Supreme Court of India
S.M.D. KIRAN PASHAversusGOVERNMENT OF ANDHRA PRADESH AND ORS.
- Citation
- 1989 INSC 340
- Decided
- 9 November 1989
- Disposal
- Appeal(s) allowed
- Bench
- K N SAIKIA
Holding
The Supreme Court quashed the detention order, holding that it was invalid for lack of statutory approval and advisory board referral, and affirmed that courts may entertain pre‑emptive challenges to preventive detention under Article 226.
Summary
S.M.D. Kiran Pasha, a municipal councillor, was detained under the Andhra Pradesh Prevention of Dangerous Activities Act, 1986, after alleging political vendetta. He filed a writ petition under Article 226 challenging the detention, but the High Court dismissed it, insisting he first surrender and seek habeas corpus. The Supreme Court examined whether a court can entertain a pre‑emptive challenge to a preventive detention order and whether the order was valid under the Act. It held that the detention order was void because it was not approved by the State Government within the prescribed 12‑day period and was not referred to the Advisory Board within three weeks. The Court also clarified that Article 226 permits enforcement of the right to liberty even before an actual detention occurs, allowing the quashing of the order. Consequently, the appeal was allowed and the detention order set aside.
Issues considered
- Whether a writ petition under Article 226 can be entertained to challenge a preventive detention order before the detainee surrenders and files a habeas corpus petition.
- Whether the detention order is invalid for failure to obtain State Government approval within 12 days as required by Section 3(3) of the Act.
- Whether non‑referral of the case to the Advisory Board within three weeks under Section 10 of the Act renders the detention order void.
- Scope of the term 'enforcement' in Articles 32 and 226 concerning pre‑violation protection of the right to life and liberty.
Legislation cited
Subjects
preventive detentionArticle 226Article 32fundamental right to libertyhabeas corpusadvisory boardpre‑emptive reliefconstitutional lawenforcement
Judgment
S.M.D. KIRAN PASHA
v. A
GOVERNMENT OF ANDHF.A PRADESH AND ORS.
NOVEMBER 9, 1989
[K.N. SAIKIA AND M. FATHIMA BEEVI, JJ.] B
Constitution of India, 1950: Articles 32 & 226-Life and personal
liberty-Right to--'Enforcement' of right in Court-Whether Court can
insist that person surrenders and then files habeas corpus petition-Post
violation resort and pre violation of protection-Distinction between.
The appellant is a Municipal Councillor of the Cuddapah Munici- C
pal Council. He was elected to the Council as an independent candidate.
According to him, he enjoys popularity in his area and had previously
held important positions in the District. He states that the local leader-
ship of the ruling Telugu Desam Party having failed to woo him into
their fold, he was pressurised through the Excise and Police authorities D
foisting false cases upon him. Scenting a move to detain him under the
provisions of the Andhra Pradesh Prevention of Dangerous Activities of
Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic
Offenders and Land Grabbers Act, 1986, the appellant filed a writ
petition on 6.6.1988 in the High Court, averring in.ter alia that the
successive actions initiated against him were a part of political vendetta. E
A learned Single Judge on 8.8.1988 was pleased to direct interim the
respondents not to take the appellant into preventive custody for a
period of 15 days on the basis of the cases already registered. However,
on 10.6.1988 the appellant was served the detention order dated
3.6.1988 as well as the grounds of detention, and he was taken into
custod~, but was released after four days. F
The appellant filed on 25.6.1988 in his pending writ petition a
miscellaneous petition, as an additional affidavit. He assailed therein
the order of detention on various grounds. A Division Bench of the High
Court, on reference by the learned Single Judge, held that the prayer in
the writ petition had become infructuous, and that there were no extra- G
ordinary or special reasons to depart from the normal rule, namely,
that in such a case the appellant should first surrender and move for a
writ of habeas corpus. The Division Bench accordingly, dismissed the
writ petition.
B.Core this Court it was inter alia contended on behalf of the H
105
106 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.
appellant that the High Court erred in holding that there were no A
extraordinary circumstances or special reasons to depart from the
normal role, thereby refusing to grant relief to the appellant against
infringement of his fundamental right to liberty; that the detention
order having not been approved by the State Government as required
nuder Section 3(3) of the Prevention of Dangerous Activities Act and the
B
appellant's case having not been placed before the Advisory Board as
required under section IO thereof, the detention order ceased to be in
force and hence was liable to be quashed.
On behalf of the respondent, it was contended that the detention
order having been passed before the writ petition was filed, the High
Court was right in dismissing the writ petition following the court's c
practice and procedure, and that there were no extraordinary or special
reasons to depart from the normal role inasmuch as granting relief at
such a stage would defeat the very purpose of the Act. Counsel, how-
ever, could not deny that the detention order was not approved by the
State Government and that the appellant's case was not placed before
D
the Advisory Board.
Allowing the appeal and quashing the order of detention, this
Court,
HELD: (1) The position of a person who is actually under illegal
E
detention and of a person who is in imminent jeopardy of illegal deten-
tion are not far dissimilar. Refusal to interfere in such a case may
amount to denial of the fundamental righ itself. I114A]
Jayantital Bhagwandas Shah v. The State of Maharashtra, [1981]
I Cr. L.J. 767, referred to.
