Supreme Court of India
G. M. SHAHversusSTATE OF JAMMU & KASHMIR
- Citation
- 1979 INSC 226
- Decided
- 30 October 1979
- Disposal
- Case Allowed
- Bench
- V D TULZAPURKAR
Holding
The detention order is illegal and must be set aside because the grounds do not fall within the statutory definition of "prejudicial to the security of the State" and are vague.
Summary
The Supreme Court entertained a writ petition under Article 32 challenging the detention of Shabir Ahmed Shah under Section 8(2) of the Jammu & Kashmir Public Safety Act, 1978. The petitioners argued that the grounds of detention were vague and did not fall within the statutory definitions of "acting in any manner prejudicial to the security of the State" or "public order". The Court examined the language of the Act, particularly sections 8(3)(a) and (b), and held that activities such as eliciting public opinion or distributing hand‑bills, even if aimed at a death‑row prisoner, do not constitute a threat to the security of the State. Moreover, the grounds combined references to both security and public order without sufficient material, rendering the order illegal. Consequently, the detention order was quashed and the detenu was ordered to be released.
Issues considered
- Whether the grounds of detention satisfy the definition of "acting in any manner prejudicial to the security of the State" under Section 8(3)(a) of the Jammu & Kashmir Public Safety Act, 1978.
- Whether the grounds also satisfy the definition of "acting in any manner prejudicial to the maintenance of public order" under Section 8(3)(b).
- Whether a detention order that relies on vague or combined grounds can be sustained under the Act.
Legislation cited
- Constitution of Indias. Article 32
- Jammu & Kashmir Public Safety Act, 1978s. 13, s. 8(1), s. 8(2), s. 8(3)
Subjects
Public Safety Actpreventive detentionsecurity of the Statepublic ordervague groundsArticle 32interpretation of statutesJammu & Kashmir
Judgment
1104
A G. M. SHAH
I'.
STATE OF JAMMU & KASHMIR
October 30, ~ 979
• [V. D. TULZAl'URKAR & E. S. VENKATARAMIAH, JJ.]
Ja1nmu and Kashmir Public Safety Act, 1978 Sections 8(2) pnd 8(3)-
Scope of-"Law and Order," "Public Order," "Security of the State"-
MeClning of.
The petitioner'$ son (the detenu) was detained under section 8(2) of tJie
Jammu end Kashmir Public Safety Act, 1978 by an order of the District
c Magistrate, Anantnag, Sections 8(1)(")(1) and 8(2)2 of the Act state that
the· Government or the District Magistrate may, if satisfied with respect to
any pers.on that with a view to preventing him from acting in any manner
prejudiciel to the security of the State or the maintenance of the public order,
make an order directing that such person be detained.
The detenu was informed that the order of detention had been passed
D with a view to preventing him from acting in any :rllta11Iler prejudicial to "the
maintenance of public order'', The grounds of detention amongst others stated
that the detenu had (i) indulged in subversive activities (ii) organised the
burning of religious places to create chaos in the State (iii) disturbed the
public order (iv) tried to elicit public opinion in favour of a person sentenced
to death land that his remaining at large was prejudicial to the maintenance
of public order and also the "security of the State".
E The petitioner challenged the grounds of detention as vague.
Allowing the petition under Article 32 of the C-0nstitution and directing
the release of the detenu forthwith.
