1. These are 12 applications by persons detained by the Provincial Government under Section 2 of the Central Provinces and Berar Maintenance of Public Order Act, 1946 (Act No. 15 (XV) of 1946). This Act was brought into force on 21st November 1946 and is to remain in force for one year from that date. The detenus challenge their detention on various grounds and the present applications being under Section 491 of the Cr PC are in the nature of petitions for issue of a writ of habeas corpus.
2. The first ground on which detention is challenged is that the Act as a whole or at least in part is ultra vires the Provincial Legislature. It is convenient before discussing this question to analyse this Act to find out what its pith and substance is. The operative part is contained in S. 2(1) which reads thus:
“The Provincial Government if satisfied that any person is acting in a manner prejudicial to the public safety, order, or tranquillity, or is fomenting or inciting strikes with intent to cause or prolong unrest among any group or groups of employees may if it considers such order necessary make an order (a) directing that he he detained.”
3. Under sub-section (2) of this section, District Magistrates' have been invested with similar powers but under 9.8 their power to detain persons is limited to a period of 15 days. The Provincial Government under the same section can detain a person for 3 months. Under S. 5 the detenu is communicated the grounds on which he is detained to enable him to make representations to the Provincial Government against his detention. Under S. 11 there is an indemnity for and protection of action taken bona fide under the Act. Under S. 12 the application of other laws is declared to be not barred. It is convenient to reproduce S. 12 because some argument was based upon it. Section 12 reads thus:
“The provisions of this Act shall be in addition to and not in derogation of any other Act, Ordinance or Regulation for the time being in force.”
4. The detenus were arrested and lodged in the jail and were duly furnished the grounds of their detention. These grounds of detention have been tendered in evidence by the detenus and they have sworn affidavits either to deny or to explain the circumstances mentioned in the grounds of detention. It may be said here that no material other than these grounds has been adverted to by the Provincial Government and in fact the affidavit of the Chief Secretary says that the grounds of detention clearly make out a case for detaining these persons. The question of the sufficiency of the grounds on which detention has been ordered in these cases will be taken up later. The first question is, is the Act ultra vires the Provincial Legislature? The argument on behalf of detenus is that S. 2 as well as the preamble of the Act clearly show that the Act was intended to prevent strikes and this makes the Act fall within the legislative powers granted by item 29 in List III of the Seventh Schedule to the Government of India Act, 1935. Entry No. 20 of the concurrent legislative list deals with “trade unions and industrial and labour disputes.” Since the carrying on of a strike in a lawful manner is permitted by the Trade Unions Act and the Trade Disputes Act, the impugned Act is repugnant to existing Indian Law and under Section 107 of the Constitution Act is void because no sanction of the Governor-General was admittedly obtained. It is contended that the impugned Act seeks to negative what the Trade Disputes Act permits, and in so far as the present legislation is contrary to the existing provisions of the two Acts mentioned above, it is void.
5. The argument on behalf of the Provincial Government is that the power to enact the impugned Act is to be found in entry No. 1 of List II which runs thus:
“Preventive detention for reasons connected with the maintenance of the public order persons subject to such detention.”
6. It is also contended that the Act also falls within the general heading “Public Order” in the same entry. Reliance is also placed on Section 12 of the impugned Act which speaks of this Act as being in addition to the existing Indian Law.
7. It is convenient to begin with S. 12. If the legislative competence to enact the present law be wanting, the Act must be regarded as void. Similarly if repugnance is established between the present Act and existing Acts of the Indian Legislature, the enacting of Section 12 would not save the impugned legislation. Section 12 is merely an expression of opinion put in ex abundanti cautela so that no dispute as to the intention of the Legislature may arise. The question of the validity of the impugned Act, however, will have to be judged on its own merits and S. 12 would not help if the Act is found to be ultra vires on any ground. Section 12 of the Act, therefore, is in-conclusive and ineffective in so far as the validity of the Act or any of its provision is concerned.
8. Whenever the powers of a Legislature (whether central or provincial) are brought into question the correct method of approach is to look to the Constitution Act and to find out what it provides and what it prohibits it is then necessary to examine the pith and substance of the impugned legislation critically to find out whether all that it provides falls within the powers granted by the Constitution Act and then to find out whether it transgresses any prohibition contained therein. Their Lordships of the Privy Council have clearly indicated this in the leading case in (1878) 3 A.C 8891 at pp. 904, 905 in the following words:
“The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (In which category would, of course be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.”
