh Disturbances. He was released on bail on 21-8-1965 in pursuance of the order of the learned Sessions Judge of Patna. But he was again arrested on 28-8-1965 in pursuance of the order of the State Government made under R. 30(1)(b) of the Rules on 25-8-1965. It was conceded that by mistake in the original application the order was described to be that, of the District Magistrate.
55. A counter-affidavit sworn by Shri Gangadhar Singh Choudhary, a Deputy Magistrate posted at Patna, was filed on behalf of opposite party No. 3 on 20-10-1965. The deponent admitted in this counter-affidavit that he was not in a position to say anything in regard to the allegations of mala fides made against the Chief Minister in various paragraphs of the petition. On 8-11-1965, as asked for by the learned Standing Counsel, time was granted by a Bench of Shis Court consisting of Narasimham, C.J, and S.N.P Singh, J., to file a supplementary affidavit. On 16-11-1965, however, a counter-affidavit was filed on behalf of the State of Bihar, opposite party No. 5, sworn by Shri Nawal Kishore Prasad, an assistant working in the Political Department. The allegations made against the Chief Minister were briefly denied by this assistant in his counter-affidavit as being “true to my knowledge derived from the Chief Minister of Bihar which are believed to be true” Obviously, this affidavit was useless in substance and defective in law. As prayed for on behalf of the petitioner the said Bench granted time till 24th November, 1965 to him “to file a supplementary affidavit mentioning specific particulars to establish his allegation of mala fide”.
56. A supplementary affidavit sworn by the petitioner himself was filed on 24-11-1965, on which date, without prejudging the issue or saying anything definite on the subject, the Bench, taking the view that several serious allegations have been made by the petitioner and specially paragraphs 13 and 14 of the said supplementary affidavit, if believed, may support the allegation that the order of detention was passed mala fide, directed the petitioner to be released on bail. Against this order, the State of Bihar filed Criminal Appeal 200 of 1965 in the Supreme Court a fact which has already been mentioned in the beginning of my judgment. The petitioner claims to be a leader of the non-gazetted employees serving in the State of Bihar and like other petitioners, was taking active part in the activities carried on for the ventilation of their grievances, it is stated in the supplementary affidavit that, on the 23rd of March, 1965, there was much commotion and agitation amongst the non-gazetted officers as their ladies were insulted by the Chief Minister, Shri K.B Sahay, on the 16th February, 1965. On the 22nd March, 1965, a meeting of the ladies and children of the non-gazetted officers' families was held at Gardambagh, which expressed the grave concern over the attitude si the Chief Minister who had insulted them. It is stated in Para 4 of the supplementary affidavit that on the 23rd of March, 1965, Shri K.B Sahay was much disturbed and invited the petitioner at his residence and asked him as to why he was bent upon creating trouble against him forgetting their mutual relationship in the past.
57. Thereupon the petitioner advised the Chief Minister not to forget the past commitments to the non-gazetted officers. The petitioner and the non-gazetted officers helped the Chief Minister in winning the election of 1962. The petitioner resisted the temptation given by the Chief Minister to win him over. Many serious allegations—rightly or wrongly, necessarily or unnecessarily—have been made against the Chief Minister in this supplementary affidavit. It is claimed by the petitioner that he had taken an active part in collecting the data regarding the alleged corrupt activities of Shri K.B Sahay when the people of Bihar had made a representation in a memorandum to the President of India. The petitioner had written several articles in Hindi Papers of Bihar in connection with certain statements made by the Chief Minister on the floor of the Assembly regarding the pay revision of the non-gazetted officers.