HELD : An attempt on the part of any citizen to elicit public opinion in
favour of a person who has been sentenced to death and to save him .from the
F ~ows cannot be considered as acting in any manner prejudicial to the
security of the State because it cannot be considered as an attempt to over-
throw or overawe the Government established by law in the State. The fact
that the ·detenu had sent hand~bi11s and booklets to arouse the sentiments- of
the people against the proposed execution of Z. A. Bhutto ctinnot be considered
as an act prejudicial to the security of the State because the State of Jammu
and Kashmir had nothing to do with the proposed execution. The other
G grounds are also ·vague in so far us the question of -security of the· State ~n
cerned. [ll ll B-E]
A combined reading of the order of detention and the grounds furnished
to the detenu shows that at the time \Vhen the order was made, . the District
l\iagistrate either had no material relevant to the security of the State on
\Vhich he could- act or even if he had information of those grounds, he did
e not propose to act on it. He, however, tried to support the order of deten-
tion by stating in the course of the grounds that by the detenu remainidg et
large, the security of the State was likely to be prejudiced. [ll ll G-H]
G. M. SHAH v. JAMMU & KASHMIR (Venkataramiah, !.) 11 OS
The expressions "law and order'', "public order" and "security of the ~
State" are distinct concepts though now always separate. Whereas every
bre3.ch of peace IIDy amount to disturbance of law and order, every such
breach does not amount to disturbance of public order and every public dis-
order may not prejudicially affect the "security of the State."' [1112 A-Bl
Ramesh Thapper v. The State of Madras, [1950] S.C.R. "594 at p. 600
applied. 1J
An act may affect law and order but not public order just as an act n1ay
affect public order but not security of State. lt is for this rea<Jon that the
Act defines the expressions "acting in any manner prejudicial to the security
. of the State" and "acting in any manner prejudicial to the maintenance of
public order' separately. An order of detention made either on the basis
that the detaining authority is satisfied that the person against who1n the C
order is being made is acting in any manner prejudicial to the security of
the State or on the basis that he is satisfied that such person is acting in
any manner prejudicial to the maintenance of public order but which is
attemp~ed to be supported by placing reliance on both the bases in the grounds
furnished to the detenu has to be held to an illegal one. [!113 C-D]
Dr. Ram Manohar Lohia v. State of Bi/tar & Others, [1966] 1 S.C.R. 709. [)
Bhupal Chandra Ghosh v. Arif Ali & Others [1974] 2 S.C.R. 277 and
Satya Brata Ghose v. Arif Ali & Others A.l.R. 1974 S.C. 258 followed.
ORIGINAL JURISDICTION: Writ Petition No. 1125 of 1979
(Under Article 32 of the Constitution)
M. K. Ramamurthy and R. C. Pathak for the Petitioner. E
K. K. Venugopal, Add[. Solicitor General, and Alta/ Ahmed for the
Respondent.
The Judgment !1f the Court was delivered by
VENKATARAMIAH, J.-At the conclusion of the hearing of the F
above petition on OctobeJ 24, 1979, we made the following order:-
"The detenu Shabir Ahmed Shah who has been detained
by the order dated the 23rd May, 1979 of the District Magis-
trate, Anantnag is directed to be released forthwith. Rea-
l\ sons would follow." G
The reasons in support of the above order are given below:-
The above petition under Article 32 of the Constitution is filed by
the petitioner requesting this Court to quash the order of detention
bearing No. 299-304/ST dated May 23, 1979 passed by tl1e District
Magistrate, Anantnag in the State of Jammu & Kashmir under section 1'
8(2) of the Jammu & Kashmir Public Safety Act, 1978 (Act No. Vi°
of 1978) (hereinafter referred to as 'the Act') directing the detention
16-143SCl/79 -
1106 SUPREME COURT REPORTS (1980] 1 S.C.R.
A of his (petitioner's) son, Shabir Ahmed Shah (hereinafter referred to
as 'the detenu'). The; r~Jevant part of the order of detention reads :
"Whereas I, Omar Jan, District Magistrate, Anantnag,
am satisfied that with a view to preventing Shri Shabir
Ahmed Shah s/o Ghulam Mohammad Shah r/o Kadipora,
B Anantnag, from acting in any manner prejudicial to the
maintenance of public order, it is necessary so to do;
Now, therefore, in exercise of the powers conferred by
section 8 (2) of the Jammu and Kashmir Public Safety Act,
1978 (Act No. VI of 1978), I, Omar Jan, District Magis-
C !rate, Anantnag hereby direct that the said Shri Shabir
Ahmed Shah be detained in Central Jail, Srinagar.
