{"id":76781,"date":"1979-08-10T00:00:00","date_gmt":"1979-08-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohammad-yousuf-rather-vs-the-state-of-jammu-kashmir-and-ors-on-10-august-1979"},"modified":"2015-05-14T23:38:04","modified_gmt":"2015-05-14T18:08:04","slug":"mohammad-yousuf-rather-vs-the-state-of-jammu-kashmir-and-ors-on-10-august-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohammad-yousuf-rather-vs-the-state-of-jammu-kashmir-and-ors-on-10-august-1979","title":{"rendered":"Mohammad Yousuf Rather vs The State Of Jammu & Kashmir And Ors on 10 August, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohammad Yousuf Rather vs The State Of Jammu & Kashmir And Ors on 10 August, 1979<\/div>\n
Equivalent citations: 1979 AIR 1925, \t\t 1980 SCR (1) 258<\/div>\n
Author: P Shingal<\/div>\n
Bench: Shingal, P.N.<\/div>\n
           PETITIONER:\nMOHAMMAD YOUSUF RATHER\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF JAMMU & KASHMIR AND ORS.\n\nDATE OF JUDGMENT10\/08\/1979\n\nBENCH:\nSHINGAL, P.N.\nBENCH:\nSHINGAL, P.N.\nSARKARIA, RANJIT SINGH\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1979 AIR 1925\t\t  1980 SCR  (1) 258\n 1979 SCC  (4) 370\n CITATOR INFO :\n R\t    1982 SC1315\t (5,6)\n R\t    1984 SC 444\t (14)\n\n\nACT:\n     Jammu &  Kashmir Public  safety Act 1978 Sec. 8(a) (i),\n8(3) (b),  Preamble-\"Acting in any manner prejudicial to the\nmaintenance of public order\"-Meaning-Scope of.\n     Constitution   of\t India,\t  Articles   19(1)(d),\t 21,\n22(4)(5)(6)(7) and 32.\n\n\n\nHEADNOTE:\n     The petitioner challenged his detention under the Jammu\nJUDGMENT:\n<\/pre>\n
were sent  to him  by way  of an  annexure to  the  District
\nMagistrate’s order of detention. The petitioner was informed
\nthat, if  he so\t desired, he  could make a representation to
\nthe Government against the alleged order of detention.\n<\/p>\n
     It was  argued on behalf of the petitioner that some of
\nthe grounds  of detention were so vague that he did not find
\nit possible  to exercise  his fundamental  right of making a
\nrepresentation under  article 22(5)  of the Constitution and
\nthat some of the grounds were irrelevant for the purposes of
\nmaking an order under section 8.\n<\/p>\n
^
\n     HELD: The\targument that  only the\t “preamble”  of\t the
\norder of  detention was\t vague but  not the  grounds is\t not
\ntenable. [264B]
\n     “Preamble”\t has   been  defined   “as  an\tintroductory
\nparagraph or  part in  a statute  deed,\t or  other  document
\nsetting forth the grounds and intention of it”. The preamble
\nthus betokens  that which  follows. The respondents’ counsel
\ndid not,  however, find\t it possible  to point out where the
\npreamble could\tbe said to begin, or to finish, and which of
\nthe paragraphs\tcould be  said to  constitute the grounds of
\ndetention as such. [262 G-H, 263A]
\n     This Court\t has disapproved of vagueness in the grounds
\nof detention  because that impinges on the fundamental right
\nof the\tdetenu under  article 22(5)  of the  Constitution to
\nmake a\trepresentation against\tthe order  of detention when
\nthe grounds on which the order has been made or communicated
\nto him.\t The purpose of the requirement is to afford him the
\nearliest opportunity of seeking redress against the order of
\ndetention. But,\t as is\tobvious, that  opportunity cannot be
\nsaid to\t be afforded when it is established that a ground of
\ndetention is  so vague\tthat  he  cannot  possibly  make  an
\neffective representation. Reference made to paragraphs which
\nwere held to be vague. [263E, H, 264 B-D]
\n     State of  Bombay v.  Atma\tRam  Sridhar  Vaidya<\/a>  (1951)
\nS.C.R. 167,  Tarapada De  and Ors.  v.\tThe  State  of\tWest
\nBengal,<\/a> (1951) S.C.R. 212, Dr. Ram Krishan Bhardwaj v. State
\nof Delhi  and Ors.<\/a>  (1953) S.C.R. 708, Shibban Lal Saxena v.
