|Case No.||Writ Petition no- 79 of 1965|
|Date of Judgment||07-09-1965|
|Court||Supreme Court of India|
|Subject||Constitution of India|
|Petitioner||Ram Manohar Lohia|
|Respondent||State of Bihar and Others|
|Relevant Provisions||Article 19 (2) and Article 32 of the Indian Constitution|
|Coram||Hon’ble A.K. Sarkar, J., Hon’ble M. Hidayatullah J., Hon’ble R.S. Bachawat J., Hon’ble Raghubar Dayal J., Hon’ble J.R. Mudholkar J.|
“Once a government is committed to the principle of silencing the voice
of opposition, it has only way to go, and that is down the path of increasingly repressive measures until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”
– Harry S. Truman
On 26th October 1962, the President of India practised his authority under Article 352, based on a decree of National crisis in India considering External animosity. On the same day as the decree was made, the President of India Passed the Defence of India Ordinance and rules. The statute was later supplanted by the Defence of India Act, 1962 which anyway proceeded in power made under the mandate. On 3rd November 1962 the President made and requested under Article 359 (1) which he was qualified to do, announcing that the privilege any individual to move the Court for the requirement of the rights presented by Article 21 and Article 22 of the Constitution will stay suspended for the period during which the declaration is in power. Dr Ram Manohar Lohia was kept under Section 30 of this Defence of India Act 1962.
Background of Detention Law
“Preventive Detention, the practice of incarcerating accused individuals before trial on the assumption that their release would not be in the best interest of society-especially, that they would be likely to commit additional crimes if they were released.”
Laws authorizing preventive detention has existed in British colonial rule in India since 1818. Many members of the freedom movement spent years in Jails without ever being tried and convicted. The power conferred on the Executive to arrest persons on suspicion can be traced to the early days of British Rule In India.
India turned out to be free in 1947, and the Constitution came into force in 1950. It is uncommon that the framers of the Indian Constitution, who endured mostly on account of the preventive Detainment Laws, didn’t spare a moment to give sacredness to the Preventive Confinement Laws and that too in the Crucial Rights section of the Constitution. A few pieces of Article 22 are not Essential Rights but rather are Major Perils to the residents of India for whom and purportedly by whom the Constitution was confined, to introduce another general public, with the opportunity of articulation and opportunity to partner accessible to all.
DR. Ram Manohar Lohia, a Socialist thinker, true Gandhian, and, member of the Lok Sabha was detained on the orders for District Magistrate of Patna J.N. Sahu. District Magistrate exercise of the force gave by provision subsection (b) of section 30 of Barrier of India Rule 1962. The detainment of DR. Lohia depended on the grounds of open wellbeing and support of Lawfulness. DR. Lohia is captured and confined in the Hazaribagh Prison until further requests. He documented a supplication against his detainment. He said that his confinement was illicit, the demonstration of organization is Malaya fire and noxious.
District Magistrate of Patna, who ordered to detain Dr Lohia, was satisfied that preventing him from acting any manner, prejudicial to any public safety and maintenance of law and order, under clause (b) of sub-section 1 of section 30 of Defence of India Rule 1962. Dr Lohia, who argued his case in person, claims to be released on a number of grounds. Ram Manohar Lohia, a member of the Lok Sabha, has moved the Court under Art. 32 of the Constitution for a writ of habeas corpus directing his release from detention under an order passed by the District Magistrate of Patna
Issues/Question of Law
- Whether the detention under the Defence of India rule is legal or illegal?
- Was the action of the Magistrate is Mala Fide or was he exercising his power in the public interest?
- Whether Ram Manohar Lohia had the right to file the plea against the detention under Article 359 (1)?
Justice A.K. Sarker held that and by way of illustration of this proposition, a case where a person was detained in violation of the mandatory provision of the Defence of India Act was mentioned. In the instant case, the Petitioner contends that the Acts or Rules do not justify the order of detention and hence is against its provision. The Petitioner is entitled to a state must be held to be ill-founded be heard, and the present contention of the respondent State must be held to be ill-founded and must fail.
Considering the merits of Dr Lohia’s conflict, the order confining him has not been made under the Defence of India Rules. Here delay to see that in the event that it was not all that made, there is no other defence for this confinement, none is indeed advanced. He would then be qualified for his discharge.
The District Magistrate may have made the arrange of detainment with regard to Dr Lohia on the off chance that he was fulfilled that he be confined with a sea to anticipate him from acting in any way biased to open security or upkeep of open arrange. Such fulfilment is subjective and not objective. The Court cannot examine approximately the ampleness of the reasons which drove to this fulfilment. The Court can, in any case, explore whether he worked out the control beneath Suez 30 truly and bona fide or not, i.e. whether he requested detainment on being fulfilled as required by 30. A detainee can address the legitimacy of the detainment arrange substantial on its confront on different grounds counting that of bona fide. The onus will be on him to demonstrate bona fides. He can address the legitimacy of the detainment arrange on the same ground when, on its confront, it shows up to be invalid. In such a case the onus will be on the confining specialist to set up that it was made bona fide.