Sd/-
•
(Omar Jan.)
.D District Magistrate,
Anantnag." ·
The detenu was informed in pursuance of section 13 of the Act that
his detention had been ordered on the following grounds:-
"1. You originally belonged to Young Man's LEAGUE
(Hamid group) which was an anti-national and pro-Pak
organization of youngmen. You alongwith your erstwhile
associates were responsible for creating subversion and dan-
ger to the maintenance of public order by organizing anti-
national demonstrations and pro~ests.
F 2. Later in the year 1975 when the Peoples' League was
formed with the avowed object of challenging the accession '.
of the State to India and also for furthering the cause and
interest of Pakistan in the State, you joined the party as an
active member. You .are currently the General Secretary of
the Peoples' League. You and Your party have shown open
·G sympathy and have tried to elicit public opinion in favour of
Mohammad Maqbool Bhat, a die-hard prc>-Pak subversive
element who has been sentenced to death on two occasions
for murder, espionage and sabotage and is currently awaiting
execution. Pamphlets and posters have been issued by the
• Peoples' League in su.pport of Mohammad Maqbool Bhat.
3. Jn January and February, 1970 you j9,ined subversive
elements of Sopore area and organized the burning of reli-
G. M. SHAH v. JAMMU & KASHMIR (Venkataramiah, !.) -1107
gious places in order to create chaos in the State. The cons- A
piracy was, however, unearthed by Baramulla Police in time
before much damage was done. You were arrested in Case
FIR No. 38/79 u/s 436 RPC P fS Sopore registered in this
connection.
B
4. Much before the execution of Mr. Z. A. Bhutto in
Pakistan, you aud your party sent hand-bills and booklets to
arouse the sentiments of the people against the State Govt
You alongwith your party members moved secretly to main-
tain contacts with disgruntled and undesirable elements in
the valley and to arouse their base sentiments in this connec-
tion and context. ·
5. Jn the third week of March, 1979, when some unem-
ployed youth started hunger strike at Lal Chowk, Anantnag,
you lent support to the CPI ML and other parties who were
'< out to create disturbances and to incite the youth to resort D
·" to violence and disorder.
6. On 29-3-1979 you alongwith your colleagues held a
meeting and decided to disturb public order in Anantnag
town in the context of pro-Bhutto sentiments and demonstra-
tions the next day. E
7. Consequently on 30-3-1979 you alongwith your asso-
ciates moved stealthily to warn the shopkeepers to close their
11hops. You also incited the people to put road blocks and
~top traffic. You and your associates organized a strike in
Anantnag College; when it opened on 30th. ·Later in the day F
you alongwith your associal~ incited youths to resort to
violence and create disorder. Consequently a lot of vio-
knce including murderous assault on the Police and the
.Magistracy took place in Anantnag town in which many
__,•',..- officials were seriously injured. A case FIR No. 98/i9
u/s 302/148/336/332/1491120-B RPC was registered.
G
You went nnderground and could uot be arrested for quite
some time but you were arrested in tile case later. You are
presently on bail in this case. On 7-4-1979 when normalcy
was being restored in Anantnag town and shops were being
opened, you alongwith your associates appeared near Lal H
Chowk and threatened shop-keepers to close shops. Their
shouting and runriing had the effect of creating tension in the
1108 SUPREME COURT REPORTS [1980] 1 S.C.It.
A town and many shops were closed. Police efforts to arrest
you could not succeed as you ran away in the by-lanes and
later went underground.
8. More recently you have been collaborating with anti-
B national, pro-Pak elements who come to hold secret talks and
links with you. You are a dangerous and desparate charac-
ter out to create chaos, disorder, subversion and the like to
achieve your ends. Your remaining at large is prejudicial to
the maintenance of public order and also to the security of the
Stale. I am convinced that unless you are detained there is
every likelihood that you will continue to create confusion in
public minds and instigate people to lawlessness and distur-
bance of public peace and tranquility."