\nState oj  Uttar Pradesh\t [1954] S.C.R.\t418,  Rameshwar\t Lal
\nPatwari v. State of Bihar and Ors.,<\/a> [1968] 3 S.C.R. 587, and
\nPushkar Mukherjee and Ors. v. State of West Bengal,<\/a> [1969] 2
\nS.C.R. 635.\n<\/p>\n
259<\/span><\/p>\n
     It is  equally well settled that a ground is said to be
\nirrelevant when\t it has\t no connection with the satisfaction
\nof the\tauthority making  the order  of detention  under the
\nappropriate  law   and\t taking\t  any\tsuch   ground\tinto
\nconsideration vitiates\tthe order  of detention. It was held
\nthat  irrelevant  grounds  were,  nevertheless,\t taken\tinto
\nconsideration for  making the  impugned order,\tand that was
\nquite sufficient to vitiate it. [267A-B]
\n     Keshav Talpade  v. The  King Emperor, (1943) F.C.R. 49,
\nSatya Brata  Ghose v.  Mr.  Arif  Ali,\tDistrict  Magistrate
\nShibsagar, Jorhat  and Ors,<\/a>  (1974) 3 SCC 600, and K. Yadava
\nReddy  and  Ors.  v.  The  Commissioner\t of  Police,  Andhra
\nPradesh, Hyderabad  and Anr.,  I.L.R.  1972  Andhra  Pradesh
\n1025, affirmed.\n<\/p>\n
     Chinnappa Reddy, J. (Concurring)
\n^
\n     HELD: A  law providing  for  preventive  detention\t and
\naction taken  under such  a law,  to pass  muster,  have  to
\nsatisfy the  requirements of  both Articles 19 and 22 of the
\nConstitution. [268D-E]
\n     The  interpretation   of  Article\t 22(5)\tconsistently
\nadopted by  this Court\tis, perhaps,  one of the outstanding
\ncontributions of the Court in the cause of Human Rights. The
\nlaw is\tnow well  settled that a detenu has two rights under
\nArticle 22(5) of the Constitution (1) to be informed as soon
\nas may be, of the grounds on which the order of detention is
\nbased, that  is, the  grounds which  led to  the  subjective
\nsatisfaction of\t the  detaining\t authority  and\t (2)  to  be
\nafforded the earliest opportunity of making a representation
\nagainst the  order of  detention, that\tis, to\tbe furnished
\nwith  sufficient   particulars\tto  enable  him\t to  make  a
\nrepresentation which  on being\tconsidered may obtain relief
\nto him.\t The inclusion\tof  an\tirrelevant  or\tnon-existent
\nground among  other relevant  grounds is  as infringement of
\nthe first  of the  rights and the inclusion of an obscure or
\nvague ground  among other  clear and  definite grounds is an
\ninfringement of\t the second  of the  rights. In\t either case
\nthere is  an invasion  of the  Constitutional rights  of the
\ndetenu entitling  him to  approach the Court for relief. The
\nreason for  saying that\t the  inclusion\t of  even  a  single
\nirrelevant or  obscure ground  among  several  relevant\t and
\nclear grounds  is an invasion of the detenu’s constitutional
\nright is  that the Court is precluded from adjudicating upon
\nthe sufficiency\t of the grounds and it cannot substitute its
\nobjective decision  for the  subjective satisfaction  of the
\ndetaining authority. [269A-D]
\n     The argument  that only  that allegation  which was the
\nimmediate cause\t of the order of detention was to be treated
\nas the ground of detention and all other allegations recited
\nin the order of detention were to be treated as introductory
\nand  background\t  facts\t cannot\t be  accepted.\tThe  factual
\nallegations contained in the document supplied to the detenu
\nas  furnishing\t the  ground   of  detention  cannot  be  so
\ndissected. The\tlast straw which broke the camel’s back does
\nnot make  weightless the  other loads  on the  camel’s back.
\n[269 G-H, 270E]
\n     The expression ‘Naxalite’ conveys different meanings to
\ndifferent persons  depending  on  the  class  to  which\t one
\nbelongs, his  political hues and ideological perceptions. It
\nis  as\t vague\tor  as\tdefinite  as  all  words  describing
\nideologies such\t as “democracy” etc. It is a label which may
\nbe as misleading as any other. [270F-G, 271A]
\n     Expressions like ‘revolt’ and ‘revolution’ are flung by
\nall and sundry in all manner of context and it is impossible
\nto attach any particular significance to
\n260<\/span>
\nthe  use   of  such  expressions.  Every  turn\tagainst\t the
\nestablishment is  called ‘revolt’  and\tevery  new  idea  is
\nlabelled as  ‘revolutionary’. Without  specification of\t the
\nparticular  form   of  revolt\tand  revolution\t  which\t was
\nadvocated, the\tground of  detention  must  be\theld  to  be
\nirrelevant and vague. [271 C-D]
\n     A. K.  Gopalan v.\tState of Madras,<\/a> [1950] S.C.R. 88 R.
\nC.  Cooper   v.\t Union\t of  India,<\/a>   [1970]  3\t S.C.R.\t 530
\ndistinguished.\n<\/p>\n
&
\n     ORIGINAL JURISDICTION: Writ Petition No. 581 of 1979
\n     (Under Article 32 of the Constitution.)
\n     M.\t K.   Ramamurty,  Ramesh   Chand  Pathak   for\t the
\nPetitioner.\n<\/p>\n
     (Dr.) L.  M. Singhvi,  Altaf Ahmed and L. K. Pandey for
\nthe Respondents.\n<\/p>\n
     The Judgment  of R. S. Sarkaria and P. N. Shinghal, JJ.
\nwas delivered  by Shinghal, J. O. Chinnappa Reddy, J. gave a
\nseparate Opinion.\n<\/p>\n
     SHINGHAL J.,-This\tpetition of  Mohammad Yousuf  Rather
\nunder  article\t 32  of\t  the  Constitution  challenges\t his
\ndetention under\t section 8  (a) (i) of the Jammu and Kashmir
\nPublic Safety Act, 1978, hereinafter referred to as the Act.