58. The petitioner had attended various meetings together with the Chief Minister on different occasions and had criticized him in his attitude towards the non-gazetted officers. On the 10th of August, 1965, at 10-30 a.m Shri Deo Saran Singh, Chairman of Bihar Legislative Council, informed the petitioner that Shri K.B Sahay wanted to see him. He accordingly went to the residence of the Chief Minister where were present Shri J.N Sahu, District Magistrate, Patna, and Shri R.A.P Sinha, Deputy Inspector General of Police. In that meeting during the course of the talk the petitioner expressed his grave concern over the assaults made on the non-gazetted officers when they were working on their tables. The Chief Minister, thereupon, it is said in Para 14 of the supplementary affidavit, told the petitioner that the two officers aforesaid would teach him a good lesson if he would do anything in this, connection and instructed those officers to be vigilant and arrest him if occasion would arise. The petitioner raised his voice for institution of judicial enquiry in regard to the alleged assault and, therefore, the Chief Minister got him arrested on the 18th August, on various allegations and got him arrested again on the 28th August after he was released on bail on 21st August.
59. Although it transpired at the time of the hearing of this application on 3-2-1966 that its notice had not been served on Shri Krishna Ballabh Sahay, opposite party No. 4, it appears from order dated 2-12-1965 of the Bench of this Court, that as prayed for by the Government Advocate two weeks' time was allowed to the Chief Minister to file a counter-affidavit, if any. No counter-affidavit, however, was filed by the Chief Minister.
60. On 16-12-1965 various affidavits were put in on behalf of the opposite parties. One of these is an affidavit sworn by Shri J.N Sahu, District Magistrate, Patna. He states with regard to the allegation made in Para 13 of the supplementary affidavit that he did not visit the residence of the Chief Minister on the 10th August, 1965. He states that neither on that date nor on any other date the petitioner visited the residence of the Chief Minister in his presence. Shri R.A.P Sinha, Deputy Inspector General of Police, states in his affidavit that he had no contact with the petitioner on the 10th August, 1965 or on any other date at the residence of the Chief Minister or anywhere else.
61. The third affidavit put in on 16-12-1965 is one sworn by Shri Jitendra Mohan Dutta, Under-Secretary to the Government of Bihar, Political (Special) Department. In this affidavit, almost all the allegations made in the original petition or in the supplementary affidavit have been denied. The denial, it is stated at the fag end of the affidavit, has been made partly on his personal knowledge and partly on information received from persons concerned including the Chief Minister. In the 8th Para, of the affidavit, it has further been stated that:
“That, although it is not possible in the public interest to disclose all the facts contained in the report received from the Criminal Investigation Department, Special Branch, Bihar, Patna, nonetheless the aforesaid report clearly discloses that the activities of the petitioner No. 1 and certain other members of his association constituted a series of indisciplined acts involving instigation of public disorder, acts of violence, hooliganism, sabotage and generally destructive of the maintenance of public safety and public order, in collaboration with certain Leftist Organisation with a definite programme of subversive activities leading to wide-spread disturbances on the 9th of August, 1965. The subsequent course of their activities created apprehension of further deterioration in the situation in which the petitioner No. 1 again joined after his release on 21st August, 1965 and it was considered absolutely essential to prevent the mischief by ordering the detention of the petitioner No. 1 and certain other persons who collaborated with him. The allegation in the 17th Para, of the said writ application is, therefore, entirely incorrect.”
62. Out of the affidavits filed on 16-12-1965 on behalf of the opposite parties, three are of the members of the security staff or the security force stationed at the residence of, or attached to, the Chief Minister. In these affidavits, the claim of the petitioner that be met the Chief Minister at his residence on the 23rd March, 1965 and 10th August, 1965 has been denied so also the allegation that on the 16th of February, 1965 the Chief Minister insulted the ladies of the non-gazetted officers. Similar denial with reference to the alleged incidents of 23rd March and 10th August, 1965 has been incorporated in the affidavit of Shri Awadh Narayan Prasad, Private Secretary to the Chief Minister.
63. On the 2nd December, 1965 an affidavit was filed on behalf of the petitioner sworn by one Shri Naulakh Singh claiming to be a member of the Congress Party and a friend of the petitioner. This affidavit is on the point of close association of Shri K.B Sahay with the petitioner at the time of the last general election and the meeting of the petitioner with the Chief Minister on the 10th August, 1965. An affidavit sworn by one Shri Santoshi Prasad Verma claiming to be a friend of the petitioner was put in on the 47th of January, 1966 to support the petitioner's claim of having gone to the residence of the Chief Minister on the 23rd March, 1965.