(The paragraphs are numbered by us for the purpose of conveni-
'D ence).
It may be noted that whereas the order of detention stated that it
had been passed with a view to• preventing the detenu "from acting in
any manner prejudicial to the maintenance of public order", in
the last paragraph of the grounds furnished to the detenu, it was stated
that "your remaining at large is prejudicial to the maintenance of pub-
lic order and also to the security of the State". The relevant part of
section 8 of the Act under which the order of detention is passed
reads:
"8. Detentio!JJ of certain persons.-(1) The Government
F may-
(a) if satisfied with respect to any person that
with a view to preventing 'hint from acting in any manner
prejudicial to-
G (i) the security of the State or the maintenance of t;e
public order, or
(ii) lhe maintenance of supplies and services essential to
the community; or
B· (b) .. . .. •
it .is necessary so to do, make an order directing that . such
person be detained.
G. M. SHAH v. JAMMU & KASHMIR (Venk(ltaramiah, !.) 1109
(2)" Any of the following officers namely:- A
• (i) Divisional Commissioners,
(ii) District Magistrates,
may, if satisfied as provided in sub-clauses (i) and (ii) of
clause (a) of sub-section (l), exercise the powers conferred
by the said sub-section. B
(3) For the purpose of sub-section (1),-
(a) "acting in any manner prejudicial to the security of
the State'' means making preparations for using, or
attempting to use, or using or instigating, inciting, C
provoking or otherwise abetting the use of force, to
overthrow or overawe the Government established by
law in the State;
' '(b) "acting in any manner prejudicial to the maintenance
of public order" means-
D
(i) promoting, propagating or attempting to create, feel-
ings of enmity or hatred or disharmony on grounds of
reJigion, race, caste, community, or region;
(ii) making preparations for using, or attempting to use,
or using, or instigating, inciting, provoking, otherwise
E
abetting the use of force where such preparation,
using, attempting, instigating, inciting, provoking or
abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing, or instigating,
inciting, provoking or otherwise abetting the com-
mission of, mischief within the meaning of section F
425 of the Ranbir Penal Code where the commission
of such mischief disturbs, or is likely to disturb pub-
lic order;
(iv) attempting to commit, or committing. or instigating,
inciting, provoking or otherwise abetting the commis- G
sion of an offence punishable with death or imprison-
ment for life or imprisonment for a term extending to
seven years or more, where the commission of such
offence disturbs, or is likely to disturb public order."
It is seen from section 8(1) (a) (i) and section 8(2) of the Act H
extracted above that the Govern.ment or the District Magistrate may, if
-satisfied with respect to any person that with a view to preventing him
1110 SUPREME COURT REPORTS [1980] 1 s.c.1t.
A from acting in any manner prejudicial to the security of the State or
the maintenance of the 'public order, make an order directing that
such person be detained. The expression "acting in any manner pre-
judicial to the security of the State" is defiped in clause (a) of sub-
section (3) of section 8 of the Act as making preparation for using, or
attempting to use, or using or instigating, inciting, provoking or other-
B wise abetting the use of force to overthrow or overawe the Government
established by law in the State. Clause (b) of section 8(3) of the
Act defines the expression "acting in any manner prejudicial to the
maintenance of public order". The distinction between the two ex-
pressions lies in the fact that while in the case of the former, the object
of making .preparatibn or instigating or abetting the use of force etc.
c should be with a view to overthrow or overawe "the Government estab-
lished by law in the State", in the case of the latter, the object of the
acts mentioned therein should be disturbance of public order.