\nThe order  of  detention  has  been  made  by  the  District
\nMagistrate of  Anantnag on  April 12, 1979, and it is not in
\ncontroversy that  it has  really been made under sub-section
\n(2) of section 8 of the Act on the basis of the satisfaction
\nprovided for  in sub-clause (i) of clause (a) of sub-section
\n(1) of that section. While the petitioner has stated that he
\ndid not receive the order of detention, and only the grounds
\nof detention  were communicated\t to him, his learned counsel
\nMr. Ramamurthi\thas  not  raised  any  controversy  on\tthat
\naccount. He  has in  fact given\t up several  other points on
\nwhich the  writ petition  has been  filed, and has contended
\nhimself by putting his arguments in two ways. Firstly he has
\nargued that  some of  the grounds  are\tso  vague  that\t the
\npetitioner  has\t not  found  it\t possible  to  exercise\t his
\nfundamental right  of making  a representation under article
\n22 (5) of the Constitution. Secondly he has argued that some
\nof the\tgrounds are  irrelevant for the purpose of making of
\nan order  under section\t 8 of  the Act.\t We shall  therefore
\nconfine ourselves  to a consideration of these two points of
\ncontroversy.\n<\/p>\n
     The grounds  of detention\thave admittedly been sent to
\nthe petitioner\tby  way\t of  an\t annexure  to  the  District
\nMagistrate’s order No. 49-54\/ST dated April 12, 1979. It has
\nbeen stated  therein that  the detention has been ordered on
\n“the grounds specified in the Annexure…which also contains
\nfacts relevant thereto,” and the peti-\n<\/p>\n
261<\/span><\/p>\n
tioner has  been informed  that he may make a representation
\nto the\tGovernment against  the order  of detention if he so
\ndesires. We  shall refer  to the annexure in a while, but it
\nmay be\tstated here that the counsel for the respondents has
\nnot found  it possible\tto contend  that no  part thereof is
\nvague. He  has however\ttried to  argue\t that  the  annexure
\ncontains a preamble as well as the grounds of detention, and
\nthat the  vagueness  of\t the  preamble\tcould  not  possibly
\njustify the  argument that the grounds of detention are also
\nvague. Learned\tcounsel has tried to support his argument by
\nreference to  the decision  of this  Court in Naresh Chandra
\nGanguli v.  State of  West Bengal  and others<\/a>.\tThe annexure
\nreads as follows,-\n<\/p>\n
     “You are  a die-hard Naxalite and you are notorious for
\n     your activities  which are\t proving prejudicial  to the
\n     maintenance of  public order.  You are  in the habit of
\n     organising meetings, secret as well as public, in which
\n     you instigate  the people\tto create  lawlessness which
\n     spreads panic  in the minds of a common people. You are
\n     also reported  to be  in the  habit of  going from\t one
\n     village  to  the  other,  with  intent  to\t compel\t the
\n     shopkeepers to  close down\t their shops and participate
\n     in the  meetings. You  are reported  to  have  recently
\n     started a\tcampaign in villages, asking the inhabitants
\n     not to  sell their\t extra paddy  crop to the Government
\n     and in  case they\tare compelled  to do so, they should
\n     manhandle the  Government\tofficials  deputed  for\t the
\n     purpose of purchasing shali on voluntary basis from the
\n     villagers.\n<\/p><\/blockquote>\n
\t  On 9-2-79 you, after compelling the shopkeepers to
\n     close  down   their  shops,   organised  a\t meeting  at
\n     Chowalgam and  asked the participants to lodge protests
\n     against the  treatment meted  out to Shri Z. A. Bhutto,
\n     late Prime\t Minister of Pakistan by General Zia-UI-Haq,
\n     in fact,  you did\tnot have  any sympathy\tfor the late
\n     Prime Minister,  but you  did it  with  the  intent  to
\n     exploit the situation and create lawlessness.
\n\t  On 23-3-79  you presided  over a meeting at Kulgam
\n     and delivered  a speech. Among other things, you passed
\n     derogatory remarks\t against Sheikh\t Mohd. Abdullah, the
\n     Chief Minister  of the  State  and\t compared  him\twith
\n     General Zia  of  Pakistan,\t said  that  he\t (the  Chief
\n     Minister) also  wants to become a dictator. You further
\n     stated that  the Mulas  of Kashmir\t are  preparing\t for
\n     distribution of  sweets on\t the day when Shri Bhutto is
\n     sent to gallows. You also stated that
\n262<\/span>
\n     the people\t of the State have been oppressed and blamed
\n     the Chief\tMinister for their oppression. You asked the
\n     audience to  shun the  life of  dishonour and  rise  is
\n     revolt against  oppression. You  went to  the extent of
\n     saying that India should vacate the forcible occupation
\n     of the  State, as\tthe Kashmir  question has not so far
\n     been settled. These irresponsible utterances of you are
\n     likely to\tcreate feelings\t of hatred  and enmity which
\n     will ultimately disturb the public order.
\n\t  On 29-3-1979 posters were found pasted on walls in
\n     Kulgam area  which were  got published by the CPI (ML).
\n     It was learnt that there was your hand in pasting these
\n     posters, the  posters were\t captioned ‘Inqalab ke bager
\n     koe hal nahin’. The contents of the poster, among other
\n     things, revealed  that it\tmade a mention of plebiscite
\n     saying that  the demand  was  given  up  with  ulterior
\n     motives. It  further  stated  that\t the  people  should
\n     prepare themselves for revolution.\n<\/p><\/blockquote>\n
\t  You\twere\talso   noticed\t  instigating\t the
\n     “Educational” (sic)  unemployed youth  who had recently
\n     gone on a hunger strike at Anantnag.\n<\/p><\/blockquote>\n
\t  On 4-4-1979  and 5-4-1979  after Mr.\tZ. A. Bhutto
\n     was hanged,  you were  found leading the unruly mobs in
\n     different villages\t and instigating  them\tto  set\t the
\n     house of  J.E.I. worker  on fire.\tAs a  result of this
\n     instigation a  number  of\thouses\twere  set  on  fire,
\n     property looted  and heavy damages caused to the people
\n     at village\t Rarigam. In  this connection a case FIR No.
\n     34\/79 U\/s\t395, 436,  148, 307 etc. has been registered
\n     at\t Police\t Station  Kulgam  against  you\tand  others.
