Vivian Bose, J.:— This order will govern Misc. Criminal Cases Nos. 57, 69 and 70 of 1942. We have before us a number of applications under Section 491 of the Cr PC, the section popularly known as the habeas corpus section, and the first point we have to consider is whether the right to apply subsists. The learned Advocate-General contends that it does not, and though he admits that the section has not been expressly repealed or abrogated he contends that the effect of the Defence of India Act (Act 35 of 1939) read with the rules is to render it nugatory. Now it is beyond dispute that this Court has no power to issue the writ of habeas corpus, see, 61 Cal. 197 (’34) 21 A.I.R 1934 Cal. 259 , 151 I.C 1028 , 35 Cr. L.J 1466 , 61 Cal. 197 , 59 C.L.J 185 , 28 C.W.N 299, Hijli Detention Camp following 54 Cal. 727, (’27) 14 A.I.R 1927 Cal. 496 , 102 I.C 647 , 54 Cal. 727 , 31 C.W.N 593 and no one contends that the powers conferred by S. 491 are as wide as those under the Habeas Corpus Act. But one matter is common, namely, the right of any person detained within the limits of this Court's appellate jurisdiction, whether by Government or by any one else, to apply to this Court and demand, either that he be “dealt with according to law” or that he be “set at liberty.” Fundamentally, the principles which underlie both provisions are the same. The object of both is to safeguard the liberty of the subject against excesses of the Executive and against an abuse of power. This is the most fundamental right known to the constitution bar only one, namely the right of the Government of the day to preserve the safety of the realm. The right is prized in India no less highly than in England, or indeed any other part of the Empire, perhaps even more highly here than elsewhere; and it is as jealously guarded by the Courts. In the words of Lord Atkin delivering the judgment of the Privy Council in (1931) A.C 662 (’31) 18 A.I.R 1931 P.C 248 , 132 I.C 739 , 1931 A.C 662 , 100 L.J.P.C 152 , 145 L.T 297 at page 670:
In accordance with British jurisprudence no member of the Executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice and it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the Executive.
2. Now, as I have said, this is one of the most fundamental rights known to the Constitution and the most highly prized, but it does yield place to another matter even more fundamental—the safety of the realm. No one doubts the right of the Legislature, or of such power as takes its place in emergencies, or when it is not functioning, to modify the rights of the subject or even to suspend or take them away altogether, and this in times of peace no less than war; for under the Constitution the Legislature is supreme. But, be it observed, it is the Legislature which is supreme, not the Executive, and so, before the Executive can claim the power to override those rights, it must show that the Legislature has empowered it to do so, and under the constitution the Legislature can only act in particular ways. All empowering must therefore be done properly and formally, deliberately, in the manner laid down by the Constitution. The Executive cannot suddenly step in and claim the right to wield absolute and arbitrary power—not even in war time. For, as Lord Atkin said in his dissenting judgment in (1941) 8 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 (Lords Macmillan and Wright agreeing as to this in principle — there was no difference of opinion on this point):
In this country, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are B now fighting, that the Judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the Executive; alert to see that any coercive action is justified in law.