As already mentioned, while the order of detention states that it
D was being made with a view to preventing the detenu from acting in
any manner prejudicial to the maintenance of public order, in the
grounds disclosed to hini, it had been stated that the detenu's remain-
ing at large was prejudicial to the maintenance of public order and also
to the security of the State. We shall now briefly refer to the nature
of the grounds furnished to the detenu. First we shall deal with
E paragraphs (1), (3) and (5) to (7) of the grounds. In paragraph (1)
of the grounds, it is stated that the detenu alongwith his erstwhile asso-
ciates was responsible for creating subversion and danger to the main-
tenance of public order by organizing anti-national demonstrations and J
protests. In paragraph (3) of the grounds, it is stated that in January
and February, 1979, the detenu had joined subversive elements of
F
Sopore area and organized the burning of religious places in order to
create chaos in the State. In paragraph (5) of the grounds, it is stated
that in the third weeIC of March, 1979, the detenu had lent support to
the Communist Party of India (ML) and other parties who were out ~
to create disturbances and to incite the youth to resort to violence and 4
G disorder when some unemployed youth started hunger strike at I.a~ ~
Chowk, Anantnag. In paragraph ( 6) of the grounds, it is stated tha"-JI
on March 29, 1979, the detenu had alongwith his colleagues held a:
meeting and decided to disturb public order in Anantnag town. In
paragraph (7) of the grounds, there is a reference to the detenu along-
with his associates inciting the youth to resort to violence and create
H disorder. It is thus clear that paragraphs (!), (3) and (5) to (7) of
the grounds, there is no rererence to any attempt made by the detenu
to use force to overthrow or overawe the Government established by
G. M. SHAH v. JAMMU & KASHMIR (Venkataramiah, J.) 1111
law in the State. Paragraphs (2), (4) and (8) of the grounds are
also in no way different. In paragraph (2) of the grounds, although
there is reference to the detenu joining Peoples' League, which had
been formed with an avowed object of challenging the accession of the
State of Jammu & Kashmir to India and also for furthering the cause
and interest of Pakistan in the State, the act attributed to the detenu is
that he had tried to elicit public opinion in favour of Mohammad Maq-
bool Bhat who had been sentenced to death. An attempt on the part
of any citizen to elicit public opinion in favour of a person who had
been sentenced to death and to save him from the gallows cannot be
considered as acting in any manner prejudicial to the security of the
State because it cannot be considered as an attempt to overthrow or C' '
overawe the Government established by law in the State. Similarly
the act attributed to the detenu in paragraph (4) of the grounds cannot
be considered as an act prejudicial to the security of the State as what
is alleged therein is that much before the execution of Mr. Z. A. Bhutto
· in Pakistan, the detenu had sent hand-bills and booklets to arouse the
,sentiments of the people. Although it is stated that the detenu had
tried to arouse the sentiments of the people against the State Govern-
ment, the alleged act on the part of the detenu even if it was true could
not be considered to be prejudicial to the security of the State of
Jammu '" Kashmir because the State of Jammu & Kashmir had nothing
to do with the, proposed execution of Mr. Z. A. Bhutto. Ground No. E. .
8 which lacks material particulars appears to be a general one. These
grounds are also vague in so far as tk question of security of the State
is concerned.
It is thus clear that none of the gro~nds supplied to the detenu falls
F
within the scope of clause (a) of section 8(3) (!) of the Act which
defines the expression ''acting in any manner prejudicial to the security
of the State". It is further seen that even though it is stated in the
grounds that the District Magistrate was of the view that the detertu
remaining at large was prejudicial to the security of the State also, he
did not make the order with a view to preventing him from acting in G
, any manner prejudicial to the security of the State. A combined read-
ing of the order of detention and the grounds furnished to the detenu
shows that at the time when the order was made, the District Magistrate
either had no material relevant to the security of the State on which
he could act or even if he had information of those grounds, he did not
propose to act on it. He, however, tried to support the order of deten- H
tion by stating in the course of the grounds that by the detenu remain-
ing at large the security of the State was likely to be prejudiced ..
'
1112 SUPREME .COURT REPORTS [1980] 1 s.c.R.
The expressions "law and order", "public order;' and "security ·of
the State" are distinct concepts though not always separate. Whereas
every breach of peace may amount to disturbance of law .and order,
every such breach does not amount to disturbance of public order and
every public disorder may not prejudicially affect the "security of the
State". This is borne out from the observations made by Patanjali
II Sastri, J. in the decision of this Court in Ramesh Thappar v. The
State of Madras(') which are as follows:-
"As Stephen in his Criminal Law of England observes:
Unlawful assemblies, riots, insurrections, rebellions, levying
of war, are offences which rnn into each other and are not
c capable of being marked off by perfectly defined boundaries.