\n     Property worth  thousands has  so\tfar  been  recovered
\n     during the investigation of this case.\n<\/p><\/blockquote>\n
\t  Your activities  are\thighly\tprejudicial  to\t the
\n     maintenance of  public order  and I  am convinced\tthat
\n     unless  you  are  detained,  large\t scale\tdisturbances
\n     resulting in wide spread loss to the public and private
\n     property and  to the  safety of  peaceful citizens will
\n     occur.”<\/p><\/blockquote>\n
     ‘Preamble’ has  been  defined  in\tthe  Oxford  English
\nDictionary to  mean “a\tpreliminary statement,\tin speech or
\nwriting; an  introductory paragraph,  section, or  clause; a
\npreface,  prologue,   introduction.”  It  has  further\tbeen
\ndefined there  as “an  introductory paragraph  or part\tin a
\nstatute deed,  or other\t document, setting forth the grounds
\nand intention  of it.” The preamble thus betokens that which
\nfollows. The  respondents’ learned  counsel has\t not however
\nfound it possible to point
\n263<\/span>
\nout where the preamble could be said to begin, or to finish,
\nand which  of the paragraphs could be said to constitute the
\ngrounds of detention as such.\n<\/p>\n
     As it is, in very first paragraph, which alone could be
\nsaid to\t be in\tthe nature of an introductory paragraph or a
\npreliminary statement,\tit has been stated, inter alia, that
\nthe petitioner\twas reported  to have  “recently” started  a
\ncampaign in  villages asking  the inhabitants  not  to\tsell
\ntheir extra  paddy crop\t to the\t Government and to manhandle
\nthe Government\tofficials in  case they were compelled to do
\nso. There  is however  no mention,  in any other part of the
\nannexure, of  the petitioner’s asking the inhabitants not to
\nsell their  paddy crop\tanywhere else  or to  manhandle\t the
\nGovernment  officials  deputed\tfor  its  purchase.  We\t are
\ntherefore unable  to think  that even the first paragraph is
\nin the\tnature of  a preamble to what has been stated in the
\nsubsequent paragraphs.\n<\/p>\n
     A reading of the first paragraph shows that it is vague
\nin several  respects. It does not state the places where the
\npetitioner is  said to\thave organised\tthe meetings, or the
\nnature of  lawlessness instigated  by him.  It does not also
\nmention the  names of the villages where he is said to be in
\nthe habit  of going  for compelling the shopkeepers to close
\ndown their  shops and  to participate  in the  meetings.  So
\nalso, it  does not mention the villages where the petitioner
\nwas reported  to have “recently” started the campaign asking
\nthe inhabitants\t not  to  sell\ttheir  extra  paddy,  or  to
\nmanhandle  the\t government  officials.\t  The  paragraph  is
\ntherefore undoubtedly very vague.\n<\/p>\n
     But  even\tif  the\t first\tparagraph  is  left  out  of
\nconsideration on  the pretext  that it is in the nature of a
\npreamble, the  fifth paragraph\tis quite vague, for while it
\nstates that  the  petitioner  was  noticed  instigating\t the
\neducated unemployed  youth who had recently gone on a hunger
\nstrike in Anantnag, the nature or the purpose of the alleged
\ninstigation has\t not been  stated so that it is not possible
\nto appreciate  whether it  could be  said to fall within the
\nmischief of clause (b) of sub-section (3) of section 8 which
\ndefines what  is meant\tby “acting in any manner prejudicial
\nto the\tmaintenance of\tpublic order”  within the meaning of
\nclause\t(a)  (i)  of  sub-section  (1)\tof  section  8.\t For
\ninstance,  if\tit  was\t noticed  that\tthe  petitioner\t was
\ninstigating the\t educated unemployed  youth to\tgo on hunger
\nstrike\tfor   the  purpose  of\tpressing  their\t demand\t for
\nemployment, that  would not  amount to\tacting in any manner
\nprejudicial to\tthe maintenance\t of public order as it would
\nnot be\tcovered by any of the four meanings assigned to that
\nexpression in clause (b) of sub-section (3) of section 8.\n<\/p>\n
264<\/span><\/p>\n
     The sixth\tparagraph is also vague, for while it states
\nthat the  petitioner was  found leading\t the unruly  mobs in
\ndifferent villages  and instigating  them to set fire to the
\nhouse of  the worker  of Jamaiat-e-Islami the names of those
\nvillages and  the name\tof the owner of burnt house have not
\nbeen stated.\n<\/p>\n
     It is  obvious therefore  that  the  above\t grounds  of
\ndetention are vague. This Court has disapproved of vagueness
\nin the\tgrounds of  detention because  that impinges  on the
\nfundamental right  of the  detenu under article 22(5) of the
\nConstitution to\t make a\t representation against the order of
\ndetention when\tthe grounds on which the order has been made
\nare communicated  to him.  The purpose of the requirement is
\nto afford  him the  earliest opportunity  of seeking redress
\nagainst the  order of  detention. But  as is  obvious,\tthat
\nopportunity cannot  be\tsaid  to  be  afforded\twhen  it  is
\nestablished that  a ground  of detention is so vague that he
\ncannot possibly\t make an effective representation. Reference
\nin this\t connection may\t be made to this Court’s decision in
\nState of  Bombay  v.  Atma  Ram\t Sridhar  Vaidya<\/a>  where\t the
\nguarantee of  article 22(5)  has been  characterised  as  an