64. On 3-2-1966 when the hearing of this case started, it was pointed out to us that notice of the application had remained unserved on opposite party No. 4. Yet the case was posted for hearing due to some confusion which we have recorded in our order of that date. To avoid the technical defect, we asked the learned Government Advocate as to whether he was prepared to accept notice on behalf of opposite party No. 4 and file appearance. He undertook to do so. Immediately learned Additional Government Pleader put in appearance on behalf of the said opposite party. He stated, however, that he did not want any adjournment of the case on behalf of the Chief Minister, opposite party No. 4, for any purpose. Then we proceeded to hear this case also on merits.
65. I must state here that it is a mystery to me as to why as many as half a dozen affidavits have been put in on behalf of the opposite parties on the 16th of December, 1965 to controvert the allegations of the petitioner either made in the original petition or in his supplementary affidavit, which, if untrue, could have been denied in a single affidavit of the Chief Minister. It shows that the Chief Minister is not prepared to put in an affidavit in Court to deny the various allegations made by the petitioner, whatever may be the reason, for it. The High Court, in the democratic set up of our Constitution, has its own part to play and make its own contribution for the success of our nascent democracy—largest in the world. It cannot, therefore, view with favour this attitude of the Chief Minister. The power granted to the State Government under the exigencies of the situation to detain a person under R. 30(1)(b) of the Rules is absolute and is likely to be exercised arbitrarily and for ulterior motives. The exercise of the power, however, should not appear to be dictatorial, as it would, if the Minister concerned will feel shy of putting, an affidavit before the High Court to deny the allegations of personal animus against him made by the detenu concerned. Criticising the Liversidge's case, 1941-3 All ER 838, Dr. Allen, an eminent Jurist, has said at p. 233 in 58 Law Quarterly Review:
“This aspect of the decision is perturbing to those who are unable, whatever may be the exigencies of war, to divest themselves of certain old-fashioned constitutional doctrines. Generations of Englishmen have been brought up to regard it as one vital aspect of the Rule of Law (for which, among other things, this country is now fighting the most crucial war in its history) that all persons are equal before the law and that for any unjustified infringement of the liberty of the subject the liability of a Minister of State is no whit different from that of a policeman, or, indeed, from the meanest of the King's subjects. Many of the great constitutional battles in our history have been fought on this very issue. If we are to understand for the future that executive office, dignity or responsibility, whether in peace or he ware exempts the incumbent from inquiry into the reasonableness or arbitrariness of his conduct, when it affects the elementary rights of a citizen, then we must revise all our ideas.”
66. In many cases of detention in England, it will appear from the English Reports including the one in Liversidge's case, the Home Secretary who enjoys no less a position and respect than a Minister holding the home portfolio or an equivalent one in any State of India, has sworn and put in affidavits before the Courts in England. The Supreme Court of India in several cases, to wit, in C.S Rowjee v. State of Andhra Pradesh, AIR 1964 SC 962 has drawn adverse inferences against the State Government for its failure to put in a proper affidavit of denial of the Minister concerned or of a person who could claim to know personally about the truth of the allegations made by the petitioner. In (1941) 3 All ER 104 Scott, L.J, sitting in Court of Appeal has said at p. 115:
“I can see no legal need for the Home Secretary to make any affidavit. The onus of proof is not on him. In addition, there is a definite reason why unnecessary affidavits should not be made by him in habeas corpus proceedings under R.S.C, Ord. 59. The ordinary procedural rules about hearsay statements and the right of the other side to cross-examine are applicable, and both rules make affidavits by him almost futile. If his bona fides were attacked, a different position might arise, but, in the ordinary case, a letter from the Home Office addressed to the court and identifying the order made should be a sufficient substitute for the gaoler's return to the writ under the old practice, or, at any rate, an affidavit of the gaoler exhibiting the original of the order.”
