1. In this case the appellant appeals against the refusal of a division bench of the High Court of Bombay to grant an order under Section 491 of the Criminal Procedure Code in nature of a writ of habeas corpus in order to secure the release of the appellant from detention under an order purporting to be made under Rule 26 of the Defence of India Rules. The appellant was arrested on August 24 last under Rule 129, and an order for his detention under Rule 26 was made by the Provincial Government on August 27. The ground on which the appellant asked for an order under Section 491 was that the Defence of India Act, 1939, and as a necessary corollary the rules made thereunder are ultra vires, since the Act purports to relate to the defence of India, and no power is conferred on the Central Legislature or upon any other Legislature in India to legislate on that subject. This is a startling contention and, if it is sound, would have even more startling consequences. It is, therefore, necessary to examine closely the facts of the case and the relevant statutory provisions which have been brought to our notice.

2. The appellant states that he was arrested by a police-officer on August 24, 1942, and detained in custody ; that on September 4 he was removed to the Thana jail; and that he learned later that an order had been made by the Bombay Government dated August 27, which is in the following terms :-

Whereas the Government of Bombay has received a report from the Commissioner of Police, Bombay, that the person known as Keshav Talpade has been arrested and committed to jail custody under Sub-rules (1) and (2) respectively, of Rule 129 of the Defence of India Rules;

And whereas the Government of Bombay is satisfied that with a view to preventing the said Keshav Talpade from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war, it to necessary to make the following order;

Now therefore in exercise of the powers conferred by Sub-rule (4) of Rule 129 read with Rule 26 of the said rules, the Government of Bombay is pleased to direct-

(a) that the said Keshav Talpade be detained until1 further orders;

(b) that he shall be detained in the Thana District Prison until any other place for his detention is determined by a competent authority under Sub-rule (5) of the said Rule 26; and

(c) that he shall for the purposes of the Security Prisoners Detention Conditions Order, 1941, be classified as a Class II security prisoner." The appellant further states that he is new detained in the Yeravda Central Jail, Poona. He denies that he has acted in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of war ; on the contrary, he says that he believes in giving unqualified aid to the efficient prosecution of war. It is not disputed that he is in fact detained under the order to which we have referred.

[After quoting Rules 26 and 129, the judgment proceeds.]

3. Both rules were made by the Central Government under powers conferred by the Defence of India Act, 1939, Section 2(1) of that Act provides that the Central Government may, by notification in the official Gazette, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. Sub-section (2) is as follows :-

Without prejudice to the generality of the powers conferred by Sub-section (1), the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters and then follow thirty-five paragraphs each of which sets out a matter or matters for which rules under the Act may be made. Apart from the general words in Sub-section (I), paragraph (x) of Sub-section (2) appears to be the only provision in the Act dealing with the apprehension and detention of suspects. Paragraph (x) is in the following terms :-

The apprehension and detention in custody of any person reasonably suspected of being of hostile origin or of having acted, acting or being about to act, in a manner prejudicial to the public safety or interest or to the defence of British India, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do, or abstain from doing, anything.

4. Counsel for the appellant contended that the Central Legislature had no power to enact the Defence of India Act, 1939, at all, because the " defence of India " is not to be found among any of the entries in Lists I, II, or III in the Seventh Schedule of the Constitution Act. This is no doubt true, and it is plain from various provisions of the Act that the executive authority of the Governor General with respect to defence extends beyond matters with respect to which the Central Legislature has power to make laws : see for example Sections 7, 8, 11 and 12 (or during the transitional period, before Part II comes into force, Sections 312 and 313). We need not enlarge on the general scheme of the Act, which is now well-known; it is sufficient to say that List I sets out a number of matters in respect of which the Central Legislature has an exclusive right of legislation, List II a list of matters in respect of which the Provincial Legislatures have a similar exclusive right, and List III a list of matters in respect of which the Central and Provincial Legislatures have a concurrent power of legislation. There are one or two entries which are indirectly connected with defence, such as entries Nos. 1 and 2 in List I and entry No. 34 in List III ; but many other entries in one or other of the three Lists would clearly enable legislation of different kinds to be enacted which would in fact be effective for the purposes of defence. Then Section 102 of the Act provides that, if the Governor General has declared by Proclamation that a grave emergency exists whereby the security of India is threatened, whether by war or internal disturbance, the Central Legislature is to have power to make laws for a Province or any part thereof with respect to any of the matters in the Provincial Legislative List. Such a Proclamation has been issued, and accordingly the Central Legislature has at the present time power to make laws with respect to any matter in any of the three Lists.