\nelementary right  of a\tcitizen in  a free democratic state,
\nand it\thas been  held that  if a ground of detention is not
\nsufficient  to\t enable\t the   detained\t person\t to  make  a
\nrepresentation at  the earliest opportunity, it must be held
\nthat  his   fundamental\t right\tin  that  respect  has\tbeen
\ninfringed inasmuch  as the material conveyed to him does not
\nenable him  to make  the representation. So as the aforesaid
\ngrounds of  detention are  vague, the petitioner is entitled
\nto an  order of\t release for  that reason  alone. It is true
\nthat, as  has been  held in  Naresh Chandra  Ganguli’s case,
\n(supra) “vagueness” is a relative term, and varies according
\nto the\tcircumstances of  each case, but if the statement of
\nfacts contains any ground of detention which is such that it
\nis not\tpossible for  the detenu  to clearly understand what
\nexactly is  the allegation  against him,  and he  is thereby
\nprevented from\tmaking an  effective representation, it does
\nnot require much argument to hold that one such vague ground
\nis sufficient to justify the contention that his fundamental
\nright under clause (5) of article 22 of the Constitution has
\nbeen violated  and the\torder of  detention is\tbad for that
\nreason alone.  Reference in this connection may also be made
\nto the\tdecisions in  Tarapada De and others v. The State of
\nWest Bengal,  Dr. Ram Krishan Bhardwaj<\/a> v. State of Delhi and
\nother Shibban Lal Saxena v. State of Uttar Pradesh Rameshwar
\nLal Patwari<\/a> v. State of
\n265<\/span>
\nBihar, Motilal Jain v. State of Bihar and others and Pushkar
\nMukherjee and others<\/a> v. State of West Bengal.\n<\/p>\n
     It has  next been argued by the learned counsel for the
\npetitioner that\t at least  five of  the grounds of detention
\nare irrelevant.\n<\/p>\n
     It has  been stated  in paragraph\t2 of  the grounds of
\ndetention that\tafter compelling  the shopkeepers  to  close
\ndown  their  shops  on\tFebruary  9,  1979,  the  petitioner
\norganised a  meeting at Chowalgam and asked the participants
\nto lodge  a protest  against the treatment meted out to Shri
\nZ. A.  Bhutto, and that while in fact the petitioner did not
\nhave any  sympathy for\tthe late Prime Minister of Pakistan,
\nhe did it with the intention of exploiting the situation and
\nto create  lawlessness. We  have made  a reference to clause\n<\/p>\n
(b) of sub-section (3) of section 8 of the Act which defines
\nwhat is\t meant by  “acting in  any manner prejudicial to the
\nmaintenance of\tpublic order”  in sub-section  (1)  of\tthat
\nsection, but  the ground  mentioned in\tthe second paragraph
\ndoes not  fall within the purview of any of the four clauses
\nof clause  (b) as  it does  not state  that  the  petitioner
\npromoted, propagated,  or attempted  to create\tfeelings  of
\nenmity or hatred or disharmony on grounds of religion, race,
\ncaste, community,  or region,  or that\the made preparations
\nfor using  or attempting  to use,  or using, or instigating,
\ninciting, provoking,  or otherwise abetting the use of force
\nin a  manner which  disturbed or  was likely  to disturb the
\npublic order  within the meaning of sub clauses (i) and (ii)
\nof clause  (b). As is obvious, the remaining two sub-clauses\n<\/p>\n
(iii) and  (iv) can  possibly have  no\tapplication  to\t the
\nallegation in  paragraph 2.  The ground\t contained  in\tthat
\nparagraph  was\t therefore  clearly   irrelevant   for\t the
\nsatisfaction of\t the District  Magistrate in making an order
\nof detention under section 8(2) of the Act.\n<\/p>\n
     Then it  has  been\t stated\t in  paragraph\t3  that\t the
\npetitioner presided over a meeting at Kulgam and delivered a
\nspeech where,  among other  things,  he\t passed\t “derogatory
\nremarks against Sheikh Mohd. Abdullah, the Chief Minister of
\nthe State and compared him with General Zia of Pakistan, and
\nsaid that  he (the  Chief Minister)  also wants\t to become a
\ndictator.” That\t allegation also does not fall within any of
\nthe four  sub-clauses of  clause (b)  of sub-section  (3) of
\nsection 8,  as\tit  does  not  refer  to  the  promoting  or
\npropagating or\tattempting to  create feelings\tof enmity or
\nhatred or  disharmony on  grounds of  religion, race, caste,
\ncommunity or  region or\t making of preparations for using or
\nattempting to  use,  or\t using,\t or  instigating,  inciting,
\nprovoking or other-\n<\/p>\n
266<\/span><\/p>\n
wise abetting the use of force in any manner whatsoever. For
\nthis allegation\t also, the  remaining two sub-clauses are of
\nno relevance.  What has\t been alleged is that the petitioner
\nstated in  his speech  at the Kulgam meeting that the people
\nof the\tState had  been oppressed,  that he blamed the Chief
\nMinister  for  their  oppression,  and\tthat  he  asked\t his
\naudience to  “shun the\tlife of dishonour and rise in revolt
\nagainst\t oppression.”  It  has\tnot  been  stated  that\t the
\npetitioner thereby  promoted,  propagated  or  attempted  to
\ncreate feelings of enmity or hatred or disharmony on grounds
\nof religion,  race, caste,  community, or region, or that he
\ninstigated or incited or provoked the audience to use force.