9. The petitioners contended that the field in which the impugned Act lies is clearly indicated by the preamble and the title of the Act. They urge that the intention of the Legislature and the scope of the Act must be gathered from the preamble and emphasis is laid by them on the words “the prevention of the fomenting or incitement to strikes in the Central Provinces and Berar” which are to be found in the preamble as well as the title of the Act. Since the subject of strikes relates to Trade Unions and Industrial and labour disputes, the Act, according to the petitioners, seeks to legislate upon the field indicated by item No. 29 in the concurrent legislative list and in so far as the field as already occupied by the Trade Disputes Act, it is void. It is true that the preamble of a statute is the key to its interpretation but the intention of the legislature is not necessarilly to be gathered from the preamble taken by itself. In fact the intention of the Legislature can only be gathered from the Act taken as a whole. In the leading case in (1828) 108 E.R 8632 at p. 870 Lord Tenterden, C.J said:
“In construing Acts of Parliament we are to look not only at the language of the preamble, or of any particular clause, but at the language of the whole Act and if we find in the preamble, or in any particular clause, an expression not so large and extensive in its import as those used in other parts of the Act, and upon a view of the whole Act we can collect, from the more large and extensive expressions used in other party, the real intention of the Legislature, it is our duty to give effect to the larger expressions, notwithstanding the phrases of less extensive import in the preamble, or in any particular clause”.
10. These observations apply equally to those Acts where the preamble goes further than the Act itself.
11. In the operative portion of the present Act the detention is for two purposes. A person can be detained if a person is acting in a manner prejudicial to public safety, order or tranquillity, and in connection with strikes it is said that he may also be detained if Provincial Government is satisfied that the fomenting or inciting of strikes is with the intention of causing or prolonging unrest amongst any group or groups of employees. Now the entry No. 1 in List II allows preventive detention to be ordered, subject however to the qualifications that the preventive detention must be “for the reasons connected with the maintenance of public order”. The short question, therefore, is whether the detention which is authorised under the impugned Act is for reasons connected with the maintenance of public order.
12. Section 2(1) of the impugned Act is divisible into two parts. The first part definitely falls within the powers granted to the Legislature by entry No. 1. That part provides that a person may be detained if he is acting in a manner prejudicial to the public safety, order or tranquillity. Public safety and public tranquillity are inextricably bound up with the existence of public order. If public tranquillity and safety are disturbed the necessary consequence would be the breach of public peace and order. There can be no doubt that the first part of Section 2(1) of the impugned Act is entirely within the competence of the Provincial Legislature.
13. The only dispute really is with regard to the second part. Certain considerations must be borne in mind in approaching this subject. It is well known that in interpreting a Constitution Act a wide meaning should be given to the words which confer on a Legislature the power to legislate on certain topics, and within the ambit of the words the most sovereign powers must be understood to be given to the Legislature. The entries in the Constitution Act have ways been given a large and liberal interpretation. The reason is manifest. The allocation of the subjects in the list is not by way of scientific definitions but by way of a mere simplex enumeratio of broad categories. As said by Jayakar, J. in 1939 F.C.R 183 at p. 96.
“That the provisions of an Act like the Government of India Act, 1935, should not be cut down by a narrow and technical construction, but considering the magnitude of the subjects with which it purports to deal in very few words, should be given a large and liberal interpretation……….”
14. See also, 1930 A.C 1244 at pp. 136 and 137. It is also to be borne in mind that the legislative lists in Sch. 7, Constitution Act, are not always mutually exclusive. In spite of the fact that an effort has been made to keep all the three lists distinct, there is an overlapping of the jurisdictions conferred by the rival lists. This was held in P.C Appeal No. 19 of 1946, D/- 11-2-19475 by their Lordships in the following terms:
“It is not possible to make so clean a cut between the powers of the various legislatures: they are bound to overlap from time to time.”
15. Their Lordships also cite with approval the observations of Gwyer, C.J in 1940 F.C.R 1886 at p. 201 which read:
“It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned Statute is examined to ascertain its “pith and substance”, or its “true nature and character” for the purpose of determining whether it is legislation with respect to matters in this list or in that…
16. Again in the same case their Lordships of the Privy Council say:
“Subjects must still overlap and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficient legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with.
Thirdly, the extent of the invasion by the Provinces into subjects enumerated in the Federal List has to be considered. No doubt it is an important matter, not as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into Federal territory as to show that its true nature is not concerned with provincial matters, But the question is not, has it trespassed more or less, but is the trespass, whatever it be such as to show that the pith and substance of the impugned Act is not money-lending but promissory notes or banking? Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content.
