Case Note & Summary
The appellant, a British citizen employed in the Accounts Branch of Head Post Office Birmingham and General Secretary of the United Kingdom Akali Dal, came to India on 6 November 1972 to attend the Bhog ceremony of Sant Fateh Singh, who had died on 30 October 1972. He was arrested on 16 November 1972 pursuant to an order of detention passed under Section 3(2) read with Section 3(1)(a)(i) and (ii) of the Maintenance of Internal Security Act, 1971. The detention order was approved by the State Government on 27 November 1972, the Advisory Board submitted its report on 4 January 1973, and the State Government confirmed the order on 16 January 1973. The grounds of detention alleged that on 11, 12 and 14 November 1972, the appellant addressed secret meetings at Gurdwara Rani Bazar Sharifpura, Amritsar and at Jullundur, where he instigated Sikhs to create hatred against Hindus, advocated the establishment of a separate Sikh homeland by force, assured funds from the U.K. Akali Dal, directed collection of arms and explosives, suggested creation of suicide squads, and advised forming cells in Sikh units of the Armed Forces and police to further the separatist agenda. The appellant filed a writ petition under Article 226 of the Constitution read with Section 491 of the Code of Criminal Procedure seeking a writ of habeas corpus. The High Court of Punjab and Haryana dismissed the petition on 28 May 1973. In the Supreme Court, the appellant contended that Section 3(1)(b) of MISA was beyond legislative competence, that Section 3(1)(a) could only be used to regulate the presence of a foreigner and not when he wanted to leave India, that preventive detention could only be ordered if it was apprehended that he would indulge in prejudicial activities within India, and that the Chief Minister's statement in the Punjab Legislative Assembly on 7 March 1973, which mentioned additional facts about the appellant's visit to Pakistan and his photograph with a Pakistani official, showed that the grounds for approval differed from the original grounds, indicating malice in law. The Supreme Court rejected all contentions. It held that clauses (a) and (b) of Section 3(1) deal with different powers; clause (a) is available even if the foreigner offers to leave India. Section 3(1)(b) was held to be within legislative competence under Entry 10 List I of the Seventh Schedule relating to foreign affairs. The court distinguished Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, and observed that the State's first duty is to survive and it could detain a person found in India whose activities, even if continued from abroad, would be prejudicial to the security and integrity of the country. Preventive detention was not punishment for an offence, and grounds need not amount to an offence. The court further held that the Chief Minister's statement did not establish malice in law because the District Magistrate could not have known of those facts at the time of making the order, and the additional information was merely given in response to a demand for release. Accordingly, the appeal was dismissed and the detention order was upheld.
Headnote
A) Constitutional Law - Preventive Detention - Foreigner Detention Under Section 3(1)(a) and Section 3(1)(b) - Maintenance of Internal Security Act, 1971, Sections 3(1)(a), 3(1)(b), 3(2) - The Supreme Court held that clauses (a) and (b) of Section 3(1) deal with different kinds of powers. Clause (a) permits detention of any person including a foreigner for the purposes mentioned, and clause (b) permits detention of a foreigner for regulating presence or arranging expulsion. Power under clause (a) is available even if the foreigner offers to leave the country to avoid preventive detention. Held that the detention order was validly made under clause (a). (Paras Not mentioned) B) Constitutional Law - Legislative Competence - Entry 10 List I Schedule VII - Maintenance of Internal Security Act, 1971, Section 3(1)(b) - The court held that clause (b) is within the legislative competence of Parliament under Entry 10 List I (foreign affairs), as legislative entries are to be interpreted broadly. Any legislation brought within the ambit of one or other legislative entry cannot be questioned on validity. Held that detaining authority can exercise power under either clause (a) or clause (b). (Paras Not mentioned) C) Preventive Detention - Scope of Section 3(1)(a) - Distinguished Hans Muller Case - Maintenance of Internal Security Act, 1971, Section 3(1)(a); Preventive Detention Act, 1950, Section 3(1)(b) - The court distinguished Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, holding that Section 3(1)(b) of Preventive Detention Act, similar to Section 3(1)(b) of MISA, conferred power to use preventive detention for expulsion, but that does not mean Section 3(1)(a) of MISA cannot be used for its plain purpose. Held that Section 3(1)(a) can be used against a foreigner engaging in prejudicial activities in India. (Paras Not mentioned) D) Preventive Detention - Grounds of Detention - Activities Outside India and Future Threat - Maintenance of Internal Security Act, 1971, Section 3(1) - The court held that if a person is found in India, his likely activities after leaving India, such as continuing prejudicial activities from England, could be relevant. The first duty of the State is to survive and it must deal with enemies both overt and covert. No extradition law is needed; detention is permissible if such a person happens to come to India. Held that detention is not limited to apprehensions of activities within the country. (Paras Not mentioned) E) Preventive Detention - Nature and Scope - Article 22 Constitution; Maintenance of Internal Security Act, 1971, Section 3(1) - Preventive detention is not a punishment for an offence, and grounds need not amount to an offence either in India or a foreign country. The Constitution makers in their wisdom provided for preventive detention in Article 22. The court must decide whether the activities for which a person was detained were prejudicial to the defence and security of India. Held that the argument requiring an offence basis was rejected. (Paras Not mentioned) F) Administrative Law - Malice in Law - Approval of Detention Grounds - Maintenance of Internal Security Act, 1971, Section 3 - The Chief Minister's statement in the Assembly mentioned additional facts not contained in the original grounds of detention, but the District Magistrate who made the order could not have known of those facts at that time. The Chief Minister was only giving additional information subsequently available. Held that the grounds for approval of detention were the same grounds on which he was detained, and no malice in law was established. (Paras Not mentioned)
Issue of Consideration
Whether a foreigner can be detained under Section 3(1)(a) of Maintenance of Internal Security Act, 1971 read with Section 3(2) when he offers to leave India; whether Section 3(1)(b) is beyond legislative competence of Parliament; whether the power under Section 3(1)(a) can be exercised for a foreigner who intends to leave India to avoid preventive detention; whether preventive detention under Section 3(1)(a) can be based on activities committed or likely to be committed outside India; whether the grounds for approval of detention were different from original grounds and whether malice in law was established; whether preventive detention grounds must amount to an offence in India or a foreign country.
Final Decision
The Supreme Court dismissed the appeal and upheld the detention order passed under Section 3(2) read with Section 3(1)(a)(i) and (ii) of Maintenance of Internal Security Act, 1971. It held that Section 3(1)(a) can be used to detain a foreigner even if he offers to leave India, Section 3(1)(b) is within legislative competence, and no malice in law was established.
Law Points
- Section 3(1)(a) of MISA empowers detention of any person including foreigner for purposes mentioned
- available even if foreigner offers to leave India
- Section 3(1)(b) is within legislative competence under Entry 10 List I Schedule VII
- preventive detention is not punishment for offence and grounds need not amount to offence
- activities prejudicial to security and integrity justify detention regardless of where they occur
- additional grounds disclosed subsequently by Chief Minister did not vitiate detention as detaining authority had not relied on them
- no malice in law shown