F
(2) There could be no reason why in an exceptional and rare case,
detention order already made, and either served or yet to be served,
and the person is still free, could not be legally brought under
challenge. [114F]
Vedprakash Devkinandan Chiripal v. State of Gujarat, AIR 1987 G
Gujarat 253.
A.K. Gopalan v. State of Madras, AIR 1950 SC 27; Addi. District
Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, referred
to.
H
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. 107
(3) For enforcement of one's right to life and personal liberty
resort to Article 226(1) has been provided for. The word 'enforcement' A
has also been used in Article 32 of the Constitution which provides
the remedy for enforcement of rights conferred by Part III of the
Constitution. The word 'enforcement' has not been defined by the
Constitntion. [llSB]
B
(4) 'Enforce' means to compel obedience to laws; to compel
performance, obedience by physical or moral force. [I !SC]
(5) Conferring the right to life and liberty imposes a correspond-
ing duty on the rest of the society, including the State, to observe that
right, that is to say, not to act or to do anything which would amount to
infringement of that right, except in accordance with the procedure c
prescribed by law. I 115F I
(6) Resort to Article 226 after the right to personal liberty is
already violated is different from the pre-violation protection. Post-
violation resort to Article 226 is for remedy against violation and for D
restoration of the right, while pre-violation protection is by compelling
observance of the obligation or compulsion under law not to infringe the
right by all those who are so obligated or compelled. To surrender and
apply for a writ of habeas corpus is a post-violation remedy for restora-
tion of the right which is not the same as restraining potential violators
in case of threatened violation of the right. ll16B-C] E
(7) Law surely cannot take action for internal thoughts but can
act only after overt acts. If overt acts towards vioiation have already
been done and the same has come to the knowledge of the person
threatened with the violation and he approaches the court under Art.
226 giving sufficient particulars of proximate actions as would immi- F
nently lead to violation of right, should not the court call npon those
alleged to have taken these steps to appear and show cause why tlley
should not be restrained from violating that right? [II6C-D]
(8) The difference of the two situations have different legal
significance. If a threatened invasion of a right is removed by restrain- G
ing the potential violator from taking any steps towards violation, the
rights remain protected and the compulsion against its violation is
enforced. If the right has already been violated, what is left is the
remedy against such violation and for restoration of the right. [ II6F-G I
(9) In the instant case, the appellant's fundamental right to H
108 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
A liberty is the rellex of a legal obligation of the rest of the society, includ-
ing the State, and it is the appellant's legal power bestowed upon him to
bring about by a legal action the enforcement of the fulfilment of that
obligation existing towards him. Denial of legal action would, therefore,
amount to denial of his right of enforcement of his right to liberty. A
B petition for a writ of habeas corpus would not be a substitute for this
:enforcement. [1200-E]
K.K. Kochunni v. The State of Madras and Ors., [1959] Su~p. 2 •.
SCR 316; Special Reference No. 1 of 1964, [1965] 1 SCR 413; M. C.
C
Mehta v. Union of India, [1987] 1SCC395, referred to.
(10) As the detention order was already passed and served' and
the detenu was already taken into custody during the pendency of the
writ petition, these subsequent events having being brought to the
-
notice of the court by a Misc. application iu the form of addi-
tional affidavit, the safue ought to have been dealt with by the High
D Court. ,[113A-B]
(11) The detention order had not been approved by the State
Government within 12 days of its being made, as enjoined under .sub-
section (3) of section 3 of the Act. The result is that the order could not
remain in force more than 12 days after making thereof and as such
must be treated as to have ceased to be in force and non-existent
E thereafter, [122A]
(12) Even though the detenu was released, if the detention order
was in force, his case was required to be placed before the Advisory
Board. This being a mandatory provision and having not been complied
with, the detention order even if otherwise in force, cannot be said to
p have been in force after three weeks. [122H; 123A]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 702 of 1989.
From the Judgment and Order dated 4.7.1988 of the Andhra
G Pradesh High Court in W.P. No. 8610 of 1988.
M.C. Bhandare and Ms. C.K. Sucharita for the Appellant.
Ganesh, S. Muralidhar, T.V.S.N. Chari and Raghltv for the
H Respondents.
- S.M.D. KIRAN PASHA v. GOVT. OF. A.P. [SAJKJA, J.]
The Judgment of the Court was delivered by
109
A
K.N. SAIKIA,J, Special leave granted.