This view pieces the precedence according to the three lists in its proper perspective.
No doubt where they come in conflict List I has priority over Lists III and II and List III has priority over List II but, the question still remains priority in what respect? Does the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may inc dentally affect any item in its list or in each case has one to consider what the substance of an Act is aid whatever its ancillary effect, attribute it to the appropriate list according to its true character? In their Lordships' opinion the latter is the true view.”
17. It will be noticed that it is not the fomenting or inciting of a strike of any kind which is hit by Section 2(1) of the impugned Act. If the Provincial Legislature had intended that the labourers and employees of Trade Unions should not go on a strike at all the Act may conceivably be said to come into clash with existing Indian legislation. The emphasis in the present Act is not so much on strikes as such as on the maintenance of public order. A person is liable to detention who in the opinion of the Provincial Government is fomenting or inciting strikes with intent to cause or prolong unrest amongst any group or groups of employees. The creation of unrest amongst labourers is something more than the carrying on of bona fide trade disputes. The promoters of bona fide trade disputes are not intended to be hit; nor is the person promoting a legal strike without causing unrest among employees liable to detention. It is the causing or prolonging of unrest among workmen and employees which is the real reason of the detention. If a large and liberal interpretation is placed upon entry No. 1 it cannot be gainsaid that the causing or prolonging of unrest is a reason at least connected with the maintenance of public order. The entry itself speaks not of the maintenance of public order simpliciter but of public detention for reasons connected with the maintenance of public order. The phraseology used in the entry is extensive in its meaning and the Legislature has been given wide powers to decide what is connected with the maintenance of public order in a particular area. The pith and substance of the impugned Act is preventive detention for reasons connected with the maintenance of public order and not industrial and labour disputes.
18. The present legislation cannot be described as colourable nor can the Legislature be said to be doing indirectly what it cannot do directly. It is obvious that the Provincial Legislature cannot repeal the Trade Unions Act and the Trade Disputes Act unless the Governor. General or His Majesty signify their assent, nor can it frame any laws which are repugnant to these enactments. In our opinion the enacting of the present Act does not indirectly do any of these two things. It does not trench upon the field occupied by the Indian Legislature. The present Act has for its purpose the maintenance of public order and though incidentally it touches upon the subject of strikes and trade disputes it does so merely because strikes promoted solely for the sake of causing unrest among workman lead directly or indirectly to a subversion of public order.
19. Since the entire subject of the present Act falls within entry 1 of List II. Sch. 7, Constitution Act, no question of repugnancy either directly or indirectly arises. No sanction of the Governor-General was necessary because all the powers for the enactment of the impugned Act are to be found in the Provincial legislative list and it is not necessary to go to the concurrent legislative list at all. If on an examination of the pith and substance of the impugned legislation it is found to fall fully within the Provincial legislative list, it does not matter if it incidentally touches some matters included in the first and the third list. See P.C Appeal No. 13 of 1940, D/- 5-2-1947.7
20. The learned Advocate-General further argues that the Trade Unions Act and the Trade Disputes Act do not apply to the strikes which have been incited by the present petitioners because they do not relate to any trade or industry. According to him these so called trade unions are not trade unions in the strict sense of the term, as defined in the Trade Unions Act because the persons who have registered themselves are not employed in any trade or industry. According to him the provisions of Trade Unions Act and Sections 3, 15 and 16 of the Trade Disputes Act do not, therefore, apply to the petitioners and they cannot challenge the validity of the impugned Act. It was urged on behalf of the petitioners that the strikers belong to groups which in most cases hold certificates of registration as trade unions under the Trade Unions Act and that S. 10 of that Act prohibits the Court from enquiring as to whether they are duly registered or not. It is urged that so long as the certificate is not cancelled the right of the holders of the certificate to carry on a trade dispute and a legal strike cannot be questioned inasmuch as the Trade Disputes Act applies to their case; It is urged that the petitioners thus have a right to challenge the validity of the present legislation by the Provincial Government.