3. I may add that these principles of liberty to which Lord Atkin refers apply as much to India as elsewhere, and it is as relevant for a Judge in India to take judicial notice, in a matter of this kind, of repeated allied pledges that justice will be done after the war and that those of the enemy found guilty of excesses and abuse of power will be brought to book and tried and punished, as it was for the learned law Lords in (1941) 3 ALL. E.R 333 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 to take judicial notice of the existence of Quislings and Fifth Columnists, and of Lord Atkin to take notice of the principles of liberty for which on high authority we are now fighting. I gather that the necessities of war will not be a sufficient excuse for excesses or an abuse of power committed by the enemy. I cannot think it is intended that they should be here. Therefore the Courts must enquire into such allegations if they are made. All these considerations weighed heavily with the learned law Lords in (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 when they construed provisions similar in many respects to the one we have here — in fact 5 the learned Advocate-General contended that this is the only case really in point and that it is decisive. In my opinion, such considerations are as relevant and should weigh as heavily with us here. It is my view that the rights conferred by S. 491 subsist and will continue to subsist until either the section is expressly, or by necessary and express implication, abrogated, or the rights are expressly taken away. The learned Advocate-General admitted that the section has not been expressly repealed, but he contended that the effect of the Defence of India Act and the rules made under it was to render it nugatory, and he Contended that in consequence the applicants had no right of audience. I refuse to accept this contention. I refused to accept a similar argument in I.L.R (1940) Nag. 1 (’39) 25 A.I.R 1938 Nag. 513 , 180 I.C 594 , 40 Cr. L.J 397 , I.L.R (1940) Nag. 1 (F.B) at page 11 when an abuse of power by the then Congress Government of the Province was in question. The Earl of Birkenhead refused to accept something similar in (1923) A.C 603 (1923) 1923 A.C 603 , 92 L.J.K.B 830 , 129 L.T 577 , 27 Cox. C.C 466 , 67 S.J 747 , 39 T.L.R 638 at p. 610 and in (1928) A.C 459 (’28) 15 A.I.R 1928 P.C 300 , 113 I.C 273 , 30 Cr. L.J 113 , 1928 A.C 459 , 97 L.J.P.C 97 , 139 L.T 527 , 72 S.J 452 , 44 T.L.R 632 at page 467 Lord Hailsham said that would be a “startling result.” Such fundamental rights, safeguarded under the constitution with elaborate and anxious care and upheld time and again by the highest tribunals of the realm in language of the utmost vigour, cannot be swept away by implication or removed by some sweeping generality. No one doubts the right and the power of the proper authority to remove, but the removal must be express and unmistakable; and this applies whatever Government be in power, and whether the country is at peace or at war.
4. I do not for a moment deny that the canons of construction are not the same in respect of war measures as those passed in times of peace: see Lords Macmillan and Wright in (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 and 6 Halsbury's Laws of England, Hailsham Edition, p. 527. Far greater latitude is allowed to the executive, and presumptions in favour of the liberty of the subject are weakened—indeed, that is expressly provided for in Section 3 of the Defence of India Act, but those canons and those rights do not disappear altogether. In my opinion, some limit must be placed upon claims to the arbitrary exercise of absolute power in matters connected with the restraint of a man's liberty, and unless such powers are unmistakably conferred either expressly or by necessary implication—and by “necessary” I mean when no other construction is reasonably possible—they must be taken, at the very least, to be subject to the right of a person detained to come before this Court under S. 491 and complain of that detention and demand that he be either dealt with according to law or be set at liberty; and this notwithstanding that the Act we are considering is a war measure. In my opinion, Lord Macmillan's observations in (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 apply here.
He said:
It is important to have in mind that the regulation in question is a war measure. This is not to say that the Courts ought to adopt in war time canons of construction different from those they follow in peace time. The fact that the nation is at war is no justification for any relaxation of the vigilance of the Courts in seeing that the law is duly observed, especially in a matter so fundamental as the liberty of the subject. Bather the contrary.
5. This, in my opinion, is particularly so when the very arbitrary powers, for which claim is made here are exercisable not only by the Provincial Government or by some responsible Minister, or Member of Council, or Adviser, but by any District Magistrate and even by certain Sub-Divisional Magistrates in this province, and indeed, so far as the Act is concerned, by “any officer or authority” not subordinate to the Central Government whom the Provincial Government may choose to appoint: see S. 2(5). It must be remembered that in (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 the learned law Lords, who answered Lord Atkin's powerful dissenting judgment, were careful to give prominence to the fact that one of the reasons which prompted them to decide as they did was that, in the case of the measure before them, the person exercising the wide powers, which were upheld, was a Minister of the Crown, responsible to a removable executive and to Parliament, a Secretary of State himself. Thus, Lord Wright said:
For the person who is to have reasonable cause to believe is not some minor official holding a subordinate position. He is the Secretary of State.
6. And Lord Maugham said:
Further it is to be noted that the person who is primarily entrusted with these most important duties is one of the principal Secretaries of State and a member of the Government answerable to Parliament for a proper discharge of his duties.
7. So also Lord Macmillan:
In the next place, it is relevant to consider to whom the emergency power of detention is confided. The statute has authorized it to be conferred upon 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 confided to one who has high authority and grave responsibility.
8. Lord Macmillan also indicated that in (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 if the person detained had been left without any safeguard, the decision might have been in favour of the liberty of the subject notwithstanding that the provision in question was a war measure. This is what he said:
Were the person detained left without any safeguard this might be an argument against holding that an absolute discretion hag been conferred upon the Secretary of State.
