LexBHUT NATH METE versus THE STATE OF WEST BENGAL
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A B c D E f G H BHUT NATH METE v. THE ST ATE OF WEST BENGAL February 8, 1974. [V. R. KRISHNAlYER AND R. S. S•RKARIA, JJ.] Mai:11te~li!'1ce of 1'1ternal Security Act! 19?1-s. 3-Continuance of c111erze11cy no.t a 1usl1C1able issue-Order of dettntion rf bad because crhnlnal prosmllions fculed-lf Gove~nment should pass a speak111g ordtr-Con1m,,nication of facts cornerstone of right of representation-Poverty and illiteracy if relevant to s. 3. The petitioner was detained under s.3 of the Maintenance of Internal Security Act, 1_971 on the ground that he broke open wagons and looted wheat and tea. The reoort which was sent by the Police to the District Magistrate was forwarded to the Government and the Board. It contained information that the petitioner was -poor and illiterate, had associates in notorious wagon·brcakers and anti-!OC'ial clements, had developed the spirit of lawlessness and aptitude for anti~social acti- vities and that many of the reported and unreported cases of recent and criminal activities existed to his credit besides the instances communicated to the detcnu. It was contended that ( 1) there was np real emergency and yet the procla- mation of emergency remained unrctracted with consequential peril to funda- mental rights; (2) that sections 3(3) and 10 of the Maintenance of Internal Se~urity Act violated art. 22(5) of the Constitution; (3) that the order was n1ale fide because it was made after and on account of the discharge of the petitioner in the relative criminal cases; (4) that a seeaking order should be passed by the government or by the Advisory Board while apprcving or advising continuance of detention and (5) that some irrelevant and uncommunicated ch:irges had influenced the authority, vitiating the Q,!'der of detention. Allowing the petition, HELD : ( 1) Academic exercise in constitutional law arc not for courts but jurists and it is not possible to hold that "the continuance of emcrgcnc}' was void. It is outside the orbit of judicial control and wandering into the para·l)Olitical sector. The argument is political, not a justiciable issue and the appeal should b~ to the polls and not to the courts. [321 H] Rex v. Govtr11or of Wormwood Scrubbs. Prison, [1920] 2 K.B. 305, Tlzt kill!! v. Halliday, [1917) A.C. 260, 270 and Ri11gka11 v. Goi•er11mtnt of Malaysia, [1970] A.C. 379: 390; 391; referred to. (2) There is no inconsistency with or erosion of the opportunity of making a representation against the order. The soul of art. 22 is the fair c~ance to be· heard on all particulars relied on to condemn the detenu to preventive con- finement. But sec. 3(3) does not and cannot trap.scend this trammel and never states that particulars conveyed to govern~ent and even~ally t? the Board may be behind the back of the · detenu. Reading the provisions liberally and as owing allegiance to Art. 22(5), it is right to say that all particulars transmitted under s.3(3) beyond the groun~ of detentioQ must in no way detract from the effectiveness of the ·deter.n's right of representation about them. The guarantee of Art. 22(5) colours the con:;truction of s. 3. [324 ~-C] ( 3) It is not correct to saY th"at the order of detention was bad because the criminal prosecutions have failed. It is well-settled that even U!15uccessful judicial trial or proceeding would not operate as a bar to a detention order or render it niafa .fide. (324 E-G] Sub.-ati v. State of Wev Bengal, [19731 3 S.C.C. 2SO, M. S. K!ian v. C. C. l'.ozr. A.I.R. 1972 S.C. !670 and Ramesliwar Lnl v. State of B11tar,. [1968] 2 S.C.R. SOS;511, followed. 316 SUPREME COURT REPORTS \ 1974] 3 S.C.R. ( 4) The~ is no substance in the argument that a speaking order should be passed by government or by the Advisory Board while approving or advising con_tinuance of detention. alt~ough a brief exprCS!!ion of the principal reasons is desirable. The commurucatlon of grounds, the nght to make representation and the consideration thereof by the Advisory Board made up of men with judicial experie~~· .t~e subject matter being the deprivation of freedom, clearly implies a qua51~1udic1al approach. The bare bones of natural ~Usticc in this context 11eed not b~ clotht:d with the ample flesh of detai1ed hearing and elaborate reasoning. A speaking order, like a regular judicial performance, is ni:ither necessary nor feasible. A harmonious reconciliation between the claims of security. of the n
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