21. There is a complete misapprehension as to the manner in which the legality of an Act of the Provincial Legislature is to be challenged. The legality of the impugned Act or its repugnancy to existing Indian Law is not to be judged on the ground of the applicability of existing Indian Law to any special case. We have indicated above the correct method of approach to such a problem. The Trade Disputes Act provides for the regulating of trade disputes and strikes. Certain strikes are declared illegal and made punishable under the Act. The present Act deals with the incitement of a strike not with a view to carrying on of genuine trade disputes but with the ulterior motive of creating unrest and turmoil so as to affect public order. We have shown above that there is no repugnancy between the two Acts and the whole of the impugned Act lies within the powers granted to the Provincial legislature by entry No. I of List II. It is, therefore not necessary for us to enter too largely into a discussion as to whether we are entitled to question the registration of these bodies of men under the Trade Unions Act. Prima facie, the certificate of registration would be conclusive evidence that they are trade unions duly registered. We, however, express no definite opinion on this matter because it is not germane to the present discussion.
22. The argument of Mr. Hazarnavis that the legislative powers of the Provincial Legislature are subject to the special responsibilities of the Governor under Section 52 of the Government of India Act, 1935, may be disposed of here. The argument is that the special responsibilities under this section embrace “the prevention of any grave menace to the peace or tranquillity of the province or any part thereof” and that the Governor could not delegate these functions to the Legislature to legislate upon. It was contended that the legislative powers granted by entry No. I of List II must be read as being subject to the powers of the Governor and that to that extent the Governor alone could legislate upon these topics. The argument is intricate and somewhat difficult to follow. The Legislature has been given plenary powers on all the topics contained in the List. The special responsibilities of the Governor really arise in the ministerial field when executive powers are either abused or not used by the appropriate authority. The manner in which the Governor exercises his special responsibility is indicated in the Instrument of Instructions. The special responsibilities of the Governor do not ordinarily impinge upon the legislative functions of the Legislature so as to trench upon the legislative list. The Governor has an overriding executive power under S. 52 which he can exercise in his individual judgment and one of the aspects of it is the maintenance of public order. He can take action in his individual judgment and even contrary to the advice of his ministers. Under Section 60 of the old Government of India Act, the Governor could overrule his Executive Council in this matter. The same obtains in a large measure under Section 52 of the present Constitution Act. The Governor not having chosen to exercise his individual responsibilities, it is not open to the Court to sit in judgment over him. Similarly, the argument that the Governor ought not to have assented to the bill which deals with matters within the sphere of his special responsibilities is not for a Court of law to investigate. The Courts are precluded from-such an enquiry by Section 53(2) of the Government of India Act, 1935.
23. In our opinion none of the grounds urged to challenge the authority of the impugned Act are effective. We, therefore, hold that the Act is intra vires and is not repugnant to the Trade Unions Act or the Trade Disputes Act.
24. It was next urged on behalf of the petitioners that the orders were on their face defective as it is the Provincial Government which has been shown to have taken action. It was contended that there was nothing to show that the Governor had acted as required by S. 2(1) of the present Act, read with Section 3(43) of the General Clauses Act. No presumption, it was argued, can be drawn because Section 59(1) of the Constitution Act, has been infringed. According to this section, all orders of the Government of the province have to be expressed in the name of Governor and the impugned orders do not say so. It was submitted that these orders cannot be taken to be the orders of the Governor, nor has any affidavit been sworn in this behalf.
25. As to the affidavit it is clear to us that as there was no allegation in the petitions that the Governor had not passed these orders, there was no need for the Crown to make any statement on the point in their return. We have been assured by the learned Advocate-General that the final orders were in fact passed by His Excellency the Governor in each case. But that apart, the orders are authenticated by the signature of the Chief Secretary and shown to be “By order of the Governor.” The authentication fol-lows the business rule correctly. Under Section 59(2) of the Constitution Act, this authentication is sufficient and the validity of the orders cannot be called in question on the ground that orders were not made by the Governor. Against this, it was contended that sub-s. (1) of S. 59 speaks of the recitals in an order or instrument, and sub-s. (2) of that section speaks of the authentication and that the condition precedent to the application of the bar under sub-s. (2) of S. 59 is that the order must show on its face that it was made by the Governor. Reference was also made to S. 49(1) which it was pointed out provides that the executive authority of the province shall be exercised by the Governor in the name of His Majesty. It was argued that S. 59(1) is mandatory and must be followed and that the petitioners were entitled to challenge the orders.