This appeal is from the Judgment and Order of the High Court of
Andhra Pradesh at Hyderabad dated 4.7.1988 passed in Writ Petition
No. 8610 of 1988. B
The appellant states that he enjoys popularity in his area and
that he previously held several important positions in the Cuddapah
District of Andhra Pradesh, such as organising Secretary of the
Andhra Pradesh Congress Committee for several years, a Municipal
Councillor from 1982 to 1986 and a Vice-Chairman of Cuddapah
Municipal Council. According to him in Deceinber 1985 he was
c
elected as a Chairman of the Cuddapah Municipal Council for its
residuary term and in March 1987 he was elected to the Municipal
Council as an independent candidate defeating the Telugu Desam and
Congress {I) candidates by a large margin. It is his case that the local
leadership of the ruling Telugu Desam Party having failed to woo him D
into their fold he was pressurised through the Excise and Police
authorities foisting false cases upon him. On 13.11.1987, the police
having summoned him to the Police Station for taking his photograph
as was done in case of criminals, he moved the Andhra Pradesh High
Court by Writ Petition No. 79038 of 1987 and the High Court was
pleased to issue directions as prayed for, by its order dated 17 .12.1987. E
Thereafter the excise authorities are stated to have registered some
cases against the appellant who applied for and was granted bail on
10.5 .1988 rejecting the Excise authorities' prayer for custody. Scenting
a move to detain the appellant under the provisions of the Andhra
Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits,
Drug Offenders, Goondas, Immoral· Traffic Offenders and Land F
Grabbers Act, 1986, hereinafter referred to as 'the Act', the appellant
filed Writ Petition No. 8610 of 1988 on 6.6.1988 in the Andhra Pradesh
High Court averring, inter alia, that the successive actions initiated
against him were a part of political vendetta. A learned Single Judge
on 8.6.1988 was pleased to direct interim the respondents not to take
the appellant into preventive custody for a period of 15 days on basis G
of the cases already registered. However, on 10.6.1988 the appellant
was served the detention order in S.No. 7/1988 dated 3.6.1988 as well
as the grounds of detention; and he was taken into custody and
detained in Secunderabad jail, but was released after four days. The
detention order stated that with a view to preventing him from acting
in a manner prejudicial to the maintenance of public order, it was H
110 SUPREME COURT REPORTS [ 1989] Supp. 2 S.C.R.
A necessary to make an order directing that "he shall be detained." The
grounds of detention as served upon the appellant contained altoge-
ther 13 grounds ranging a period from 23.11.1974 to 7.5.1988.
The appellant filed on 25.6.1988 in his writ petition a miscel-
laneous petition being W.P.M.P. S.R. No. 51830, as an additional
B affidavit, stating, inter alia, that the wri( petition was filed by him
seeking a direction to the respondents to refrain from making an order
detaining him under the provisions of the Act and the same was admit- {
ted and interim direction issued. But thereafter the detention ord~r in
S.No. 7 of 1988 dated 3.6.1988 was served on him on 10.6.1988 and, l
therefore, he submitted the additional affidavit with reference to the
impugned order of detention. He assailed therein the grounds of
c detention as vague, stale, non-existent and, in any case, irrelevant
bearing no reasons for the decision that his detention was necessary to
prevent him from acting in a manner prejudicial to the maintenance of
public order. He also assailed the order on grounds of non application
of mind by the respondent No. 2 and absence of nexus between the
D grounds and maintenance of public order and of non-disclosure of any
rational basis for formation of such an opinion. He refuted and denied
each of the 13 grounds and prayed that the writ petition be amended {
by substituting the prayer so as to issue a writ, order or direction and
more particularly one in the nature of writ of mandamus declaring the 1
order of the Collector and District Magistrate respondent No. 2 herein
E in S.R. No. 7 of 1988 dated 3.6.1988 made under Act 1 of 1986 as
illegal and void and to pass such other orders as are necessary in the
interests of justice. Admittedly no specific order was passed on this
miscellaneous petition. It appears that a Counter Affidavit was filed in
the writ petition on behalf of the respondents and the appellant filed a
reply affidavit thereto.
F
A Division Bench of the High Court of Andhra Pradesh on refe-
rence by the learned Single Judge heard the writ petition analogously
with another writ petition and observing, inter alia, that as an order of
detention was made even before the writ petition was filed, held that
the prayer in the writ petition had become infructuous; and that there
G were no extraordinary or special reasons to depart from the normal
rule, namely, that in such a case the appellant should first surrender
and move for a writ of habeas corpus, and accordingly dismissed the
writ petition.
Mr. M.C. Bhandare, the learned counsel for the appellant s11b-
H mits, inter alia, that the High Court erred in dismissing the appellant's
- S.M.D. KIRAN PASHA v. GOVT. OF. A.P. [SAIKIA, J.)
writ petition holding that there were no extraordinary circumstances
111
or special reasons to depart from the normal rule that the appellant in A
such a case should first surrender and then move a petition for habeas
corpus thereby refusing to grant relief to the appellant against infringe-
ment of his fundamental right to liberty; and that the grounds of deten-
tion were vague, irrelevant, stale and non-existent having no relation
to the stated purpose of detention, and there was ma/a fide exercise of B
power and complete non-application of mind on the part of the detain- •
ing authority for which the grounds of detention ought to have been
rejected and the detention order set aside. Counsel relies on a decision ,
of the Bombay High Court reported in 1981(1) Cr!. L.J. 767 and one of
)
the Gujarat High Court since reported in AIR 1978 Gujarat 253.
Counsel further submits that the detention order having not been
approved by the State Government as required under section 3(3) of c
the Act and the appellant's case having not been placed before the
Advisory Board as required under section 10 the detention order
ceased to be in force and hence is liable to be quashed.