All of them have in common one feature, namely that the.
normal tranquillity of a civilised society is in each of the cases
mentioned disturbed either by actual force or at least by
the show and threat of it." Though all these offences thus
v involve disturbances of public tranquillity and are in theory
offences against public order, the difference between them
being only a difference of degree, yet for the purpose of
grading the punishment to be inflicted in respect of them
they may be classified into different minor categories as has
. been done by the Indian Penal Code. Similarly, the Con-
stitution, in formulating the varying criteria for permissible
E
legislation imposing restrictions on the fnndamental rights
enumerated. in article 19(1), has placed in a distinct cate-
gory those offences against public order which aim at under-
mining the security of the State or overthrowing it, and made
their prevention the sole justification for legislative abridge-
ment of freedom of ~peech and expression, that is to say,
nothing less than endangering the foundatiOOSI of the State or
threatening its overthrow conld justify eurtaihnent of the
rights to freedom of speech and expression, while the right
of peaceable assembly "sub-clause (b)" and the right of
association "sub-clause ( c)" may be restricted under clauses
.r, \ (3) and (4) of Article 19 in the interests of "public order,"
which in, those clauses includes the security of the State. The
on
differentiation is also noticeable in Entry 3. List III (Con-
current List) of the Seventh Schedule, which refers to the
-·
"security of a State" and "maintenance of public order" as
H
distinct subjects of legislation. The Constitution thus requires
a line to be drawn in the field of public order or tranquillity
(I) [19501 S.C.R. 594, 600.
G. M. SHAH v. JAMMU & KASHMIR (Venkataramiah, J.) 1113
marking off, may be, roughly, the boundary between those A
serious and aggravated forms of public disorder which are
calculated to endanger the security of the State and the
relatiyely minor breaches of the peace of a purely local signi-
ficance, treating for this purpose differences in degree as
if they were differences in kind." B
As observed by Hidayatullah, J. (as he then was) in Dr. Ram
Manohar Lohia v. State of Bihar & Ors.(1), one has to imagine three
·concentric circles, in order to understand the meaning and import of
the above expressions. 'Law and order' represents the largest circle
within which is the next circle representing "public order" and the
smallest circle represents "security of State". It is then easy to see c
that an act may affect law and order but not public order just as an
act may affect public order but not security of State. It is in view of
the above distinction, the Act defines the expressions "acting in any
manner prejndicial to the security of the State" and "acting in any
manner prejudicial to the maintenance of public order" separately. An
order of detention made either on the basis that the detaining authority
D
is satisfied that the. person against whom the order is being made is
acting in any manner prejudicial to the security of the State or on the
basis that he is satisfied that such person is .acting in any manner
prejudicial to the maintenance of public order but which is attempted
to be supported by placing reliance on both the bases in the grounds
furnished to the detenu has to be held to ho an illegal one ,;de decisionS'
of. this Court in Bhupal Chandra Ghosh v. Arzr Ali & Ors.( 2 ) and
Satya Brata Ghose v. Arif Ali & Ors(').
The order of detention is, therefore, liable to be quashed and the
detenu is entitled to be set at liberty. The petition is accordingly
allowed.
F
In view of the above conclusion, we have not gorle into the other
contention urged by Mr. M. K Ramamurthi that many of the grounds
furnished to the deteuu being vague, the order of detention cannot be ·
l;•JPported even on the ground that it had been passed with a view
to preventing the detenu from acting against public order. G
N.K.A. Petition allowed.
(I) [1966] I S.C.R. 709.
,(2) [1974] 2 S.C.R. 277.
(3) A.I.R. 1974 S.C. 258.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Public Safety Act"Sign in to search