26. Section 49(1) deals with the revesting of executive authority in relation to a province resumed by His Majesty under S. 2, and, in our opinion, is not relevant in this context, Under S. 49(1), the Provincial Legislature may invest a subordinate authority with such functions which it deems proper. In our opinion when the General Clauses Act has already defined the words “Provincial Government” and the orders use this phraseology, the meaning given to these words in the General Clauses Act must equally be held applicable to the same words used in the orders. In view of the fact that the Act uses the terms which have special meaning given to them for all purposes by the General Clauses Act we are entitled to presume, till the contrary is established, that the correct authority named in the Act had in fact passed the orders. Omnia praesumuntur rite esse acta. We have no difficulty in applying this presumption in the present cases as we have been assured by the learned Advocate-General that the orders were in fact passed by His Excellency the Governor in each of these cases and that if this fact had been challenged earlier, an affidavit would have been filed in reply. In our opinion it is unnecessary in view of this assurance to decide whether S. 59(1) is mandatory or merely directory and further whether that sub-section is a condition precedent to the application of the bar contained in the sub-section which follows it. There is yet another answer to this argument. Section 59(1), Constitution Act, deals with the normal executive activities of Government which are not covered by statute. It does not purport to limit the scope and extent of any special enactment passed by a competent Legislature and within its province.
27. The impugned Act has also purported to confer these powers of detention upon the District Magistrate, and there can be little doubt that the District Magistrate can exercise them in the same way as District Magistrates now take preventive action under Section 144 and other sections of the Cr PC. The District Magistrate can make the orders and they would be promulgated in the manner normal in such cases. Equally the Legislature can, provided the measure is within its competence, invest any other person or body with this authority. In the present case it has chosen to invest the Provincial Government with these powers, and that being so the Provincial Government is the proper body to make these orders of detention. It matters little, so far as the present cases are concerned, whether the Provincial Government means the Cabinet, or the Ministry, or a particular Minister, or His Excellency the Governor, because the order purports to have been made by the Provincial Government and the detenus have not shown that the authority which made this order is not the authority invested with the requisite powers under the Act. The order is valid on the face of it, and in summary proceedings of this nature where the burden is on the detenu it is not permissible for us to presume that the order is invalid. There must be material before us which will lead us to infer the contrary. There is no such material. Not one of the affidavits states who actually passed these orders. Not one of them states that it was not the authority contemplated by the Act.
28. As regards the promulgation of the order it has been promulgated by order of the Governor and this is the normal means of promulgating all orders of Government made either at ministerial or gubernatorial level.
29. The broad question was next debated as to whether we are at liberty to question the reasons on which the Provincial Government has acted in these cases. We are relieved from the duty of deciding this matter in these cases because both sides have placed before us the material on which detention had been ordered in these cases. Since no secret was made of these reasons nor was any claim of privilege advanced on behalf of the Crown we do not consider it necessary to decide this vexed question. There are certain differences between emergency legislation passed during the period of war and legislation passed during times of peace. Ordinarily the action of the executive is always open to challenge in a Court of law. We express no definite opinion on this matter because as we have said Government has already put the grounds of detention into the hands of these detenus under S. 5 of the Act and has stated in this Court that these, in fact, were the grounds on which action was taken. In view of the fact that the material is already before us for scrutiny, we see no reason to enter into a discussion of the rights and privileges of the detenus vis a vis the Provincial Government. Similarly in these cases we do not see any necessity to call for any evidence in support of the affidavits filed either by the Provincial Government or the detenus. Section 491 of the Cr PC, lays down a summary procedure to secure the liberty of the subject. It does not require that Courts should enter upon lengthy enquiries into allegations of fact. We express no definite opinion as to the powers of this Court to order an enquiry. We are, however satisfied that in these cases no enquiry in fact is necessary. The material placed before us is sufficient for us to judge whether there has been any fraud upon the statute or not, because if there is no fraud, the detention, (the Act being valid) cannot be challenged. Ordinarily it is for the Provincial Government to satisfy itself as to the sufficiency of the material. Beyond this we do not express any opinion on this point.
30. There was considerable argument as to whether detention could be ordered on the basis of past actions. The words in S. 2 of the Act are “is acting.” These words were compared with those used in R. 129 of the Defence of India Rules to show that the latter enactment clearly spoke of past actions. It was argued that the present Act must be held applicable only to activity of the kind prohibited, if indulged in after the date of the passing of the Act.
31. Since Act 15(XV) of 1946 seeks to restrict the liberty of the subject it must be strictly construed. It is an accepted rule of interpretation that the construction which secures the liberty of the subject is to be preferred to one which curtails it. In Maxwell's Interpretation of Statute Edn. 9, p. 289 the following passage occurs:
“Statutes which encroach on the rights of the subject, whether as regards person or property, are similarly subject to a strict construction in the sense before explained. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights: Lord Wethury : (1863) 10 H.L.C 3678 at p. 386, (1932) 1 K.B 688,9 (1884) 12 Q.B.D 224,10 (1935) 2 K.B 25711 at p. 264.”