Mr. M.S. Ganesh, the learned counsel for the respondents sub- D
mits that the detention order having been passed before the writ peti-
tion was filed, the High Court was right in dismissing the same follow-
ing the court's practice and procedure; and that there were no extra-
ordinary or special reasons to depart from the normal rule inasmuch as
granting relief at such a stage would defeat the very purpose of the
Act. Counsel however, could not deny that the detention order was E
not approved by the State Government and that the appellant's case
was not placed before the Advisory Board.
The first question to be decided therefore, is whether the mgh
Court was right in dismissing the writ petition holding that the rule or
practice of the High Court in such a case was to interfere only where F
there were> extraordinary or special reasons and otherwise to leave the
appellant to first surrender and then move a petition for habeas
corpus.
From a perusal of the Judgment of the High Court it appears that
it analysed the question of maintainability of the writ petition from two G
view points, namely, of the High Court's power, and the High Court's
rule or practice. The High Court correctly analysed the power of the
High Court to interfere in such a case under Article 226 of the
Constitution of India concluding that the High Court had power to
interfere. While tracing the High Court's evolving rule or practice, the
Bench took the view that it was but appropriate and proper that the H
112 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
A court evolved and followed a practice and procedure where it would
not ordinarily entertain a challenge to a preventive detention unless
the person concerned submitted himself to the order and not to
encourage persons against whom orders of preventive detention were
made by the competent authority under a valid enactment to avoid the
process of law and at the same time seek the protection of law from
B this Court. Relying on several decisions of its own, the Court observed:
"There is no presumption that any and every order of
detention is bad. The normal rule shall therefore be "sur-
render to the order first and then approach this Court."
Only in extraordinary cases, where it appears that the State
is exercising its power under a preventive detention statute
c for an oblique purpose, or in an outrageous and/or vindic-
tive manner, or where the order of detention is ex facie
invalid, would this Court depart from this rule. Now, what
would be such extraordinary case cannot and, indeed,
should not be defined or specified. It is better left to the
D sound judgment and decision of this Court." '
The High Court on facts of the appellant's writ petition, obser-
ved that the allegations that the entire administrative machinery was
being misused by the local MLA who happened to be a Cabinet Minis-
ter to hound the appellant and that the Collector and District Magis-
E Irate was being used as a tool were not correct and, therefore, said:
"Once we are of the opinion that there are no extra-
ordinary or special reasons to depart from the normal rule,
we will not look into or examine the relevance or correct-
ness of the grounds as we would do in a writ of habeas
F corpus."
'
The writ petition was accordingly dismissed.
Mr. Bhandare submits that when the appellant's fundamental (
right to liberty was threatened through the machination of a detention
G order, he approached the High Court for protection and when despite
the interim order of the High Court his fundamental right was violated
by detaining him, after serving the order of detention on vague, stale,
irrelevant and non-existent grounds, though he was released after four
days, he ough! not to have been denied relief on the ground of there
having evolved a practice or procedure of the Court not to interfere in
H such a case except where there were extraordinary or special reasons
!
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. [SAIKIA, J.) 113
and to leave the appellant to surrender and then move ·a petition for
A
habeas corpus. We find force in this submission. As the detention
order was already passed and served and the detenu was already taken
into custody during the pendency of the writ petition, these subse-
quent events having been brought to the notice of the court by a Misc.
application in the form of an Additional Affidavit-the same ought to
have been dealt with by the High Court. B
In Jayantilal Bhagwandas Shah v. The State of Maharashtra,
[1981] 1 Crl. L.J. 767, the challenge was directed towards Jrders of
detention passed under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, but the intended
detenus under those orders were not in detention. The State having
raised a preliminary objection to the maintainability of the petition on c
the ground that the habeas corpus jurisdiction under Art. 226 of the
Constitution was exercisable only to examine the legality of a deten-
tion where there was a detention and in no other case, a Division
Bench of the Bombay High Court took the view that though the writ of
habeas corpus might be issued only when there was actual illegal de- D
tention, that was not to say that an illegal order of detention could not
be successfully challenged.
In para 11 of the report, the Court held:
"Art. 226 is couched in language wide enough to protect a E
person against an illegal invasion of his right to freedom by
protecting him while still free and by regaining his freedom
for him if he has already been wrongfully detained. We
cannot countenance · and do not accept the Advocate-
General's submission that the High Courts are impotent to
give relief against the prospect of illegal detention and must F
first require the intended detenu to surrender to the illegal
detention. We are satisfied that the High Courts may under
the provisions of Art. 226 issue a direction, order and writ
in the nature of mandamus and/or certiorari quashing an
illegal order of detention and may by direction, order and
writ in the nature of prohibition en join the person threa- G
tening the illegal detention from executing the threat."
Accordingly the Court held that it would intervene to strike down an
illegal order of detention. If the court could in matters of personal
liberty intervene on the strength of a mere post-card, they surely could
intervene on the strength of a petition, though they may seek the H
114 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
wrong relief or be phrased in the wrong form. The position of a person
A who is actually under illegal detention and of a person who is in
imminent jeopardy of illegal detention are not far dissimilar. We are
inclined to agree with this view as we feel that refusal to interfere in
such a case may amount to denial of the fundamental right itself.