9. The safeguards referred to were, first of all, that a Secretary of State, and not any one of a number of minor officials, was to be personally satisfied about the order of detention, and that he had to report periodically to Parliament. But more important even than that was another safeguard, and here I will quote the noble Lord's own words:
… elaborate provision is made for the safeguarding of the detained person's interests. I refer to the constitution of advisory committees to which any person aggrieved by a detention order may make representation. The duty is imposed upon the chairman to inform the objector of the grounds upon which the detention order has been made and to furnish him with such particulars as are, in the chairman's opinion, sufficient to enable him to state his case.
10. I look in vain for any similar safeguard in the Indian measure—quite the contrary. These applicants have not even been allowed to see counsel. They have not been allowed to have legal advice. They have not been allowed to come before up in person, nor have they been given any reasons for their detention. There is also another powerful reason which weighed in (1941) 3 ALL. E.R 388 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 but which is absent here. I quote Lord Wright:
But if the sense of the country was outraged by the system or practice of making detention orders, or indeed of any particular order, it could make itself sufficiently felt in the Press and in Parliament to put an end to any abuse and Parliament can always amend the Regulation.
11. That does not apply here. Indeed I gather that the applicants before us were arrested, in the first instance, for their temerity in trying to exercise those very rights of protest which the law Lords in (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 regarded as the residuary safeguard. Now what are the provisions on which the learned Advocate-General relies for his contention that S. 491 has been abrogated by implication? First of all, he turns to Section 2 of the Defence of India Act, which provides as follows:
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 the war, or for maintaining supplies and services essential to the life of the community.
12. Stopping there I find it difficult to see how any of those objects can be endangered just because some obscure person in a district jail is allowed legal advice and is permitted to place his case properly before this Court under S. 491. I am not concerned to see whether these persons are desirable or not. The law is no respecter of persons, and, as Scrutton L.J said in (1923) 92 L.J.K.B 797 (1923) 2 K.B 361 , 92 L.J.K.B 797 , 27 Cox. C.C 433 , 87 J.P 166 , 21 L.G.R 419 , 67 S.J 553 , 39 T.L.R 487, Ex parte O'Brien (I quoted him in I.L.R (1940) Nag. 1 (’39) 25 A.I.R 1938 Nag. 513 , 180 I.C 594 , 40 Cr. L.J 397 , I.L.R (1940) Nag. 1 (F.B) at p. 10 also) it is one of the tests of belief, (and I may add of sincerity), to apply principles to cases in which one has no sympathy at all. As I see it, this refusal is an abuse of power. I cannot believe that things have reached such a pass that the safety of the realm is likely to be endangered if these per a sons, meritorious or otherwise, are allowed a little legal advice. Things cannot be as bad as that; and yet, though the learned Advocate-General did not say so, that is the logical conclusion to which one is driven if this section is relied on in justification of the order of refusal. But that aside, S. 2, in my opinion, in nowise abrogates S. 491, either expressly or impliedly, nor indeed does the Crown really contend that. What the learned Advocate-General says is that S. 2 must be read along with R. 26(f). The rule is as follows:
(1)… the Provincial Government, if it is satisfied with respect to any particular person that 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 it is necessary so to do, may make an order.
(f) Imposing upon him such restrictions as may be specified in the order in respect of his… communication with other persons….
13. This sweeping provision is said to abrogate S. 491 by implication. It is admitted that the rule does not say that the person detained may not apply but it is said that Government can say that he may not come before this Court to present his case in person and that he may not hold any communication with any person whom he desires should represent him. That, in my opinion, results in what Lord Wright called a “travesty of a trial”—not indeed a regular trial as ordinarily understood but of a trial by this Court of the issues which arise under the habeas corpus provisions of the Code of Criminal Procedure. I have no hesitation in rejecting such a contention. If the right to apply is not taken away, and I think I have made it plain that it is not, then the Executive cannot arbitrarily nullify the exercise of that right by making the proceedings in this Court a farce; and, in my opinion, that is what occurs if it be held that the man may neither come in person nor instruct another who is prepared and free to come; that he may not even receive proper and adequate legal advice. In my opinion, not only does S. 2 read with R. 26(f), not abrogate S. 491 but quite the contrary, and quite apart from general rules of constitution, Section 14 of the Defence of India Act, lays down that:
Save as otherwise expressly provided by or under the Act the ordinary criminal and civil Courts shall continue to exercise jurisdiction.