5. It is plain, we think, that entries in the Legislative Lists can be found which would justify legislation on most matters covered by the general words in Section 2(1) of the Defence of India Act as well as by the more precise provisions set out in Sub-section (2) with its thirty-five paragraphs. The draftsman of Section 2(1) appears to have adopted the language of the Emergency Powers (Defence) Act, 1939, which has been passed by Parliament, not altogether happily, seeing that with the possible exception of " the maintenance of public order ", none of the purposes which he has set out are to be found under the same description among the matters comprised in the Legislative Lists. Counsel for the appellant, however, contended that legislation purporting to be with respect to " the defence of India " as such was ultra vires the Central Legislature altogether. So far as we understood him, he was prepared to admit that many of the provisions in the Act of 1939 could be justified by one or more entries in the Legislative Lists, if they stood by themselves ; but he said that if they purported to be provisions' " with respect to the defence of India " then they were bad. He would not admit that some of the provisions in the Act might be good, even if others were bad for the reason which we have just given ; for he argued that the Act represented a single legislative scheme, every part of which was so closely interwoven with every other part that it was not possible to seven the valid from the invalid. This argument appears to us to be without any substance. If it can be shown that there are provisions in the Act of 1939 which are not covered by any of the entries in the Legislative Lists, then no doubt they will be open to challenge. It is, however, unnecessary in the present case that we should analyse for that purpose the Act and the Rules made under it since entry No. 1 of List I gives the Central Legislature in any event power to legislate with respect to preventive detention in British India for reasons of State connected with defence and certain other specified matters, and we see no reason why it is not permissible to treat any provisions with respect to this as severable from the rest of the Act and Rules even if all the latter are bad. We agree on this point with the High Court of Bombay. The High Court of Allahabad had substantially the same argument addressed to them and arrived at a similar conclusion in the case of Emperor v. Meer Singh [1941] All, 617, see especially the judgment of Braund J.

6. The Canadian and Australian cases cited on behalf of the appellant do not assist him. In those Dominions the subject of "defence" is a matter within the exclusive competence of the Dominion Parliament and the Commonwealth Parliament respectively. In the Canadian case Fort Frances Pulp and Power Co. v. Manitoba Free Press Co. [l923] A.C. 695 the question was whether Dominion legislation could be justified as a defence measure even though it trespassed on the provincial sphere, and the Privy Council returned an affirmative answer. A similar conclusion was reached in Australia : Farey v. Burvett Commonwealth L.R. 433; and therefore it is true to say that the Courts have decided that the Central Legislature has, by implication both in Canada and Australia, all the powers of legislating with respect to " defence " which Section 102 of the Constitution Act has expressly conferred on the Central Legislature in India.

7. We, therefore, reject the main argument addressed to us on behalf of the appellant, and, if there were nothing more in the appeal, we should dismiss it without further discussion. There is, however, another aspect of the case, which was not argued until the Court itself drew the attention of counsel to it; for it seemed to us that it was open to question whether Rule 26 itself in its present form was within the rule-making powers conferred by the Defence of India Act. If it is not within those powers, then it must be held void and inoperative, either in whole or in part; and orders made under it will be similarly open to challenge.