B A Full Bench of the Gujarat High Court in Vedprakash
Devkinandan Chiripal v. State of Gujarat, since reported in AIR 1987
Gujarat 253 where the petitioner was said to be detained under the
provisions of Prevention of Blackmarketing and maintenance of Sup-
ply of Essential Commodities Act, 1980 and the petitioner having
absconded, a notification was issued in the official gazette as provided
under section 7(1)(b) of the said Act and the person moved the peti-
c tion under Art. 226 of the Constitution of India praying a writ of
habeas corpus or a writ of mandamus, the question was whether the
petition would be maintainable before the detenu had been served
with order of detention and had been detained in custody, answered
the question in the affirmative. Relying on the decisions in A .K.
D Gopalan v. State of Madras, AIR 1950 SC 27 and Addi. District Magis-
trate, Jabalpur v. Sh{vakant Shukla, AIR 1976 SC 1207, the Full Bench
took the view "that before detention, if writ of mandamus is moved for
challenging unauthorised detention order which is already passed on
the ground that the order is a nullity because it is passed (a) by an
incompetent person or (b) it is a ma/a fide order or (c) it is contrary to
E the legal prodcedure prescribed for passing such order, or (d) it is
otherwise a nullity for any other reason, for example, passed against a
wrong person, it cannot be said that such challenge would be per se not
maintainable." We are inclined to agree inasmuch as it would be a
challenge to an existing order of detention which is posing an
imminent threat to a fundamental right of the named person
F guaranteed under Art. 21. There could, therefore, be no reason why in
such an exceptional and rare case, detention order already made, and
either served or yet to be served, and the person is still free could not
be legally brought under challenge.
Article 226(1) of the Constitution of India notwithstanding any-
G thing in Article 32, empowers the High Court throughout the terri-
tories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government
within those territories directions, orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo wam;mto
and certiorari, or any of them, for the enforcement of any of the rights
H conferred by Part III and for any other purpose; and it also envisages
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. ISAIKIA, J.] 115
making of interim orders, whether by way of injunction or stay or in
A
any other manner in such a proceeding. Article 21 giving protection of
life and personal liberty provides that no person shall be deprived of
his life or personal liberty except according to procedure established
by law. For enforcement of one's right to life and personal liberty
resort to Article'226(1) has thus been provided for. What is the ambit
of enforcement of the right? The word 'enforcement' has also been B
used in Article 32 of the Constitution which provides the remedy for
enforcement of rights conferred by Part III of the Constitution. The
word 'enforcement' has not been defined by the Constitution. Accord-
ing to Collins English Dictionary to enforce means to ensure obser-
vance of or obedience to a law, decision etc. Enforcement, according
to Webster's Comprehensive Dictionary, means the act of enforcing,
or the state of being enforced, compulsory execution; compulsion. c
Enforce means to compel obedience to laws; to compel performance,
obedience by physical or moral force. If enforcement means to impose
or compel obedience to law or to compel observance of law, we have
to see what it does precisely mean. The right to life and personal
liberty has been guaranteed as a.fundamental right and for its enforce- D
ment one could resort to Article 226 of the Constitution for issuance of
appropriate writ, order or direction. Precisely at what stage resort to
Article 226 has been envisaged in the Constitution? When a right is so
guaranteed, it has to be understood in relation to its orbit and its
infringement. Conferring the right to life and liberty imposes a cor-
responding duty on the rest of the society, including the State, to E
observe that right, that is to say, not to act or do anything which would
amount to infringement of that right, except in accordance with the
procedure prescribed by law. In other words, conferring the right on a
citizen involves the compulsion on the rest of the society, including the
State, not to jtifrlnge that right. The question is at what stage the right
can be enforced? Does a citizen have to wait till the right is infringed? F
Is there no way of enforcement of the right before it is actually
infringed? Can the obligation or compulsion on the part of the State to
observe the right be made effective only after the right is violated or in
other words can there be enforcement of a right to life and personal
liberty before it is actually infringed? What remedy will be left to a
person when his right to life is violated? When a right is yet to be G
violated, but is threatened with violation can the citizen move the
court for protection of the right? The protection of the right is to be
distinguished from its restoration or remedy after violation. When
right to personal liberty is guaranteed and the rest of the society,
including the State, is compelled or obligated not to violate that right,
and if someone has threatened to violate it or its violation is imminent, H
116 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
and the person whose right is so threatened or its violation so
A imminent resorts to Article 226 of the Constitution, could not the
court protect observance of his right by restraining those who
threatened to violate it until the court examines the legality of the
action? Resort to Article 226 after the right to personal liberty is
already violated is different from the previolation protection. Post-
B violation resort to Article 226 is for remP,dy against violation and for
restoration of the right, while pre-violation protection is by compelling
observance of the obligation or compulsion under law not to infringe
the right by all those who are so obligated or compelled. To surrender
and apply for a writ of habeas corpus is a post-violation remedy for
re3toration of the right which is not the same as restraining potential
violators in case of threatened violation of the right. The question may
C arise what precisely may amount to threat or imminence of viola-
tion. Law surely cannot take action for internal thoughts but can act
only after overt acts. If overt acts towards violation have already be.en
done and the same has come to the knowledge of the person threa-
tened with that violation and he approaches the court under Art. 226
o giving sufficient particulars of proximate actions as would imminently
lead to violation of right, should not the court call upon those alleged
to have taken those steps to appear and show cause why they sho11ld
not be restrained from violating that right? Instead of doing so would it
be the proper course to be adopted to tell the petitioner that the court
cannot take any action towards preventive justice until his right is
E actually violated whereafter alone he could petition for a writ of
habeas corpus? In the instant case when the writ petition was pending
in court and the appellant's right to personal liberty happened to be
violated by taking him into custody in preventiv'e detention, though he
was released after four days, but could be taken into custody again,
would it be proper for the court to reject the earlier writ petition and
F tell him that his petition has become infructuous and he had no
alternative but to surrender and then petition for a writ of habeas
corpus? The difference of the two situations, as we have seen, have
difference legal significance. If a threatened invasion of a right is
removed by restrainlng the potential violator from taking any steps
towards violation, the rights remain protected and the compulsion
G against its violation is enforced. If the right has already been violattd,
what is left is the remedy against such violation and for restoration of
the right.