14. Admittedly the jurisdiction of this Court under S. 491 has not been expressly taken away. Therefore, it remains in force, and so long as this jurisdiction is there, the Judges must, in my opinion, be alert to see that the full effect of that jurisdiction is not whittled away or rendered ineffective by such orders as these. There is also another point against the contention of the Crown. Even R. 26(f) does not give a carte balache right of refusal. It says that the Provincial Government has to be satisfied in respect of each particular person. But what is the position here? The Joint Secretary to Government sends a memorandum to the Registrar stating that security prisoners as a class are not entitled to interviews except on the written orders of Government and copies of the relevant orders are enclosed. But these orders are general orders. They have no reference to the particular persons before us, and they were passed before these persons were even arrested. Government has nowhere stated that the safety of the realm, or any one of the other matters referred to in R. 26, will be imperilled if the applicants are permitted to interview their legal advisers. As I have said, this attempt to keep these applicants away from this Court under the guise of these rules, is an abuse of power and warrants intervention by this Court. In my opinion, the Provincial Government should be directed to permit interviews with legal advisers on such terms and subject to such conditions as it thinks desirable. I must not be understood as saying that anybody and everybody can be permitted to interview these persons, nor do I mean to imply that no restrictions can be imposed. Of course, Government can say that A, B and C may not interview the detenues or even X, Y and Z. But to say that no legal adviser can be found in the whole of this province or indeed in the whole of India, fit to be given the right of an interview for this purpose would be an abuse of power under the present state of the law and should not, in my opinion, be permitted.
15. It is relevant to point out here, as Lord Atkin pointed out in (1941) 3 ALL. E.R 338, (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 that it is difficult to see how the trial of a habeas corpus petition can present greater difficulties than the trial of a spy or of a traitor for treason. Also, it seems anomalous that while spies and traitors can be allowed, and are allowed, all reasonable facilities for placing their cases fully before the Courts, particularly in the shape of interviews with counsel, those against whom no charge is preferred are told on the one hand, as, in my opinion, the law tells them, that their right to apply in habeas corpus has not been taken away and still subsists, and on the other that they will nevertheless be refused every facility which tends to make that right a living reality if they try to exercise it. I can see the regrettable necessity for detaining and segregating persons who hamper the war effort or endanger public safety. I can see the desirability of arming the executive with weapons which necessitate the utmost secrecy. I can fully understand, as I believe the decision in (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 to be, that Government is not bound to disclose reasons for an arrest and detention Under these special powers. But even when all that is accepted, there is in my opinion still left a residue into which the Courts can and must enquire; and that enquiry cannot be frustrated by executive claims to wield absolute and arbitrary power in this way.
16. That brings me to the next point. It was urged on behalf of the Crown that there would be no point in allowing the applicants to present their case in the ordinary way because in the result they must fail in any event. I gather the implication was that S. 491 confers a discretionary power which the Courts can exercise or not as they choose, very much as in revision, and that no Court would accept a petition for hearing if it is clear on the face of it that it cannot succeed. I cannot agree. The right conferred by S. 491 is a right which it is intended that the subject should be free to exercise without let or hindrance. It is just as much a right as a right of appeal, may much more so because it is the most fundamental right known to the constitution bar one; and, in my opinion, the Courts are bound to hear the petitioner fully and fairly and bound to see that he is given proper opportunities of placing his case before the Court freely and unhampered. It may be that he will lose in the end but the Courts cannot decide that until he has been heard. Under the British law, the practice of condemning a man unheard (unless he has been afforded the opportunity to appear), or of deciding an issue behind his back is so repugnant and repellant as to be characterised by the highest tribunals in the realm as opposed to “natural justice” and as amounting to a “denial of justice.”: see, A.I.R 1936 P.C 242 (’36) 23 A.I.R 1936 P.C 242 , 163 I.C 681 , 37 Cr. L.J 914 (P.C) at pp. 245, 246 and 196 I.C 692 28 A.I.R 1941 P.C 132 , 196 I.C 692 , 43 Cr. L.J 1 , %ILR 1941 KAR PC 172 , I.L.R (1942) Lah. 36 (P.C) at p. 693. To use the language of their Lordships in another connexion, this amounts to “an invasion of liberty and a denial of his just rights as a citizen:” see, 18 C.W.N 9811 at p. 103.