8. The power conferred on the Central Government by Section 2(2) (x) of the Act [we leave aside for the moment the more general powers in Sub-section (2)] is to make rules providing for the apprehension and detention in custody of any person reasonably suspected of being of hostile origin or of having acted, acting or being about to act, in a manner prejudicial to the public safety or interest or to the defence of British India. Under Rule 26 it is enough that the Central or Provincial Government is satisfied with respect to any particular person that his detention is necessary with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war.

The references to His Majesty's relations with foreign powers or Indian States and the maintenance of peaceful conditions in tribal areas were added to the original rule by Notification dated August 3, 1940. It will be seen that there is nothing about hostile origins. "Reasonably suspected" implies the existence of suspicions for which there is reasonable justification : but by what test is the reasonableness of the justification to be determined ? Nothing is said in Rule 26 about suspicions, reasonable or otherwise, that the person concerned has acted, is acting, or is about to act in a prejudicial manner ; those who framed it thought it sufficient to provide that the Government should be satisfied that the detention is necessary with a view to prevent the person concerned from acting in a prejudicial manner. We are compelled therefore to ask ourselves two questions :.

(1) whether "reasonably suspected" in the rule-making power means suspected on grounds which appear reasonable for the detaining authority or whether it means suspected on grounds which are in fact reasonable; and (2) whether a statutory power to make a rule for the detention of persons reasonably suspected of having acted, of acting, or of being about to act in a certain specified way justifies the making of a rule which merely empowers Government to detain a person if it is satisfied that it is necessary to do so with a view to preventing him from acting in that way or in certain other ways also.

9. We approach the consideration of these questions with the anxiety which a Court of Justice must always feel where the liberty of the subject is concerned ; but we have at the same time to remember that the country is at war and that in war as it is known to-day every Government in the world has found it necessary to arm itself with powers unthought of and often unknown in time of peace. And though it is well to remember that, as was said in one of the judgments delivered in a case before this Court some years ago, Courts of law ought to abstain from harsh and ungenerous criticism of acts done in good faith by those who bear the burden and responsibility of government, especially in times of danger and crisis, we are not on that account relieved from the duty of seeing that the executive government does not seek to exercise powers in excess of those which the Legislature has thought fit to confer upon it, however drastic and far-reaching those powers may be and however great the emergency which they are designed to meet. Nevertheless we must constantly bear in mind the purpose of the powers given, since, to use the words of Lord Macmillan in Liversidge v. Sir John Anderson [1942] A.C. 206 (p. 252).

It is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in wartime.

10. In the case just cited the question before the House of Lords was the true construction of a regulation made under the emergency powers (Defence) Act, 1939. Section l(i) of that Act is substantially in the same terms as Section 2(1) of the Defence of India Act, 1939. Section 1(2) then authorizes the making of defence regulations for a number of purposes, [as Section 2(2) of the Defence of India Act does], and among them

" for the detention of persons whose detention appears to the Secretary of State to be expedient in the intetests of public safety or the defence of the realm,"

Under this power a regulation was made in the following terms :

If the Secretary of State has reasonable causle to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.

The rest of the regulation [Reg. 18B of the Defence (General) Regulations, 1939] contains provisions covering the same ground as the latter part of Rule 26 of the Defence of India Rules, and there can be no doubt that the draftsman of both the indian act and rules had the english act and rules before him. But then is one very striking difference. Lord Macmillan, after quoting the terms of the regulation-making power on the subject of detention which has been cited above, observes (p. 252) :

There could be no clearer evidence of the intention of Parliament to authorize the abrogation in the public interest and at the absolute discretion of the Secretary of State of the ordinary law affecting the liberty of the subject. A perusal of the whole act and of the subsequent Act of 1940 is sufficient to satisfy any reader of the extraordinary interferences with the citizen's most cherished rights of person and property which, in the view of Parliament, may be necessary and proper in the present grave national' danger. In considering the interpretation of the regulation authorizing the Secretary of State to make detention orders I therefore bear in mind that Parliament expressly contemplated that he should by regulation be empowered to do so at his absolute discretion.... In the next place it is relevant to consider to whom the emergency power of detention is confined. The statute has authorized it to be conferred on a Secretary of State, one of the high officers of State who, by reason of his position, is entitled to public confidence in his capacity and integrity, who is answerable to Parliament for his conduct in office and who has access to exclusive sources of information in a question of interpreting the scope of a power it is obvious that a wide discretionary power may more readily be inferred to have been confined to one who has high authority and grave responsibility.