67. On the basis of the above observations of Scott, L.J, and even independently of it, I am of the view that an affidavit by the Minister concerned is not necessary in support of the fact that a particular detenu has been detained for his prejudicial activities within the meaning of R. 30 of the Rules. The affidavit of Shri J.M Dutta, Under-Secretary to the Government, in this regard must be deemed to be sufficient as he deals with the various files of the detenus, in which the orders are made by the State Government. But if bona fides of the Minister concerned are attacked, a different position might arise and does arise, at any rate, in the case of Rambalak Singh. The Court, therefore, would have felt happy to have the counter-affidavit of the Chief Minister himself in this case and then to judge as to whether the allegations made by the petitioner should be believed or not. In absence of his affidavit, on the facts and in the circumstances of this case, I am not prepared to hold that the allegations have been completely refuted by half a dozen affidavits filed on behalf of the opposite parties on the 16th December, 1965. I will more for this purpose the affidavit sworn by the grand-nephew of the petitioner in support of the original application. But when facilities as directed by the Court were given to the petitioner himself to swear an affidavit which he did and filed on 24-11-1965, it became necessary to file a proper affidavit of denial. It may well be that when the petitioner went to the residence of the Chief Minister on the 23rd of March, 1965 and the 10th August, 1965, the various persons who have sworn affidavits in denial of this fact were not present and the claim of the petitioner to that extent may not be quite correct.
68. Nonetheless, in the absence of an affidavit of the Chief Minister, I am not prepared to reject outright the claim of the petitioner in this regard as untrue, specially his claim of the talk which, he says, he had with the Chief Minister on the 23rd of March, 1965. The members of the security staff or the private Secretary of the Chief Minister are not competent to deny this fact categorically. The petitioner claims to have gone to the residence of the Chief Minister on the 10th August, 1965 at 10-30 a.m on being informed by Shri Deo Saran Singh, Chairman of the Bihar Legislative Council, that the Chief Minister wanted to see him. It is unlikely that the petitioner will concoct a false story with meticulous detail.
69. It may well to be that Shri R.A.P Sinha did not notice the petitioners presence at the residence of the Chief Minister on 10th August, 1985. He states in his affidavit that he does not know the petitioner personally. Many persons must have been present at the residence of the Chief Minister during the disturbances which were taking place to Patna in connection with the Bundh Movement on the 9th and 10th August, 1965. It may, therefore, equally well be that the Police Officer was not in a position to recollect the presence of the petitioner and the talk which he claims to have had with the Chief Minister at his residence on the 10th of August, 1965.
70. In such a situation, I am inclined to believe the allegations of the petitioner as made in his supplementary affidavit as true and hold that the Chief Minister became annoyed and enraged with the petitioner on account of his actions and activities in connection with the work of the non-gazetted employees' association or federation, especially in view of what happened on the 23rd March and 10th August, 1965.
71. Even though I have recorded a finding in favour of the petitioner in Cri. W.J.C 126 of 1965 on the question of personal animosity and animus of the Chief Minister against him, in face of the statements made in Para 8 of the counter-affidavit of Shri J.M Dutta filed on 16-12-1965, extracted above, facts relating to which cannot be examined, I cannot hold that the order of detention has been made against him necessarily because of that animus. Suspicion there is that the order may have been made mala fide but suspicion, however, strong, cannot take the place of proof. And, nothing would have been lost—and, in my opinion, no principle or prestige would have suffered — if this suspicion would have been cleared by putting in an affidavit of the Chief Minister denying the allegations of the petitioner, if really they were untrue. But in the view of law which I have taken above, this application also fails and is dismissed.