In K.K. Kochunni v. The State of Madras and Ors., [1959] Suppl.
2 SCR 316, where the grievance of the petitioner was that the Madras
H Marumakkathayam (Removal of Doubts) Act, 1955 (Act 32 of 1955),
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. [SAIKIA, J.] 117
provided in section 2 of the Act that notwithstanding any decision of
court any Sthanam which fulfilled the conditions stated in the section A
shall be deemed to be and shall be deemed always to have been pro-
perties belonging to the tarwad to which the provisions of the Madras
Marumakkathayam Act, 1932 shall apply, and thus, unlike other Acts
that contemplated some further action to be taken by the State after
the enactment had come into force, automatically took away or ab- B
ridged a person's fundamental right (as right to property then was)
immediately it came into force, a Constitution Bench of this Court
speaking through Das C.J. held that there was no reason why the
aggrieved person should not immediately be entitled to seek the
remedy under Art. 32 of the Constitution. The argument that an appli-
cation under Art. 32 could not be maintained until the State had taken
or threatened to take any action under the impugned law which again, c
if remedy to be taken would infringe the petitioner's fundamental
rights, was negatived by· this Court holding that in cases arising under
those enactments the proprietors could invoke the jurisdiction of this
Court under Art. 32 when the State did or .threatened to do the overt
act, (emphasis supplied). It was observed that quite conceivably an D
enactment may immediately on its coming into force take away or
abridge the fundamental rights of a person by its very terms and with-
out any further overt act being done. The impugned Act was said to be
an instance of such enactment. In such a case, it was held, the infringe-
ment of the fundamental right was complete eo instanti the passing of
the enactment and, therefore, there could be no reason why the person E
so prejudicially affected by the law should not be entitled immediately
to avail himself of the constitutional remedy under Art. 32. It was also
observed that to say that a person, whose fundamental right had been
infringed by the mere operation of an enactment, was not entitled to
invoke the jurisdiction of this Court under Art. 32, for the•enforcement
of his right would be to deny the benefit of a salutary constitutional F
remedy which was itself his fundamental right. The same reasoning ts
applicable to the facts of the instant case inasmuch as the detention
order was already passed and served and the appellant was already
taken into custody and though released after 4 days the Government
could at any time cancel his release under section 15 of the Act.
G
In the Special Reference No. 1 of 1964, reported in [1965] 1 SCR
413 the Constitution Bench speaking through Gajendragadkar, C.J.
held (at page 493): ,
"If a citizen moves this Court and complains that his funda-
mental right under Art. 21 had been contravened, it wo'1d H
.I
118 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
plainy be the duty of this Court to examine the merits of the
A
said contention, and that inevitably raises the question as
to whether the personal liberty of the citizen has been ta-
ken away according to the procedure established by law. In
fact, this question was actually considered by this Court in
the case of Pandit Sharma, [1959] Supp. 1SCR806."
B
The same law applies to a High Court moved under Article 226 of the
Constitution of India against similar contravention.
In M.C. Mehta v. Union of India, [1987] 1 SCC 395, the Con-
stitution Bench speaking through Bhagwati, C.J. said:
c "We are also of the view that this Court under Article 32(1)
is free to devise any procedure appropriate for the particu-
lar purpose of the proceeding, namely, enforcement of a
fundamental right and under Article 32(2), the Court has
the implicit power to issue whatever direction, order or
D writ is necessary in a given case, including all incidental or
ancillary power necessary to secure enforcement of the
fundamental right. The Power of the Court is not only
injunctive in ambit, that is, µreventing the infringement of
a fundamental right, but it is also remedial in scope and
provides relief against a breach of the fundamental right
E already committed vide Bandhua Mukti Morcha case, 1984
2 SCR 67. If the court were powerless to issue any direc-
tion, order or writ in cases where a fundamental right has
already been violated, Article 32 would be robbed of all its
efficacy, because then the situation would be that if a
fundamental right is threatened to be violated, the court
F can injunct such violation but if the violator is quick
enough to take action infringing the fundamental right, he
.would escape from the net of Article 32. That would, to a
large extent, emasculate the fundamental right guaranteed
under Article 32 and render it impotent and futile."