17. But to examine this contention more closely. Mast the applicants necessarily fail, that is to say, is there nothing left into which the Courts can enquire? The learned Advocate-General, relying on (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 says no. He says it is enough for the Crown to produce the order of detention. Thereafter, there is nothing left for the Courts to do but to dismiss the petition. Again I do not agree. I hesitate to enter upon this ground in the absence of the other side, (in my opinion the other side is not really here), and so I do not intend to give a final opinion. I will only venture upon a tentative one. As I understand (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 the House of Lords do not hold that the jurisdiction of the Courts is wholly barred and that there is nothing left for them to investigate. It is true they hold that a lot is cut away and that very little is left but I understand them to hold that there is a residue and that residue must be investigated when the issue is raised. All the learned law Lords, except Lord Macmillan, stressed the fact that in the case before them there was no assertion of any want of good faith on the part of the Secretary of State and they implied, as I understand their judgments, that if such an issue had been raised, the Court would have been bound to try it. I need only quote Lords Romer and Wright. Lord Romer said:
For if at the trial the Home Secretary gives rebutting evidence to the effect that in his opinion there were reasonable grounds for his belief his statement being merely a statement as to his opinion must necessarily have to be accepted unless it can be shown that he was not acting in good faith and the onus of showing that would be upon the plaintiff “(that is, upon the person detained).” The materials upon which the Home Secretary founded his opinion would be wholly irrelevant and could not be inquired into by a Court of law.
18. And Lord Wright said:
The Judge “(of the lower Court)” adds, as is obvious, that the Court might no doubt be called upon to decide questions of bona fides or mistaken identity if they should ever arise.
19. I have concentrated on (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 because it deals with a war measure, and the learned Advocate-General quite rightly pointed out there is a difference as regards interpretation. But as I see it, that notwithstanding, the residue remains. Allegations of want of good faith must be investigated in spite of the war. Other cases, some of less authority, also reach the same conclusion, though they use different language. Thus, some call it an “abuse of power,” others a “fraud upon the Act,” and so forth. But I think they all come to much the same thing on a final analysis. In 1928 A.C 459 (’28) 15 A.I.R 1928 P.C 300 , 113 I.C 273 , 30 Cr. L.J 113 , 1928 A.C 459 , 97 L.J.P.C 97 , 139 L.T 527 , 72 S.J 452 , 44 T.L.R 632 the Privy Council called it an “abuse of power” and held that such an allegation, if made, must be investigated, and that was the expression used in (1916) 2 K.B 742 (1916) 2 K.B 742 , 86 L.J.K.B 62 , 115 L.T 608 , 80 J.P 389 , 32 T.L.R 717 , 14 L.G.R 1060, Governor which incidentally dealt with a war time regulation. The same view has been taken in India. Thus, 60 Cal. 364 (’32) 19 A.I.R 1932 Cal. 753 , 141 I.C 866 , 34 Cr. L.J 245 , 60 Cal. 364 , 36 C.W.N 1088 at p. 376 holds that the Courts have jurisdiction to see whether there has been a “fraud upon the Act,” or an “abuse of the powers granted by the Legislature,” and 61 Cal. 197 (’34) 21 A.I.R 1934 Cal. 259 , 151 I.C 1028 , 35 Cr. L.J 1466 , 61 Cal. 197 , 59 C.L.J 185 , 28 C.W.N 299, Hijli Detention Camp follows it. But, the learned Advocate-General argues, none of these cases really apply because there was nothing corresponding to Section 16 of the Defence of India Act, in the measures with which they were dealing. He contended that S. 16 expressly ousts the jurisdiction of the Courts altogether. I do not think so. Section 16 says:
No order made in the exercise of power conferred by or under this Act shall be called in question by any Court.
20. The Courts therefore still have to see whether the order was in fact made in the exercise of a power conferred by or under the Act. Now what are these powers? First of all, the Central Government has power to make rules for the purposes specified in S. 2 of the Act. It has made these rules, and it was not contended before, us that these rules are ultra vires. But what do the rules say? The one relied on is R. 26(1)(b). It gives power either to the Central Government or to the Provincial Government to direct that a person be detained if it is satisfied that it is necessary to detain that particular person for the purpose of preventing him from acting in any manner prejudicial to the defence of India, the public safety, the efficient prosecution of the war and so forth.