He proposed to act to keep up peace, and they can’t as of now be scrutinized unmistakably in any case of whether there’s a pledge the other way. We have considered significantly over this case. The action of the Region Officer was completely his possess. He was, no vulnerability, standing up to a peace issue. However, he seems to oversee such an issue through the customary convention that must be followed to and not by the strategies for the Security of India Act and the Rules. His strengths were obliged to make a move to keep up open ask. He was incapable of running the legal issues in his Locale by taking arrange of activity to the course of action for detainment beneath the Resistance of India Act. The detainment must, subsequently, be pronounced to be outside the Protection of India Act, 1962 and the Guidelines made thereunder. Dr Lohia is qualified to be discharged.
Various Preventive Detention Acts enacted by the Government.
After an Independence first detention law was passed in 1950. This Act expired in 1969. In 1971, the Maintenance of Internal Security Act was passed. The law, called the maintenance of internal security act, was passed by the Indira Gandhi government in 1971. Thereafter the Government was entitled to unlimited rights. No search of the warrant could be found without searching the police or government agencies for any length of time. Phone tapping for the Government had already made us legal. During the period from 1975 to 1977 many changes have been made
After this, in 1974, Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) was enacted.
When the Khalistani terrorism had taken root in Punjab, the Terrorist and Disruptive Activities (Prevention) Act called TADA was passed in 1985. The TADA was the first law that was specifically enforced to resist terrorist activities. This action was brought against the separatist movement of Khalistan in Punjab. Initially, it was to be continued only in Punjab and its border states for two years after being implemented. Subsequently, the period was extended to 1987 and 1993 to make the tada even more rigorous and comprehensive. The law increased the powers of the government to fight terrorism by making provisions for specially designated courts for cases of suspected criminals in tada cases.
Prevention of Terrorist Activities Act is also known as POTA was enacted in 2002. The Act, called the prevention of terrorism act, was passed following the attack on parliament in 2002. Like tada, it was an anti-terrorism law. Like the TADA, Government security agencies had unlimited rights. The Act was set aside in 2004. Former Minister of Uttar Pradesh, Raghuraj Pratap Singh, the senior leader of Tamil Naidu Vico is a prominent leader arrested in this Act.
National Security Act
National security Act was sanctioned in 1980. Preventive Detention involves the detainment of a person in order to keep him/her from committing future crimes and/or from escaping future prosecution. NSA engages the middle or to State Government to confine an individual to avoid him from acting in any way biased to national security. The Government can keep an individual to avoid him from disturbing open arrange or for the upkeep of supplies and administrations fundamental to the community.
Article 22 – No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest shall be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Article 22(3) – This article stated that If a person is arrested or detained under a law providing for preventing detention, then the protection against the arrest and detention under article 22(1) and 22(2) shall not be available.
Objective of Preventive Detention
The question of preventive detainment isn’t to rebuff but to anticipate the detenu from doing something which is biased to the State. The fulfilment of the concerned authority may be a The specialists must grant the opportunity to the prisoner for making his representation against the detainment. There are many grounds of Detention.It comes within any of the grounds like-
- Security of the State
- Public order
- Foreign Affairs
- Service essential to the community.
- Safeguards Provided In Constitution:
To anticipate rackless utilize of Preventive Detainment, certain protection are given within the structure. No individual can be taken to preventive care for more than 3 months, in the case in any circumstance the detainment period is expanded past 3 months as it were after the endorsement of the Counseling Board. The prisoner is entitled to know the grounds of his detainment. State have specialist, may deny providing data around the ground of detainment within the open interest.
India turned out to be free in 1947, and the Constitution came into force in 1950. It is uncommon that the framers of the Indian Constitution, who endured mostly on account of the preventive Detainment Laws, didn’t spare a moment to give Sacred sacredness to the Preventive Confinement Laws and that too in the Crucial Rights section of the Constitution. It was not the first time that the Detention Act was misused like this. Even before and after this case, various cases in which the logo was given without reason. In the TADA act, people had been arrested in jail. Only 4% people proved criminals in it, but the stringent of this law, as a result of provisions, many people continued to rot in jails for many years.
After the attack on parliament in 2001, POTA was framed by the Government. It is also a renovated form of TADA. That was why power in Rajya Sabha could not get it passed. There were a total of 211 MPS present in the Rajya Sabha at that time. In support of this only 98 members have voted for him 113 voted against it. The ruling parties then decided to convene a joint session and get it passed.
These detentions or restraining law is a great threat to democracy. We have already seen an example of this. During the National emergency of 1975, all the opposition leaders were jailed under the MISA law. This is now being repeated in Jammu and Kashmir again. The use of such law is set to be like an oppressive law, which is the erosion of democracy. There must be consideration of the option of these laws, especially in India. In those countries where an ideal democracy is, there is no risk of such a danger.