G "Despite the power of the State" says Jean Dabin, "there are
al')Vays smart people who contrive to violate the laws without incurring
the rigours of compulsion; or, again, certain rules are psychologically
or technically awkward to apply, so that the machinery of compulsion
lends them but insufficient aid. In any case, actual inefficacy or impo-
tence of compulsion can affect the validity of the rule even less than
H disobedience; that validity binds, and continues to bind, by virtue of
S.M.D. KIRAN PASHA v. GOVT. OF. A.P. {SAIKIA, J.] 119
the very disposition made by the rule."
A
Analytical positivist concept of right has been differently
analysed. Hohfeld writing on fundmental legal concepts as applied in
judicial reasoning analysis four ideas. One of those is that a right may
be claim-right. P has a right to do X, it means to indicate that Q or
everyone else has a duty to let P do X. The existence of such a duty B
gives P some sort of claim against Q. Claim-rights may be either in
personam or in rem. A claim-right in personam co-relates to a duty of
a person, while claim-rights in rem co-relate to duties in principle
incumbent on everyone. A right enjoyed by one thus co-relates to a
duty on the part of others.
In Hans Kelsen's analysis it is usual to oppose the concept of c
right to the concept of obligation and to cede priority of rank to the
former as we speak of rights and duties. The behaviour of one indi-
vidual that corresponds to the obligated behaviour of the other is
usually designated as a content of a 'right'-as an object of a 'claim' that
corresponds to the obligation. "The behaviour of the one individual D
that corresponds to the obligated behaviour of the other, particularly
the claiming of the obligated behaviour, is designated as exercising a
right." In case of an obligation to tolerate something, the behaviour of
the one corresponding to the obligation of the other is spoken of as
'enjoyment' of the right. According to Kelsen the 'right' or a 'claim' of
an individual, is merely the obligation of the other individual or indi- E
viduals. When we speak of a right as a legally protected interest, in the
,.,ords of Kelsen, it refers to a right as the "reflex of a legal obligation".
Right is often understood as a will power conferred by law. A "right' in
the sense is present if the conditions of the sanction that constitutes a
legal obligation includes a motion, normally of the individual in rela-
tion to whom the obligation exists; the motion is aimed at the execu- F
tion of the sanction and has the form of a legal action brought before
the law applying organ. Then this organ may apply the general norm to
effectuate the right, which is the reflex of the legal obligation by
executing the sanction. The right which is the reflex of legal obligation
is equipped with the legal power of the entitled individual to bring
about by a legal action the execution of a sanction as a reaction against G
the non-fulfilment of the obligation whose reflex is his right; or as it 1s
sometimes called, the enforcement of the fulfilment of this obligation.
To make use of this legal power of motion is exercise of the right. In
this sense each right of an individual contains a claim to the behaviour
of another individual-namely to that behaviour to which the second
individual is obligated toward the first; the behaviour that constitutes H
120 SUPREME COURT·REPORTS [1989] Supp. 2 S.C.R.
!fie content of the legal obligation identical with the reflex right. If an
A individual, towards which another individual is obligated to a certain
behaviour, does not have the legal power to bring about by a legal
action the execution of a sanction as a reaction against the non-fulfil-
ment of the obligation, then the act by which he demands fulfilment of
the obligation has no specific legal effect; the act is legally irrelevant,
B except for not being legally prohibited. Therefore, a 'claim' as legally
effective act exists only when a law exists, which means that an indi-
vidual has the legal power. The subject of a right may be not only one
individual but two or several individuals, including the State.
In the language of Kelsen the right of an individual is either a
mere reflex right-the reflex of a legal obligation existing towards this
c individual; or a private right in the technical sense-the legal power
bestowed upon an individual to bring about by legal action the
enforcement of the fulfilment of an obligation existing toward him,
that is, the legal power. From the above analysis it is clear that in the
instant case the appellant's fundamental right to liberty is the reflex of
D a legal obligation of the rest of the society, including the State, and it is
the appellant's legal power bestowed upon him to bring about by a
legal action the enforcement of the fulfilment of that obligation exist-
ing towards him. Denial of the legal action would, therefore, amount
to denial of his right of enforcement of his right to liberty. A petition
for a writ of habeas corpus would not be a substitl)te for this
E enforcement.
We, therefore, proceed to consider the merits of this case instead
of remanding to the High Court to avoid further delay.
Mr. Bhandare's submission is that the detention order having not
F been approved by the State Government under sub-section (3) of
section 3 it had ceased to be in force after 12 days of its being made.
We find force in this submission on the facts of the case. Section 3 of
the Act provides the power to make detention orders. Sub-section (1)
thereof empowers the State Government to make a detention order.