32. If it was intended that the detention could be ordered on the basis of past actions nothing was easier than to say this. There are no words which make this Act retrospective so as to enable past actions to be visited with detention. The Act uses the words “is acting” and since an Act operates from the time it becomes law some activity of the type contemplated by the Act must be shown to have continued after the Act came into force. This, in our opinion, is clearly the meaning behind these words. There would otherwise be no locus poemtentiae for any person, however much he may desire to act in accordance with law. Section 2(1) of the Act requires “satisfaction” of the fact that the person concerned “is acting” in one or other of the ways specified. That imports continuity of action sustained on and after the passing of the Act. It is not enough that he should have acted in the past. There must be material to indicate that he continued so to act after the Act was passed and that, but for his apprehension, he would be likely to go on doing so. As there was no material to indicate this in three of the cases we directed the release of those detenus on the dates of argument. The material furnished by Governments in those cases showed that the satisfaction was as regards past acts and there was nothing to indicate that the acts continued after the date of the Act. The detenus denied that there was such action after the Act. The affidavits of Government did not counter this.
33. The orders of detention use the language “has been acting”, “has been inciting” and “has been fomenting”. It was argued that they are defective for the reasons set out above. But here we think it necessary to construe the real meaning of the orders in the same manner as one considers the pith and substance of an Act. There is no need to copy the words of a statute slavishly in the order provided its essentials are complied with. Indeed slavish rubber-stamp orders have been condemned by this Court in the past. In the present case each detenue was in custody at the date when the orders were made by the Provincial Government. It is obvious that the language “is acting” would have been inappropriate—and that was one of the objections taken. It was argued that as the detenus were in jail when the orders were passed they could not have been acting in the manner contemplated by the Act at the date when the orders were made. In our opinion the orders, therefore, quite properly use the phrase “has been acting” etc., in place of the words “is acting”. But of course what we have to see is whether the orders convey the sense of continuity at the time which the Act requires. We think they do in the cases which now remain.
34. In each of these cases the order sets out the satisfaction of the Provincial Government regarding the fact of acting in one or other of the manners contemplated by the Act and proceeds to enumerate in brief the ‘actings’. The bulk of the acts which are said to constitute the “acting” consist of past acts, but in each case (except the three in which we have passed orders of release) there is included some overt act done after 21-11-1946 on which date the Act came into force. The series of acts so set forth convey the sense of continuity which the Act requires and the inclusion of an overt act done after 21-11-1946 imports that the said acting was continued after the datum line. These statements, combined with the reference in the order to S. 2(1)(a) of the Act, are sufficient to show that the “satisfaction” relates to a continuous course of conduct which was persisted in after the coming into force of the Act.
35. Now, we have already held that there were no powers of detention in respect of past acts—by which we mean acts committed before 21-11-1946, but as we have already remarked references to such acts are relevant to disclose continuity of action. It is true that up to 21-11-1946 persistence in such acts would not have led to detention. Up to that data such a course of conduct was unobjectionable from the point of view of the present Act — (we say from the point of view of the present Act with deliberate intent because we do not mean to imply that none of the acts complained of contravene other laws. But with such other laws, if there be any, we are not concerned). If, therefore, the “objectionable” conduct ceased on or before. 20-11-1946 there would be no power of detention. But if the same conduct were to be persisted in on or after 21-11-1946 then at once that which was “unobjectionable” before that date would immediately become “objectionable” and the necessary continuity of conduct being present the “offender” would be liable to detention under the Act. We now turn to the individual cases.
36. In Miscellaneous criminal Case No. 13/47, Dashrathlal Choube, the grounds of detention allege acts of incitement and instigation committed in the months of June, October and December 1946. They further allege an actual riot in October 1946 and an actual strike in December 1946. The petitioner's affidavit does not deny the commission of the acts; all he states is that he was within his legal rights and therefore the acts complained of do not amount to either instigation or incitement. But that is not an answer to the return. A riot relates to public disorder and strikes causing unrest among workmen are prone to result in public unrest which in turn often leads to public disorder.