Other noble Lords who took part in the case also emphasized the significance of the language which Parliament had used in giving the regulation-making power. Thus Lord Maugham (p. 219) :

There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with, and equally no presumption that the detention must not be made to depend (as the terms of the Act indeed suggest) on the unchallengeable opinion of the Secretary of State;

and see per Lord Romer at pp. 281-2. In these circumstances the House of Lords, with the exception only of Lord Atkin, who delivered a dissenting judgment, found no difficulty in holding that a regulation made under the Act giving the Home Secretary power to detain any person whom he has reasonable cause to believe to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety and so on only required the Secretary of State himself to be reasonably satisfied. Lord Macmillan puts the question in this way (p. 248) :

Does this (the Regulation) mean that the Secretary of State must have such cause of belief regarding the relevant facts as a Court of law would hold sufficient to induce belief in the mind of any ordinary reasonable man ? Or does it mean that he must have such cause of belief as he himself deems to be reasonable ? To require that a cause of belief shall be reasonable necessarily implies a reference to some standard of reasonableness. Is the standard of reasonableness which must be satisfied an impersonal standard independent of the Secretary of State's own mind, or is it the personal standard of what the Secretary of State himself deems reasonable ? Between these two readings there is a fundamental difference in legal effect. In the former case the reasonableness of the cause which the Secretary of State had - for his belief may, if challenged, be examined by a court of law in order to determine whether he had such cause of belief as would satisfy the ordinary reasonable man and to enable the court to adjudicate on this question there must be disclosed to it the facts and circumstances which the Secretary of State had before him in arriving at his belief. In the latter case it is for the Secretary of State alone to decide in the form of his own conscience whether he has a reasonable cause of belief and he cannot, if he has acted in good faith, be called on to disclose to anyone the facts and circumstances which have induced his belief or to satisfy anyone but himself that these facts and circumstances constituted a reasonable cause of belief.

11. It may be that the draftsman of the Indian Act and Rules made thereunder intended that Section 2(2) (x) and Rule 26 should have an effect similar to that which the House of Lords have now attributed to the Emergency Powers (Defence) Act, 1939, and Regulation 18B. It may be so; but he has used different language. There is in the Indian Act no trace of an intention that any particular person or authority should exercise the power of detention. On the contrary, the selection of those who are to exercise this most important and exceptional power is left to be decided by the Rules themselves (i.e., by the executive which makes the rules). The vast area of the Indian sub-continent, the wholly different problems of government which are to be found there, and the existence of eleven provinces in addition to the Central Government, besides other subordinate governing authorities, no doubt made it a more difficult task to select in advance an individual or individuals in whom these powers might be vested, as was done in the United Kingdom ; but, so far as we can see, there is nothing in the Act to prevent these powers being vested in any person or body, however insignificant or subordinate. It is one thing to confer a power to make a regulation empowering the Home Secretary to detain any person if he thinks it expedient to do so for a number of specified reasons; it is another thing altogether to confer a similar power on any person whom the Central Government may by rule choose to select, or to whom the Central Government may by rule give powers for the purpose.

12. We are therefore left without any such guidance as the House of Lords had in the Liversides case when we find ourselves called on to decide whether it is enough that the authority which is to be given the power of detention under the rules should satisfy itself that the suspicions which it entertains are reasonable. If the words in Section 2(2) (x) were "the apprehension and detention in custody of any person suspected by the apprehending or detaining authority on grounds which appear to them to be reasonable", no difficulty would have arisen ; but no such formula is used. But, even if we are to read the words as though they ran " the apprehension and detention in custody of any person reasonably suspected by the apprehending or detaining authority," that does not seem to us necessarily to imply that the. authority's own belief in the reasonableness of their suspicions is not open to challenge. It might well be argued that since the apprehending or detaining authority could be any person in India whom the Central Government chose to select when it framed its rules, it can never have been intended that any person could be detained without trial and by mere executive act unless there were reasonable grounds in fact for suspecting that he had brought himself within the scope of paragraph (x).

