FAGU SHAW, ETC., E.TC. versus THE STATE OF WEST BENGAL

Citation: [1974] 2 S.C.R. 832 · Decided: 20-12-1973 · Supreme Court of India · Bench: A.N. RAY · Disposal: Disposed off
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Judgment (excerpt)

832 
F,.O.GU SHAW, ETC., E.TC. 
v: 
THE STATE OF WEST BENGAL 
December 20, 1973 
[A. N. RAY, C.J., K. K. M;ATHEW, Y. V. CHANDRACHlJD, 
A 
A. ALAGIR!SWAMI AND P. N. BHAGWATI, JJ.J 
B 
Constitution of India, 1950- Art. 22(4)(a)(b); (1)(a) ond (b)-Wheth<r 
Parliament was bound to prescribe the maximum period of detention. 
Maintenance of Internal Security Act, 1971-S. 13-Whether period fixed in 
r. 13 is maximum period, 
· 
Art. 22(4)(a) of_tbe Constitution says that no law providing for preventive 
detention shall authorise the detention of a person for a period longer than three 
months unless an Advisory Board.bas reported before the expiry of three months 
that there is in its opinion sufficient cause for such detention. lbe proviso to the 
Article provides that nothin& in sub-clause (a) shall authorise the detention of 
any penon "beyond the maximum period premibed by any law made by Parlia-
ment under sub-cl. (bl of cl. (7)" of Art. 22. 
By reason of Art. 22(4)(b) a per-
son can be detained for a lonaer ~riod than three months without the neceuity 
of consultina an Advisory Board if "such person ii detained in accordance ·With 
the p_rovisions of any law made by Parliament under sub-els. (a) and (b) of 
cl. (7)" of Art, 22. And Art. 22(7) says: 
"(7) Parliament may by law prescribe:-
(a) the circumstances under which, and the class or classes of cases in which, 
a person may be detained for a period longer than three months under any . law 
providing for preventive detention without obtaining the opinion of an Advisory 
Board in accordance with the Provisions of sub-clause (a) of clause (4):· 
(b) the maximum period for which any person may in any class or classes of 
-cases be detained under any law pro.viding for preventive detention; and 
(c) the procedure to be followed by an Advisory Board in an inquiry undei-
sub.clause (a) of clause (4)." 
Section 13 of the Maintenance of Internal Security Act. 1971 as amended 'by 
s. 6(d) of the Defence of India Act, 1971 enacts that the "maximum period for 
which any person may be detained in pursuance of any detention order which has 
been confirmed under s. 12 shall be twelve months from the date of detention or 
until the expiry of the Defence of India Act, 1971, whichever is later." Punuant 
to an order of detention !Ul'Sed by the Government of West Benaal the petitionen 
were detained under s. 13 of the Maintenance of Intemal Security Act, 1971. In a 
petition under Art. 32 of the Constitution It was contended (I) that the Parlia· 
· ment was bound to prescribe the maximum period of detention under Art. 22(7) 
(bl of the Constitution in order that the provision Of Art. 22(4)(al ml&ht opo-
nte and as 1. 13 of the Act, as amended, did not proscribe ·the maximum period 
of detention, the confirmation ot detention orders in tel'D11 of 1ec. 13 of the Act 
was bad; (ii) that since tho dotermlnotlon Of the 1>0rlod of detention, namely. 
the expiry of the Defence of India Act, 1971 is dependina upon the requirement 
of the !)roclamation of emera:ency, the period fixed in Sec. 13 is not "the maxi-
mum period" as visualised by Art. 22(7)(b); ilnd (iii) that the Parliament ha1 
abdicated its power and duty to fix the maximum period to the executive as the 
determination of the operation of the proclamation of emeraency is a 
matter 
within the discretion of the President and he is. therefore, the authority to deter-
·mine the retirement age of the Defence of India Act. 
HELD: (Per Ray C. J., Mathew and Chandrachud, JJ :) (I) Thero is no 
··provision in the Constitution which either expreaslv or by necessary .implication. 
·compeJS. Parliament to prescribe the maximum period of detention 
und~r Art. 
22(7)(b). The proviso does not proprlo vlgort compel the Parliament ll>·&K·Cho 
c 
D 
E 
G 
H 
F,AGU SHAW v. WEST BENGAL 
833 
A 
n1aximum period. 
Nor does Art. 22(7) (b). On the other hand it expressly 
says otherwise. [841 BJ 
B 
c 
D 
E 
F 
G 
H 
The language of Art. 22(4) (b) is in marked contrast with th.i.t of Art. 22(4)a 
(a) read with the proviso. Art. ::!2(4)(b) makes it obligatory upon Parliament, 
if it wants to pass a law for detaining a person for a period of more than three 
moo.tbs, without making a provision in that Jaw for obtaining the opinion of an 
Advisory Board. (841 DE] 
Under entry 3.of List Ill of the Seventh Schedule. both Parliameil-t and State 
Legislatures have plenary power t.o pass la\\'s for preventive detention as ·respects 
the subjects mentioned t
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