\nPeaceful and  lawful revolt,  eschewing violence,  is one of
\nthe well  known modes  of seeking redress in this country. A
\nsubstantial part  of the  statement of\tfacts  mentioned  in
\nparagraph  3  of  the  grounds\tof  detention  is  therefore
\nirrelevant and\tcan not justify the order of detention under
\nsection 8 of the Act.\n<\/p>\n
     It has  been stated  in paragraph\t4 that\ta poster was
\nfound pasted  on walls\tin Kulgam area on March 29, 1979, in
\nthe pasting  of which  the petitioner had a hand. The poster
\nwas captioned  “Inqilab ke  baghair koi\t hall nahin”, and it
\nmentioned that\tthe demand  for plebiscite was given up with
\nulterior motives.  It further  said that  the people  should
\nprepare themselves  for revolution.  But  even\tif  it\twere
\nassumed that  the petitioner had hand in pasting the poster,
\nwhich is  alleged to have been published by the CPI (ML), it
\ncannot\tbe   said  that\t he  thereby  acted  in\t any  manner
\nprejudicial to\tthe maintenance\t of public  order,  for\t his
\nalleged action did not fall within the purview of any of the
\nsubclauses of  clause (b) of sub-section (3) of section 8 of
\nthe Act.  Apart from  the fact\tthat it\t has not been stated
\nthat the  poster promoted,  or propagated  or  attempted  to
\ncreate feelings of enmity or hatred or disharmony on grounds
\nof religion,  race, caste,  community etc.,  it has also not
\nbeen stated that the poster instigated, incited, provoked or
\notherwise abetted the use of force so as to amount to acting
\nin any\tmanner prejudicial  to\tthe  maintenance  of  public
\norder. As has been stated, a revolution can be brought about
\nby peaceful  and lawful\t means, and  asking  the  people  to
\nprepare themselves  for it  cannot be  a ground of detention
\nunder section 8.\n<\/p>\n
     We have  made a reference to paragraph 5 of the grounds
\nof detention,  which states  that the petitioner was noticed
\ninstigating the\t educated unemployed  youth who\t had gone on
\nhunger strike  at Anantnag,  to show  the vagueness  of that
\nground. It  may further\t be  stated  that  it  is  quite  an
\nirrelevant ground  also, because  any such instigation could
\nnot be said to fall within the purview of clause (b) of sub-
\nsection (3) of section 8.\n<\/p>\n
267<\/span><\/p>\n
     It is  well  settled  that\t a  ground  is\tsaid  to  be
\nirrelevant when\t it has\t no connection with the satisfaction
\nof the\tauthority making  the order  of detention  under the
\nappropriate law.  It nevertheless appears that the aforesaid
\nirrelevant grounds  were taken into consideration for making
\nthe impugned  order, and that is quite sufficient to vitiate
\nit.  Reference\tin  this  connection  may  be  made  to\t the
\ndecisions in Keshav Talpade v. The King Emperor, Tarapada De
\nand others  v. State  of West  Bengal (supra),\tShibban\t Lal
\nSaxena v. State of Uttar Pradesh and others<\/a> (supra), Pushkar
\nMukherjee and  others v. State of West Bengal<\/a> (supra), Satya
\nBrata Ghose v. Mr. Arif Ali, District Magistrate, Sibasagar,
\nJorhat and  others and<\/a>\tto K. Yadava Reddy and others v. The
\nCommissioner  of  Police,  Andhra  Pradesh,  Hyderabad,\t and
\nanother. It  has been  held there  that even  if one  of the
\ngrounds of  detention is  irrelevant, that  is sufficient to
\nvitate the  order. The\treason is that it is not possible to
\nassess in  what manner\tand to\twhat extent  that irrelevant
\nground operated on the mind of the appropriate authority and
\ncontributed  to\t  provide  the\t satisfaction  that  it\t was
\nnecessary to detain the petitioner with a view to preventing
\nhim from acting in any manner prejudicial to the maintenance
\nof the public order.\n<\/p>\n
     It is  obvious that the detention of the petitioner was
\nillegal, and  that is why we made an order on August 3, 1979
\nfor his release.\n<\/p>\n
     CHINNAPPA REDDY,  J.-A good  deal of  vehement argument
\nwas  advanced  by  Dr.\tSinghvi\t to  sustain  the  order  of
\ndetention and  this has led me to add this brief note to the
\nopinion of my brother Shinghal, J., with whose conclusions I
\nagree.\n<\/p>\n
     The  Constitution\t of  India   recognizes\t  preventive
\ndetention as a necessary evil, but, nonetheless, an evil. So
\nwe have, by constitutional mandate, circumscribed the making
\nof laws providing for preventive detention. While Article 22
\nClauses (4), (5), (6) and (7) expressly deal with preventive
\ndetention, Article  21 provides\t that  no  person  shall  be
\ndeprived of his life or personal liberty except according to
\nprocedure  established\t by  law   and\tArticle\t  19(1)\t (d)
\nguarantees to  citizens the  right to move freely throughout
\nthe territory  of India\t subject to  reasonable restrictions
\nmade in\t the interests of the general public as mentioned in
\nArticle 19(5).\tAt one\ttime it\t was thought that Article 22
\nwas  a\tcomplete  code\tin  regard  to\tlaws  providing\t for
\npreventive detention  and that\tthe validity  of an order of
\ndetention should  be determined\t strictly according  to\t the
\nterms and “within the four corners of that
\n268<\/span>
\narticle”. It  was held\tin A.K.\t Gopalan v. State of Madras,<\/a>
\nthat a\tdetenu may  not claim that the freedom guaranteed by
\nArticle 19(1)  (d) was\tinfringed by his detention, and that
\nthe validity  of the  law providing for preventive detention
\nwas not\t to be\ttested in the light of the reasonableness of
\nthe restrictions imposed thereby on the freedom of movement,
\nnor on\tthe ground  that his  right to\tpersonal liberty was
\ninfringed otherwise  than according to procedure established
\nby law.\t A theory  was evolved that the nature and extent of
\nthe Fundamental\t Rights was to be measured by the object and
\nform of\t the State  action and\tnot by\tthe operation of the
\nState action upon the rights of the individual. This has now
\nbeen shown to be wrong. In R.C. Cooper v. Union of India the
\nFull Court<\/a>  opted for a broader view and it was held that it
\nwas not the object of the authority making the law impairing
\nthe right  of the citizen, nor the form of action taken that
\ndetermined the\tprotection the\tcitizen could  claim; it was
\nthe effect of the law and of the action upon the right which
\nattracted the jurisdiction of the Court to grant relief. So,
\nin that\t case, they  rejected the  submission  that  Article
\n31(2) was a complete code in relation to the infringement of