21. Section 2(5) then empowers the Provincial Government to direct that any power which it might itself have exercised under any of the rules be exercised instead by any person or authority, not being an officer or authority subordinate to the Central Government, subject to such conditions, if any, as the Provincial Government may choose to impose. Now these powers of detention appear to have been conferred upon all District Magistrates in this Province and some Sub-divisional Magistrates: see Notification No. 411-696-0. P.W Dated 7th April 1942. Therefore it is necessary that the Magistrates who have issued these orders should be satisfied in respect of each person detained, individually and separately, that it is necessary to detain him for the purposes specified in the section, or some of them.
22. If he is not satisfied and yet issues the order, then he cannot be said to be acting upon or under a power conferred by the Act. The point as I see it is exactly the same as in (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 except that the language used there was if the Secretary of State “has reasonable cause to believe” in place of “is satisfied.” In my view, the dissenting opinion of Lord Atkin notwithstanding, there is no substantial difference in meaning between these two phrases. The House of Lords decided that it is enough for the Crown to produce the order of the Secretary of State unless it is alleged that he had not acted in good faith or in abuse of the powers conferred, in which case the Courts would have to investigate the issue. That, in my opinion, is exactly the position here under the Defence of India Act.
23. It is to be observed that S. 16 requires that the order be passed in the exercise of the power conferred by the Act and not merely in colourable exercise of such power. The difference can be seen at once when one compares the language of S. 99, Penal Code. That section says that there is no right of private defence against any act done, etc., by a public servant acting in good faith “under colour of his office.” It is not enough therefore that these orders should be passed under colour of the power conferred. They must be done in actual exercise of it and, as I read the law, no power is conferred to make such orders in bad faith, or in abuse of the Act or for the purpose of effecting a fraud on the Act and consequently, these issues must be investigated if they are raised. Now it is plain that the petitions we have before us do not raise such issues, at any rate not with sufficient particularity to enable them to be tried, though the matter was argued. But they do set out that access to legal advice has been cut off, and it may be, if the petitioners are properly advised, they will be able to couch their petitions in language which will properly raise the issues. In any event, the facts placed before us in argument might, if properly placed and substantiated, raise these issues in a proper form. They appear to fall very close to the illustration of bad faith given by Ameer Ali J., in 61 Cal. 197 (’34) 21 A.I.R 1934 Cal. 259 , 151 I.C 1028 , 35 Cr. L.J 1466 , 61 Cal. 197 , 59 C.L.J 185 , 28 C.W.N 299, Hijli Detention Camp at p. 215. It may well be in the result that it will be difficult, perhaps almost impossible, to prove bad faith, especially with the limitations which (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 imposes, but if the House of Lords considers that the issue, if raised, must be tried, it is not for Courts in India to shrink from the task however difficult or disagreeable it may be.
24. I do not think it would be right for me to comment on the facts given to us, though they were not denied by the Crown nor indeed do I say that the illustration given by Ameer Ali J. would be sufficient to establish the issue. Indeed I do not at this stage even know whether the facts are true. All that has yet, in my opinion, to be investigated. But I will say this because Lord Wright made such a point of it in his speech. If the facts placed before us are true, the applicants appear to have done no more than many other responsible and respected persons more powerfully placed and who are still at liberty have done, namely protest against the detention of certain Congress leaders; that is to say, they have endeavoured to do exactly what Lord Wright considered the natural and obvious thing if in their view they felt that there had been an abuse of power either generally or in a particular case; indeed he considered it the residuary safeguard under the constitution against executive excesses and abuse of power.
25. I want to make it plain that I express no opinion whatever upon the actions of Government in making the orders of detention which they have made, either generally or in these or any other particular cases. That is not the province of a Judge. All I am pointing out here is the right which, as I envisage it, and as I gather Lord Wright envisaged it, the law still allows to citizens in spite of all these measures which drastically curtail their liberties. As I have said, it is not for Judges to agree or to disagree with the views expressed. But they must see how far the right to express them subsists; and I repeat, the test of sincerity and belief is to apply principles to cases in which one has no sympathy at all. There is another point which requires consideration. I intend merely to indicate the point at this stage. I do not think it would be right to express an opinion on it at the moment one way or the other, partly because the other side is not really here and partly because the point was not taken and so was not argued. But in these quasi criminal matters, just as in criminal cases, Judges have to apply the law to the best of their ability and cannot ignore points which strike their attention merely because counsel have omitted to argue them.