13. It will be said that the Central Government must be trusted only to make any rules vesting this power in responsible persons or authorities. The Central Government has in fact vested them in itself and in the Provincial Governments, that is to say, the Governor-General-in-Council and the Governor and those who advise him, whether Ministers or others. In the United Kingdom the number of persons detained under Regulation 18B, according to public statements made from time to time, has not been so large as to make it impossible for the Secretary of State to consider personally each case.

We may take judicial notice of the fact that the numbers in India on the other hand have been, comparatively speaking, very large ; and it is difficult to suppose that the Governor-General-in-Council or the Governors with their advisers have always been able to give their personal attention to each case ; so that the consideration of the facts must have been left in very many, instances, to put it no higher, to officials, sometimes no doubt highly placed, but not necessarily so. In these circumstances those in whom the legal right to detain is vested might not always find it easy to form an opinion of their own whether the person apprehended or detained is reasonably suspected or not. If this be so, it would certainly seem that the more natural construction of the words of paragraph (x) is that there must be suspicions which are reasonable in fact and not merely suspicions which some as yet unspecified person or authority might regard as reasonable.

14. We do not however think it necessary to express a final opinion on the difficult point of construction involved in the first of the two questions we have propounded, in view of the answer which we find ourselves compelled to give to the second. The second question was whether a statutory power to make a rule for the detention of persons reasonably suspected of having acted, or acting or being about to act in a manner prejudicial to certain specified matters justifies the making of a rule which empowers Government to detain a person if it is satisfied that it is necessary to do so with a view to prevent him from acting in a manner prejudicial to any of the matters so specified, or to any of certain other specified matters as well. We need hardly point out the divergence between Rule 26 and paragraph (x) of Section 2(2) of the Act, which is clearly intended to be the authority for making the rule. The Act authorizes the making of a rule for the detention of persons reasonably suspected of certain things; the rule would enable the Central Government or any Provincial Government to detain a person about whom it need have no suspicions, reasonable or unreasonable, that he has acted, is acting, or is about to act in any prejudicial manner at all. The Government has only to be satisfied that with a view to preventing him from acting in a particular way it is necessary to detain him. The Government may come to the conclusion that it would be wiser to take no risks, and may therefore subject a person to preventive detention against whom there is no evidence or reasonable suspicion of past or present prejudicial acts, or of any actual intention of acting prejudicially; and Rule 26 gives it power to do so. We can find nothing in paragraph (x) which justifies a rule in such terms. The Legislature might have conferred upon the Central Government the power of making a rule as wide as this, but we are clear that it has not yet done so. A rule made under existing statutory powers can only confer a right to detain those persons who fall within the scope of paragraph (x), that is, persons reasonably suspected of the things mentioned in that paragraph. There is no power to detain a person because the Government thinks that he may do something hereafter or because it may think that he is a man likely to do it; he must be a person about whom suspicions of the kind mentioned in the paragraph are reasonably entertained. The Legislature having set out in plain and unambiguous language in paragraph (x) the scope of the rules which may be made providing for apprehension and detention in custody it is not permissible to pray in aid the more general words in Section 2(1) in order to justify a rule which so plainly goes beyond the limits of paragraph (x) ; though if paragraph (x) were not in the Act at all, perhaps different considerations might apply (see Rex v. Halliday [1917] A.C. 260). It may be that the Government has only made detention orders in the case of persons who are reasonably suspected in the manner required by paragraph (x), but that is immaterial; the question is not what the Government have in fact done under the rule, but what the rule authorizes them to do ; and in our opinion it is impossible so to interpret the rule as to restrict its operation to the suspected persons of paragraph (x). We are compelled therefore to hold that Rule 26 in its present form goes beyond the rule-making powers which the Legislature has thought fit to confer upon the Central Government and is for that reason invalid.