\nthe right  to property\tby compulsory  acquisition  and\t the
\nvalidity of the law was not to be tested in the light of the
\nreasonableness of  the restrictions  imposed thereby.  So it
\nfollows that  a law  providing for  preventive detention and
\naction taken  under such  a law, to pass muster, have now to
\nsatisfy the  requirements of  both Articles 19 and 22 of the
\nConstitution.\n<\/p>\n
     We are  primarily concerned  in this  case with Article
\n22(5) which is as follows:\n<\/p>\n
\t  “When any  person is\tdetained in  pursuance of an
\n     order made\t under\tany  law  providing  for  preventive
\n     detention, the  authority making  the order  shall,  as
\n     soon as  may be, communicate to such person the grounds
\n     on which  the order  has been made and shall afford him
\n     the earliest  opportunity of  making  a  representation
\n     against the order”.<\/p><\/blockquote>\n
     The extent\t and the  content of Article 22(5) have been
\nthe subject  matter of repeated pronouncements by this Court
\n(Vide, State  of Bombay v. Atmaram, Dr. Ramkrishna Bharadwaj
\nv. State  of Delhi,  Shibbanlal Saxena\tv.  State  of  Uttar
\nPradesh, Dwarkadas Bhatia<\/a> v.\n<\/p>\n
269<\/span><\/p>\n
State of  Jammu &  Kashmir. The\t interpretation\t of  Article
\n22(5), consistently  adopted by this Court, is, perhaps, one
\nof the\toutstanding contributions  of the Court in the cause
\nof Human  Rights. The  law is now well settled that a detenu
\nhas two\t rights under Article 22(5) of the Constitution: (1)
\nTo be  informed, as  soon as may be, of the grounds on which
\nthe order  of detention is based, that is, the grounds which
\nled  to\t  the  subjective   satisfaction  of  the  detaining
\nauthority and (2) to be afforded the earliest opportunity of
\nmaking a representation against the order of detention, that
\nis, to\tbe furnished  with sufficient  particulars to enable
\nhim to\tmake a\trepresentation which on being considered may
\nobtain relief to him. The inclusion of an irrelevant or non-
\nexistent  ground   among  other\t  relevant  grounds   is  an
\ninfringement of the first of the rights and the inclusion of
\nan obscure  or vague  ground among  other clear and definite
\ngrounds is  an infringement  of the second of the rights. In
\neither case  there is  an  invasion  of\t the  Constitutional
\nrights of the detenu entitling him to approach the Court for
\nrelief. The  reason for\t saying that the inclusion of even a
\nsingle irrelevant  of obscure  ground among several relevant
\nand  clear   grounds  is   an  invasion\t  of  the   detenu’s
\nconstitutional right  is that  the Court  is precluded\tfrom
\nadjudicating upon  the sufficiency  of the  grounds  and  it
\ncannot substitute  its objective decision for the subjective
\nsatisfaction of the detaining authority.\n<\/p>\n
     Dr. Singhvi  very strenuously  submitted that the first
\nparagraph of the ‘grounds’ supplied to the petitioner was of
\nan introductory\t nature, that  Paragraphs  2,  3,  4  and  5
\nreferred to  the events\t which furnished  the background and
\nthat the  penultimate paragraph\t alone contained the grounds
\nof detention  as such.\tHe submitted that it was permissible
\nto separate  the introduction  and  the\t recital  of  events
\nconstituting the  background from  the grounds\tof detention
\nand if\tthat was done it would be apparent that the order of
\ndetention suffered  from no  infirmity. He  sought  to\tdraw
\nsupport for  his submission  from  the\tdecision  in  Naresh
\nChandra Ganguli v. State of West Bengal and others<\/a>.\n<\/p>\n
     It is  impossible to  agree with  the submission of Dr.
\nSinghvi. The  annexure to  the order  of detention detailing
\nthe grounds  of detention  has been  fully extracted  by  my
\nlearned brother\t Shinghal, J.  we  are\tunable\tto  see\t how
\nfactual\t allegations   such  as\t  those\t contained   in\t the
\nparagraphs 1 to 5 of the grounds of detention can be said to
\nbe merely introductory or as constituting the background. In
\nNaresh Chandra Ganguly v. State of West Bengal what was read
\nby the\tSupreme Court  as the  ‘preamble’ was the recital in
\nterms of Section 3(1)
\n270<\/span>
\nclauses (a) and (b) of the Preventive Detention Act, namely,
\nthat the  detenu  was  being  detained\tin  pursuance  of  a
\ndetention order\t made in  exercise of the power conferred by
\nSection 3 of the Preventive Detention Act on the ground that
\nthe detenu  was\t acting\t in  a\tmanner\tprejudicial  to\t the
\nmaintenance of\tpublic order as evidenced by the particulars
\ngiven thereafter.  The particulars  given in  the subsequent
\nparagraphs, the\t Court said,  constituted the grounds. We do
\nnot understand\tNaresh Chandra\tGanguly v. The State of West
\nBengal as  laying down\tthat it is permissible to dissect or
\ntrisect\t the   grounds\tof   detention\tinto   introduction,
\nbackground and\t‘grounds’ as  such. There  is no warrant for
\nany such division.\n<\/p>\n
     The  distinction\tmade  in  Naresh  Chandra  Ganguly’s
\n(supra) case  between the  ‘preamble’, meaning\tthereby\t the
\nrecital\t in   terms  of\t the  statutory\t provision  and\t the
\n‘grounds’ meaning  thereby the conclusions of fact which led
\nto the\tpassing of  the order  of detention does not justify
\nany  distinction  being\t made  between\tintroductory  facts,
\nbackground facts,  and ‘grounds’ as such. All allegations of
\nfact which have led to the passing of the order of detention
\nare  ‘grounds\tof  detention’.\t  If  such  allegations\t are
\nirrelevant or vague the detenu is entitled to be released.\n<\/p>\n
     The attempt of Dr. Singhvi was to treat that allegation
\nwhich according\t to him was the immediate cause of the order
\nof detention  as the  only ground of detention and all other
\nallegations earlier made as were introductory and background
\nfacts. We  are unable  to so dissect the factual allegations
\nmentioned  in\tthe  document  supplied\t to  the  detenu  as
\nfurnishing the\tgrounds of  detention. The  last straw which
\nbreaks a  camel’s back\tdoes not  make weightless  the other
\nloads on the camel’s back.\n<\/p>\n
     The grounds  of detention begin with the statement that
\nthe detenu is a ‘die-hard Naxalite’. Dr. Singhvi described a
\nNaxalite as  a ‘votary\tof change by resort to violence’ and
\nurged that  as the meaning ascribed to the expression by the
\ndaily press  (Marxist Exclamation:  the Capitalist Press !).