26. Rule 26(1)(b) gives the Provincial Government power to detain a person if it is satisfied etc. Section 2(5) empowers the Provincial Government to direct that any power or duty which it could exercise itself under the rules be exercised by certain other persons. The Provincial Government has authorised all District Magistrates and certain Sub-divisional Magistrates to exercise those powers of detention by Notification No. 411-696-C.P.W dated 7th April 1942. But the orders in the cases before us have been signed by A.G.F Farquhar, Additional District Magistrate. No Additional District Magistrate appears to have been authorised to act—at any rate no such authority was shown to us by the Crown. The action of Farquhar would therefore appear to be unauthorised and illegal. I am aware that there are other provisions which invest Additional District Magistrates with much the same powers and authority as the District Magistrate. But the Act and the rules we are dealing with are special, and in view of the importance which the House of Lords attached to the fact that in England only the Home Secretary could exercise the powers and not minor officials, I have grave doubts whether these very special and drastic powers can be exercised by those not specially authorised. As an illustration I give the fact that an Additional District Magistrate cannot marry persons under the Indian Christian Marriage Act. The mere fact that he can exercise the powers of the District Magistrate for a great many purposes does not necessarily invest him with authority to exercise all the District Magistrate's powers. I am of opinion that the applicants have a right to obtain proper legal advice on all these very difficult questions and that they should be permitted to place their cases properly before this Court after obtaining it.
27. My conclusions are that, (1) Section 491 of the Cr PC, has not been abrogated in any respect; (2) that any person aggrieved has a right to apply to the High Court and that he has a right to be heard; (3) that though the Provincial Government is entitled to take all proper precautions in the matter of granting interviews, even to legal advisers, it has no power to shut these detained persons off altogether from reasonable and proper legal advice; (4) that the Provincial Government has no power to prevent such issues as I have indicated from being tried in this Court in the ordinary way, if they are raised, subject of course to such reasonable safeguards as the Provincial Government may desire to have observed, that is to say, the trial, despite all safeguards, must be according to what the Privy Council call canons of natural justice, or according “to the fundamental rules of practice necessary for the due protection of persons and the safe administration of criminal justice,” or, I would observe, of any justice; (5) that in so far as these applicants have been refused access to all legal advice there has been an abuse of power; (6) that the jurisdiction of the Courts is not wholly ousted by the Defence of India Act and that there remains a residue of matter into which the Courts can and must enquire; (7) that it is doubtful whether Farquhar had the power to make these orders of detention—that, in my opinion, requires further consideration after the applicants are properly represented before us. The order I would make therefore in this case is that the Provincial Government be directed to afford these detained persons all reasonable facilities for obtaining such legal advice as they desire, subject to such safeguards as may reasonably be necessary; that the applicants 9 should then be permitted to place their grievances before the Court in petitions properly and legally drawn up; and that they should be allowed, subject again to such safeguards as may seem reasonably necessary, to press these petitions in the usual way, if not personally, at least through counsel in whom they have reasonable confidence. I observe that the applicants cannot insist on seeing counsel A, B or C any more than Government can say that only X shall be allowed. There must be reasonableness on both sides.
Pollock, J.:— The validity of five orders passed by Mr. Farquhar, Additional District Magistrate, Nagpur, on 22nd August 1942 and of two orders passed by him on 4th September 1942, directing that the seven persons mentioned therein be detained in the Nagpur Central Jail is challenged before us under Section 491 of the Cr PC. These orders were passed by Mr. Farquhar as Additional District Magistrate of Nagpur in exercise of the powers conferred on him by cl. (b) of sub-r. (1), of R. 26 of the Defence of India Rules read with Political and Military Department Notification No. 411-696-C.P.W, dated 7th April 1942. Under that Rule, the Provincial Government may order the detention of any person if it is satisfied that it is necessary to detain him in order to prevent him from acting in a certain manner. Under Section 2(5) of the Defence of India Act, the Provincial Government may by order direct that this power shall be exercised by any officer. In the above-mentioned notification referred to in Mr. Farquhar's order, the Provincial Government directed that the powers under R. 26 and other rules with which we are not concerned should be exercisable by all District Magistrates amongst others. In those orders Mr. Farquhar stated that he was satisfied that it was necessary to detain the present applicants for the purposes mentioned in R. 26. Section 16(1) of the Defence of India Act, provides that no order made in exercise of any power conferred by or under this Act shall be called in question in any Court. The question before us is whether the validity of these orders can now be challenged before us.