15. We have already drawn attention to the addition made to the rule in 1940,. which empowers Government to detain persons with a view to preventing them from acting in a manner prejudicial to

" His Majesty's relations with foreign powers or Indian States and the maintenance of peaceful conditions in tribal areas."

These additional words are clearly suggested by entry No. 1 in List I of the Legislative Lists, which authorizes the Central Legislature to legislate with respect to preventive detention for purposes connected with defence and the other matters which we have just mentioned. There can be no doubt therefore that it was competent for the Central Legislature to confer a power to make rules with respect to preventive detention in connection with all these matters ; but it seems to us very doubtful whether it can as yet be said to have done so. It has conferred the power to make rules with respect to detention for purposes connected with defence ; and from the express mention of defence alone in paragraph (x), it seems to follow that no power has been conferred to make rules with respect to detention for purposes connect-ed with these other matters as such, which it is plain that the language of entry No. 1 of List I regards as in a separate category from defence. We are therefore disposed to think that Rule 26 would be in any event beyond the rule-making power which has been conferred, so far as regards the addition made to it by the Notification dated August 3, 1940; but having regard however to the view which we take of the rule as a whole, it is unnecessary for us to consider whether or to what extent the addition is severable from the rest of the rule.

15. We think it right to refer to certain observations made by one of the learned Judges (Chagla J.) in the Court below. He says this (p. 39 ante):

As I have pointed out, there is no doubt that it was competent to the Government of Bombay to detain the applicant on the ground that his detention was necessary inasmuch as he was acting in a manner prejudicial to the defence of British India and also for the maintenance of public order. It may be that the other two grounds given in the order are not justified by any of the items in the Seventh Schedule. But if the two or even one of the two grounds are justified as coming within the competence of the Indian Legislature, I do not think it makes any difference to the validity of the order if the Government of Bombay proceed to give further reasons which are not well founded.

16. We doubt whether this is a correct statement of the law. If a detaining authority give four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them. We confess that an order in the terms of that under which the appellant in the present case has been detained fills us with uneasiness. It recites that the Government of Bombay

" is satisfied that, with a view to preventing the said Keshav Talpade from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war,"

it is necessary to make an order of detention against him. This reads like a mere mechanical recital of the language of Rule 26. We do not know the evidence which persuaded the Government of Bombay that it was necessary to prevent the appellant from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war ; but we may be forgiven for wondering whether a person who is described as an authorized petition writer on the Insolvency side of the Bombay High Court was really as dangerous a character as the recital of all these four grounds in the order of detention suggests. The order does nothing to remove the apprehension we have already expressed that in many cases the persons in whom this grave power is vested may have had no opportunity of applying their minds to the facts of every case which cornea before them.

17. Our attention was drawn in the course of the argument to Section 16 of the Act. Section 16(2) provides

"no order made in exercise of any power conferred by or under this Act shall be called in question in any Court"

. We are clearly of opinion that where the order is made under or by virtue of a rule which is invalid and therefore of no force or effect, the order is a nullity and Section 16(2) has no application.

18. We recognize that our decision may be a cause of inconvenience and possibly of embarrassment, even though temporarily, to the executive authority. We regret that this should be' so, especially in these difficult times; but we venture to express an earnest hope that greater care may be taken hereafter to secure that powers of this extraordinary kind which may affect, and indeed have affected, the liberty of so many of the King's subjects in India, may be defined with greater precision and exactitude, so as to reduce to as small a compass as possible the risk that persons may find themselves apprehended and detained without legal warrant.

19. The appeal will be allowed and the case remitted to the High Court of Bombay with a direction to the Court to dispose of the appellant's application in the light of the observations made in our judgment.