Sub-section (2) empowers the State Government to authorise a Dis-
G trict Magistrate or a Commissioner of Police to. exercise the powers
conferred by sub-section (1) during such period as may be specified in
the order not exceeding three months at the first instance with power
1
to extend such period from time to time by any period not exceeding
three months at any one time. Admittedly, the impugned detention
order was passed by the District Magistrate in exercise of powers
:
H under section 2. Sub-section (3) is to the following effect:
S.M.D. KIRAN PASHA v. GOVT. OF. A.r [SAIKIA, J.J 121
"When any order is made under this section by an officer
A
mentioned in sub-section (2), he shall forthwith report the
fact to the Government together with the grounds on which
the order has been made and such other particulars as in his
opinion, have a bearing on the matter, and no such order
shall remain in force for more than iwelve days after the
. making thereof, unless, in the meantime, it has been B
approved by the Government."
Examining the records we find that before the High Court in the
Misc. case W.P.M.P. S.R. 51830 in the form of an Additional
Affidavit at para.11 it was urged:
"Apart from the infirmities stated above which vitiate the c
order, statutory requirement of reporting to the Govern-
ment and obtaining approval of the Government within the
prescribed time has not been complied with."
In the counter affidavit filed by the Collector and District Magis- D
trate in the High Court to the writ petition as well as the W.P.M.P.,
there was no reply to para 11 of the W .P .M.P. and it was nowhere
stated that the detention order was approved by the State Govern-
ment. In this Court in the Special Leave Petition Ground No. Vis as
follows:
"The Hon 'ble High Court has erred in not noting the
infirmity in the order of detention inasmuch as the
approval of State Government of Andhra Pradesh for the
order of the detention made by the District Magistrate,
Cuddapah was not obtained within the period of 12 days as
enjoined under sub-section (3) of section 3 of the Act. The F
order is therefore none st in law."
In the Counter Affidavit of the Collector and District Magistrate
there was not even a whisper in denial of tliis fact.
The learned counsel for the respondents at the hearing could not G
deny before us that the detention order had not been approved by the
Government within 12 days. On his request time was granted to
produce materials. He has now filed reply affidavit on behalf of the
respondents tothe_rejoinder affidavit filed by the appellant. Scanning
this affidavit also we do not find ·any statement that the detention
order was approved. Though the learned counsel submits that it ·was H
122 SUPREME COURT REPORTS [1989] Supp..2 S.C.R..
approved, in view of the above affidavits it cannot be acted upon. We
A have, therefore, no other alternative than to hold that the detention
order had not been approved by the State Government within 12 days
of its being made. The result is that the order could not claim in force
more than 12 days after making thereof and as such must be treated as
to have ceased to be in force and non·existent thereafter.
B l
Mr. Bhandare then submits that the case of the appellant was not
at all referred to the Advisory Board under section 10 of the Act. This
too has not been denied by the learned counsel for the respondents.
Section 10 of the Act provides for reference to the Advisory Board and
says:
c "In every case where a detention order has been made
under this Act, the Government shall within three weeks
from the date of detention of a person under the order,
place before the Advisory Board constituted by them under
section 9, the grounds on which the order has been made
D and the representation, if any; made by the person affected
by the order, and in the case where the order has been
made by an officer, also the report by such officer under
sub-section (3) of section 3."
Section 11 of the Act prescribes the procedure for the Advisory
E Board. Under sub-section (1) of section U, in any case where the
Advisory Board has reported that there is, in his opinion sufficient
cause for the detention of a person, the Government may confirm the
detention order and continue the detention of person concerned for.
such period not exceeding the maximum period specified in section 13
as they think fit. Under sub-section (2) thereof in any case where the
F Advisory Board has reported that there is, in his opinion, no sufficient
cause for the detention of the person concerned, the Government shall ·
revoke the detention order and cause the person to be released forth·
with. Thus section 10 makes it mandatory for the Government to place
the· ground on which the order has been made and the representation,
if any made by tbe person affected by the order and in the case where
G the order has been made by an officer also the report by officer under
sub-section (3) of section 3. This section prescribes a period Of 3 weeks
from the date of detention iirespective of whether the person con·
tinues to be in detention or not. Therefore, even though the detenu
was released, if the detention order was in force, his case was required
to be placed before the Advisory Board. This being a mandatory pro-
H vision and having not been complied with the detention order even if
, S.M.D. KIRAN PASHA v. GOVT. OF. A.P. ISAIKIA, J.J 123
otherwise it was in force, cannot be said to have been in force after A
three weeks. Under Article 22 of the Constitution of India a person
cannot be kept in detention beyond three months without referring his
case to an Advisory Board under the appropriate law. In either case
the appellant's case having not been referred to an Advisory Board the
detention order cannot be said to have remained in force after the
statutory period. It is, therefore, not necessary to go into the validity B
or otherwise of the grounds of detention.
In the result we set aside the impugned Judgment of the High
Court and hold that the detention order ceased to be in force after 12
days of making thereof and even if it was in force it ceased to be in
force for failure to refer the appellant's case to Advisory Board within c
the time prescribed by law; and accordingly we quash the same. The
appeal is accordingly allowed.
After the Judgment was finalised, another affidavit on behalf of
the respondents affirmed by one belonging to the office of the
Advocate-on-Record has been circulated. This affidavit is not accept- D
able. Even if it was accepted it would not affect the ultimate legal
position.
R.S.S. Appeal allowed.
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