28. Under Regulation 18B, a somewhat similar power has been given in England to the Home Secretary. Following the decisions of the House of Lords in (1941) 3 ALL. E.R 338 (1942) 1942 A.C 206 , (1941) 3 All. E.R 338 and Greene v. Secretary of State for Some Affairs (1942) 1942 A.C 302 , 1941 All. E.R 399 the Court of Appeal has summarised the legal position in (1942) 111 L.J.K.B 475. (1942) 111 L.J.K.B 475, Ex parte Budd The position is this, that the Court has no power to inquire into the grounds for the Home Secretary's having “reasonable cause to believe” or being “satisfied” within the meaning of the regulation and that the only matters upon which the Courts have power to inquire are the good faith of the Home Secretary, the authenticity of the order, and its application to the persons detained. Sub-section (2) of Section 16 of the Defence of India Act, enacts that where an order purports to have been made and signed by any authority in exercise of the power conferred by or under this Act, the Court shall, within the meaning of the Evidence Act, 1872, presume that such order was so made by that authority. Under Section 4 of the Evidence Act, therefore the Court shall presume that the order was so made until it is disproved; in other words the presumption is rebuttable. The first question to be decided is whether Mr. Farquhar had power to pass such orders. If he had no such power, then the order was not made in exercise of the power conferred upon him under the Defence of India Rules and its validity could be challenged in this Court.
29. On 15th August 1942, Mr. Farquhar was appointed as Additional District Magistrate of Nagpur in addition to his own duties. Under Section 10(2) of the Cr PC, an Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force as the Provincial Government may direct. There may have been some order by the Provincial Government directing what powers the Additional District Magistrate of Nagpur shall exercise, but I have not seen it. Without such a direction it would appear that the Additional District Magistrate has no power, but this point has not been argued before us. Mr. Farquhar in passing his orders based his authority on the notification of 7th April 1942 directing that the powers conferred by R. 26 of the Defence of India Rules shall be exercisable by District Magistrates, but he was not himself a District Magistrate. On 26th August 1942 a notification was issued, no. 3213-258-C.P.W, by the Provincial Government directing that the powers conferred on it by R. 26 of the Defence of India Rules shall be exercisable also by the Additional District Magistrate of Nagpur in respect of the Nagpur district with effect from 21st August 1942. If this notification was necessary in order to enable Mr. Farquhar to exercise these powers, it would appear that Mr. Farquhar had no such power on 22nd August 1942 when he passed five of the orders that are now challenged before us, and I doubt if it would be possible for the Provincial Government to validate with retrospective effect the orders passed on 22nd August 1942. This of course would not apply to the orders passed on 4th September. I think it is clear that we have no power to enquire into the reasons which led Mr. Farquhar to pass such orders or into the question whether he had adequate grounds for being satisfied that it was necessary to pass them. In my opinion, however, the persons detained can challenge the good faith of Mr. Farquhar; that is, it is open to them to contend that Mr. Farquhar did not act in good faith in passing those orders and that the orders were a fraud upon the Act. Under Section 16(2) of the Defence of India Act, the burden of proof will be upon the persons detained to show that Mr. Farquhar acted in bad faith and I think that in practice it is likely to be a formidable task. I agree with much though not with all what my learned brother has said and with his conclusion that a person detained under the rules has a right to apply to the High Court under Section 491 of the Cr PC, challenging the validity of the order of detention on the ground that the person passing the order had no authority to pass it and on the ground that he was not in fact satisfied that it was necessary to pass such an order and acted in bad faith. If the person passing the order had authority to pass it and was in fact so satisfied, then this Court cannot go into the grounds on which he was satisfied and the order cannot be called in question in this Court. It is therefore necessary, in my opinion, that the persons detained should be granted access to legal advice so that their cases may be properly represented in this Court.
30. Order accordingly.