37. The application is dismissed.
38. The case of S.K Mukerji Misc. Cri. Cass No. 17 of 1947 is similar to that of Dashrathlal Chobe. He is also from Raipur. The grounds of detention disclose prejudicial activities in August, September, October and December 1946. One part of the allegations against him is made in the following words:
“That between October and December 1946 you have been inciting the municipal sweepers to strike and brought about a strike by them”.
39. The affidavit also states that Mukerji was
“directly responsible for instigating municipal sweepers”.
40. The facts of instigation and incitement have not been denied in Mukerji's affidavit. In his first affidavit he states that no sweepers' strike took place at Raipur till the day of his arrest. But that is no answer to the allegation that he instigated a strike and continued to do so down to December 1346. In his second affidavit he said that he did not bring about a sweepers' strike at any time. But we are not here to judge that issue. The fact remains that they did strike when he was arrested and that they demanded his release. Obviously they would not do that unless he was intimately connected with them. Also, although M says he was not in Raipur when the Jubilee Hospital workers struck and the Bidi workers struck he admits he was elected President of the Hospital Workers Union in his absence and admits that in both cases his good offices were availed of to bring about a settlement. These afford grounds for the necessary “satisfaction”. As we have said, we cannot enquire into the sufficiency of the grounds provided some grounds exist.
41. The application is dismissed.
42. We come next to the Nagpur detenus. Shyamlal Roy's case, Misc. Cri. Case No. 14 of 1947. The allegations against him are that he incited strikes in August 1946 (railway coolies), also employees of the Nagpur Improvement Trust and Government peons on and off from before September 1916 and was present and spoke at a meeting of the Government peons at the Town Hall in December 1946.
43. Here also the fact of instigation has not been denied. All he says is that he did not ask the peons to strike at the Town Hall meeting. So also, as regards the coolies, what he says is that the strike was settled in one day and that no call for a strike was given by him. But it is one thing to call for a strike and another thing to incite or instigate a strike to cause unrest among employees without calling for one; also A can incite or instigate and B make the call. Equally one can instigate and yet not make a call because the time is not yet ripe. It is no use calling for a strike until the ground work has been laid. These evasive replies are not a good answer to the return. Here also we hold there was material for the satisfaction required.
44. The application is dismissed.
45. In A.B Bardhan's case, Misc. Cri. case No. 20 of 1947 the allegations cover prejudicial activities in January, July and December 1946. There is here a denial regarding the allegations relating to the January incident, but none regarding the two incidents in July and the one in December. On 11th July 1946 he is said to have instigated school and college students to strike. He denies that he instigated the School students but does not deny the allegation regarding the college students. These strikes led to two public fights. As regards the postal workers' strike the allegation is that he went round in a van with a loudspeaker and called on them to strike. He does not deny this but says he was not concerned with the strike “called by their Union.” That is not the allegation made against him. Then he was arrested in the Town Hall in Dec. 1946 where the Government Peons had assembled. He admits he spoke but says he only moved a resolution condemning the arrest of three members of the Communist Party. It is evident then that he was using this meeting for a political purpose not connected with the grievances of the peons. Whether he actually incited the peons to strike in the Town Hall or not his presence there, coupled with his previous activities, one of which led to public disorder, furnishes material on which satisfaction can be based.
46. The application is dismissed.
47. As regards B.N Mukerji, Misc. Cri. Case No. 21 of 1947, his prejudicial activities range from March 1946 to December 1946 and consist of urging a mass agitation against the reduction in rations, protest meetings against the Trade Disputes Bill and the projected Government Peon's strike in December 1946.
48. He admits he delivered a speech against the rations cut in March 1946 and also that he issued a statement against the Trade Disputes Bill and spoke in a public meeting against the Bill. He does not deny that he urged a mass agitation against the rations cut. All he says is that his object was not to disturb public tranquillity. The two are not the same. One's object in hitting a man over the head may be to reform him, the effect may be that he dies, but the concrete fact for investigation would be was he hit over the head. So here the question is did Mukerji urge a mass agitation and that is not denied.
49. As regards the Government peons Mukerji has denied that he incited them to strike and that he organized the procession but he admits his presence at the meeting “as one interested in the working class movement in general.”
50. As we have said, we cannot judge the sufficiency of the grounds for satisfaction but have merely to see whether grounds on which action could be taken exist. The facts we have referred to, in our opinion, afford such material.
51. The application is rejected.
52. In the case of H.K Vyas, Misc. Cri. case No. 22 of 1947, the grounds allege prejudicial activities in January 1946 (textile workers) March 1946 (reduction of rations), July 1946 (postal workers), September 1946 (Government Press employees), October 1946 (textile workers and rikshaw men) and December 1946 (Government peons).