\nMany may not agree with Dr. Singhvi. Some think of Naxalites
\nas blood-thirsty monsters; some compare them to Joan of Arc.
\nIt all\tdepends on  the class  to which\t one belongs,  one’s
\npolitical hues and ideological perceptions.) At one stage of
\nthe argument  Dr. Singhvi himself described a Naxalite as an
\n‘ideological revolutionary’.  The detenu  himself apparently
\nthought that it meant no more than that he was a believer in
\nthe  Marxist-Leninist\tideology  and  so  he  affirmatively
\ndeclared that  he was  a firm  believer in that ideology and
\nwas proud  of  that  fact.  Though  he\tdid  urge  that\t the
\nexpression
\n271<\/span>
\nNaxalite connoted a person who sought change through violent
\nmeans, Dr.  Singhvi had,  ultimately, to  confess  that\t the
\nexpression ‘Naxalite’  was as  definite or  as vague  as all
\nwords describing  ideologies, such  as democracy etc., were.
\nIt is  enough to say that it is just a label which can be as
\nmisleading as  any other  and is, perhaps, used occasionally
\nfor that very purpose.\n<\/p>\n
     In the  third paragraph  of the grounds of detention it
\nis said\t that the detenu made a speech in which he asked his
\naudience to  shun the  life of\tdishonour and rise in revolt
\nagainst oppression.  In the fourth paragraph he is stated to
\nbe responsible\tfor posters bearing the caption “No solution
\nwithout revolution”.  It is  also stated  that\tthe  posters
\nasked the  people to prepare themselves for revolution. Now,
\nexpressions like  ‘revolt’ and\t‘revolution’ are flung about
\nby all\tand sundry  in all  manner  of\tcontext\t and  it  is
\nimpossible to  attach any particular significance to the use
\nof such expressions. Every turn against the establishment is
\ncalled\t‘revolt’   and\tevery\tnew  idea   is\tlabelled  as
\n‘revolutionary’.  If   the  mere  use  of  expressions\tlike
\n‘revolt’ and  ‘revolution’ are\tto land\t a person behind the
\nbars what  would be the fate of all our legislators ? It all
\ndepends on  the context\t in which  the expressions are used.
\nNeither paragraph three nor paragraph four of the grounds of
\ndetention  specifies   the  particular\tform  of  revolt  or
\nrevolution which  the detenu advocated. Did he incite people
\nto violence  ? What words did he employ ? What, then, is the
\nconnection between  these grounds  and “acting in any manner
\nprejudicial to\tthe maintenance of the public order” ? There
\nis no  answer to  be gleaned  from the\tgrounds\t recited  in
\nparagraphs three  and four  which must therefore, be held to
\nbe both irrelevant and vague.\n<\/p>\n
     In paragraph five it is said that the detenu instigated
\neducated unemployed youth to go on a hunger strike. A hunger
\nstrike, in  our country,  is a\twell known  form of peaceful
\nprotest but  it is  difficult  to  connect  it\twith  public
\ndisorder. We  consider this  ground also  to  be  vague\t and
\nirrelevant. The\t allegation that  the detenu made derogatory
\nremarks about  Shri Sheikh Mohammed Abdullah, Chief Minister
\nof Kashmir,  and compared  him with  General Zia of Pakistan
\nappears to  us, again,\tto be  entirely irrelevant. I do not
\nthink it  is necessary\tto refer  to all  the grounds in any
\nfurther detail as that has been done by my brother Shinghal,
\nJ.\n<\/p>\n
N. K. A.\t\t\t\t   Petition allowed.\n272<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohammad Yousuf Rather vs The State Of Jammu & Kashmir And Ors on 10 August, 1979 Equivalent citations: 1979 AIR 1925, 1980 SCR (1) 258 Author: P Shingal Bench: Shingal, P.N. PETITIONER: MOHAMMAD YOUSUF RATHER Vs. RESPONDENT: THE STATE OF JAMMU & KASHMIR AND ORS. DATE OF JUDGMENT10\/08\/1979 BENCH: SHINGAL, P.N. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-76781","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohammad Yousuf Rather vs The State Of Jammu & Kashmir And Ors on 10 August, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohammad-yousuf-rather-vs-the-state-of-jammu-kashmir-and-ors-on-10-august-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohammad Yousuf Rather vs The State Of Jammu & Kashmir And Ors on 10 August, 1979 - 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