72. Dutta, J.:— The various aspects of law and facts arising in these cases have been fully discussed by my brother, Justice Untwalia and it is not necessary for me to repeat the same as I am in full agreement with the views expressed by him. I may only add that the main ground of attack of the detention orders in these cases is that these orders are vitiated by malice in fact as being the outcome of actual malicious intention on the part of the person who was responsible for passing these orders, namely, the Chief Minister, Shri K.B Sahay. It is well established that if a person exercises the power conferred upon him in bad faith and for a collateral purpose, it is an abuse of the power and is fraud upon the Statute and is not really an exercise of the power at all and the Court can interfere with such colourable exercise of power.
73. The difficulty, however, in a case in which malice in fact is alleged is in connection with the proof of such malice. As held by the Supreme Court, it is not sufficient merely to allege malice but the same has to be proved and the onus of proving malice is upon the person alleging the same. This onus is a heavy one and is evidently very difficult to discharge where the grounds and facts on basis of which the detention order has been made are not supplied and are not available to the court for reasons discussed by brother Untwalia. There may no doubt, be instances in which such malice may be established even without disclosure of the grounds on basis of which the detention order was passed but such instances are rarely to be expected. If the detenu is able to establish that the person responsible for issuing the detention order had previous enmity with him for some reasons or other or that the detenu has incurred the displeasure of such person shortly before passing of the detention order for some of his activities which do not come within the scope of R. 30 of the D.I Rules, this may, no doubt, give rise to suspicions and, in some cases strong suspicions, that the person who passed the detention order had been actuated by malice in fact. But suspicion, however, strong, does not amount to proof.
74. As pointed out by brother Untwalia, although the person who passes the order may bear from before some grudge or animosity against the detenu concerned, the passing of the detention order may have been actually made by him bona fide irrespective of such prior grudge or animosity. Thus something more is required in such a case than mere proof of some previous enmity or grudge on the part of the person or persons responsible for passing the detention order. In the present cases, the allegations of the detenus as to why the detention orders were passed against them are controverted by counter affidavits sworn by a responsible officer of the Government, namely, an Under-Secretary of the Political Department (Special Section) who, in his official capacity, had access to the relevant files.
75. According to these affidavits, the detention orders were not passed because of the facts alleged by the detenus but were passed because, on consideration of confidential reports as to the activities of the detenus which were prejudicial to the public safety and maintenance of public order, it was held that their remaining at large would be prejudicial to the public safety and maintenance of public order. Such being the position, it is apparent that even if the allegations regarding prior animosity or grudge on the part of the Chief Minister were found to be correct, the question as to whether, the detention orders were the outcome of such malice or if these are really bona fide orders can only be determined by examination of the grounds and materials on basis of which the orders were passed. As such examination by the Court is not possible for reasons discussed elaborately by brother Untwalia and no other material is available for corning to a conclusion about any of these orders being mala fide it follows that the prayer of the petitioners for declaring the detention orders as illegal cannot be sustained.
76. It is, no doubt, true that vesting of such wide powers in the executive coupled with the absence of any provision for ensuring that such powers are not abused, has the undesirable aspect that such powers may be abused for political ends or for wreaking vengeance due to previous enmity. The existence of a state of grave national emergency only has necessitated the vesting of such wide powers on the expectation that these would be actually used honestly for the purposes specified in R. 30 of the D.I Rules.
77. The conditions prevailing in such a vast country with a diversity of languages, religions, manners and customs and absence of a solid rock-bed of national integration and the existence of flssiparous tendencies among certain sections, the presence of fifth columnist and spies carrying on their activities in secrecy and darkness and other factors, have evidently been the considerations which have led to the vesting of such wide powers. At the same time, there is undoubtedly the risk of abuse of such powers in a young democracy like ours. As observed in the case of 1941-3 All ER 338 “In the Constitution of England, however, there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved”. These conditions, however, do not exist in our country and this constitutes the real danger that such wide powers may be abused for either political purposes or for purposes having little concern with those mentioned in R. 30. The Courts, however, have got to apply the law as it stands.
78. On consideration of all the above aspects and also the reasons given by brother Untwalla, I agree that all these applications must fail and order the dismissal thereof.
FJ/HGP/D.V.C
79. Applications dismissed.