53. In the case of the postal workers there is said to have been actual obstruction by Vyas directed against men who refused to go on strike and again in the case of the Government Press employees.
54. Activities in connection with the rations cut are admitted and there is no denial that the speech fomented pubic discontent. All that is said is that they were normal activities and that, he did not urge the people to break the peace and that his activities were not prejudicial to public tranquillity and order.
55. It is admitted that clashes occurred among the textile workers as a result of the decision to go on strike and it is not denied that he incited them to strike. All he says is that he did not speak at any meeting. So also the fact of obstruction in the case of Government Press employees is not denied. It is also not denied that he organised the procession of the Government peons in December 1946. We need not go deeper. We find there is material on which satisfaction can be based in this case also.
56. The application is rejected.
57. In Mustaque Hussain's case, Misc. Cri. Case No. 24 of 1947, the allegations are that he instigated a strike by the licensed railway coolies in July 1946, instigated and fomented the strike by the employees of the Government Press (September 1946) and
“that you have instigated the strike contemplated by the municipal sweepers in Nagpur this month (January 1947)”
that is to say, activities ranging from July 1946 to January 1947 are disclosed.
58. It was argued in this case that as the applicant was arrested on 21st December 1946 he could not have instigated the strike of January 1947. That of course does not follow. The groundwork of a strike is usually prepared well ahead of time and there is no denial in the affidavits of activities regarding this between the 21st November and the 21st December. The affidavit says there was no instigation in either December 1946 or January 1917. It is silent regarding instigation between the 21st November and the end of that month. The burden in these cases is on the applicant and the burden is a heavy one as this Court, the Privy. Council and the House of Lords have all stated from time to time: See for example, I.L.R (1943) Nag. 15412 at pp. 159, 173. We are bound to assume a return accompanied by an affidavit and grounds of detention and which is prima facie in order, to be good until the contrary is established. When the affidavit in reply is evasive, as here, and has the lacuna which we have indicated then the return must be accepted.
59. The application is rejected.
60. In D.L Jayawant's case, Misc. Cri. Case No. 25 of 1947, the allegations are that
“you as secretary of the unauthorised peons and other Allied Workers Union, have been inciting these groups of employees to strike, and delivered a speech at the Town Hall at Nagpur on 21st December 1946, inciting the Government Peons to strike.”
61. The question of continuity was raised in this case. It was argued that as only one specific overt act is referred to, namely, the speech at the Town Hall, the necessary continuity is lacking. But we think that the grounds do indicate continuity of action. The allegation is not that there was one isolated act of instigation but that there was continuous conduct culminating is this act when the arrest was made. Jayawant's affidavit supports this view.
62. The Union came into existence in July 1946, and as Jayawant was elected its Secretary it is reasonable to suppose that he had some hand in bringing the Union into being. A call for a strike was issued in August and was not withdrawn till September because a relief committee was appointed. This committee granted relief but the recommendations were considered inadequate and so the meeting of December 1946 was called to continue the agitation. We find that the necessary continuity of action is present in this case and also that there are materials on which action could be taken.
63. The application is rejected.
64. The last of the Nagpur cases is that of Om Prakash Mehta, Misc. Cri. case No. 26 of 1947. The arguments on the merits were not pressed in this case because he is now detained in connection with other charges and so the matter has become purely academic so far as he is concerned. His application is accordingly rejected.
65. From here we turn to Gulabchand Agarwal of Mandla, Misc. Cri. case No. 19 of 1947. The charges against him relate to inciting the Mandla municipal sweepers to strike in January 1946, the postal workers to strike in July 1946, and the sweepers to issue a notice of a second strike in January 1947.
66. This detenue was arrested on 27th December 1946 and the same argument was used in his case as in the case of Mustaque Hussain For the reasons given there, we hold that this detenue has not shown the return to be bad.
67. The affidavits of the detenue do not deny the allegations of incitement in regard to any of the three strikes. What is contended is that they were legitimate activities. But that relates to the sufficiency of the grounds and not to their existence.
68. The application is rejected. The remaining detenus have already been released. They are: Dr. D.K Diwanji, Misc. Cri. Case No. 23 of 1947, Dhanraj Acharya, Misc. Cri. Case No. 16 of 1947 and Ganesh Mote, Misc. Cri. case No. 15 of 1947.
69. Applications rejected.