LexSAMBHU NATH SARKAR versus THE STATE OF WEST BENGAL & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
B
c
l
SAMBHU NATH SARKAR
v.
THE STAIB OF WEST BENGAL & ORS.
April 19, 1973
[J. M. SHELAT, ACTING C.J., K. S. HEGDE, A. N. RAY, P. JAc:f6.NMOHAN
REDDY, H.R. KHANNA, A. K. MUKHERJEA AND
Y. V. CHANDRACHUD, JJ.]
The Mllillfe11ance of Internal Security Act, (26 of 1971), s. 17A-lf violates
Art. 14 and Art. 22(7) of the Constitution.
Constitution of India, 1950, Art. 22(4)(a) and (b) of Art. 22(1)-Scope of.
Practice-Scope of Supreme Court's Power to review its earlier decisions.
The ~1aintenance of Internal Security Act, 1971, was passed on July 2,
1971. On Del.:ember 3, 1971, a Proclamation of Emergency was issul!d and
on the next d~y. the Defence of India Act. 1971, was enacted. Section 6 of
the Defence of India Act introduced various amendments and a new section,
s. 17,\, in the Maintenance of Internal Security Act.
Section 17 A effectuated
3 niain changqs: (a) It overrides, by its non .. abstante clause, the other provf ..
sions of the Act; (b) a person mayi be detained in a class or classes of cases
or under the circumstances set out in s. 17A(l) (a) and (b}-namely on the
D
ground of prejudicial acts in relation to (i) defence of India, relations with
foreign powers and security of India, and (ii) security of the State and maintenance
of pu51ic order without obtaining the opinion of an Advisory Board for a period
longer than 3 months, but not exceeding two years from the date of detention; and
( c) the maximum period of detention of such a person can be 3 years or until
the expiry of the Defence of India Act, whichever is later. These changes were
brought about by Parliament exetcisjng the power contained in Art. 22(4)(b),
(7)(a) and (b), in respect of all the heads under Entries 9 and 3 of Lists I and
III of the VII Schedule to the ConstitUtion, except the one: with respect to main·
E
tenance of essential supplies and services.
...
~ '·
•
The petitioner was arrested on January 29, 1972, under s. 3(1) and (2) of
the Maintenance of Internal Security Act, and on April 15, 1972, the Str.te Gov·
ernment, after perusing the report of the \dvisqry- Board, confirmed the C'rder
of detention under s. 12(1) and directed the detention to continue for 3 years
_ _
from the date of detention.
-- ----
In a petition under Art. 32;- -,_
~
F
HELD : The petitioner should be released <ram his detention forthwith.
(lj(a) There is no question of discrimination -ori..,.vioJation of Art. 14 as
a resu t of any such discrimination.
By the use pf the ~Words
1may .be detained'
in the first part of s. 17A, an unguided discretion h"ns n_Qt been conferred on the
,E-e_taining __ authority whether to. take action under the -m.-Ore drastic provisions of
s:-17A or under s. 3(1) read with ss. 10 to 13. [!OE] '· '·
_ :- _ ..::..;- --
(i) The opening words in-- s-.-_l_Q '!!ave as otlierwi~e expressly provided in this
----1{-.>_ _Act', mean th.at .s. 10 would apply only ..,:_to cas~s not-~xpressly provided for in
the Act, that 1s 11 w1>uld not apply to cases falhng unde't ss, 17 and·l7A. (!OBJ
(ii) The words 'may be detained' in s, 17A(l) go 'l'.ith'· the words which
follow them, namely, '\.vithout obtaining the opinion of_ the· Advisory Board' and
'in any of the following classes of cases or under any-.of the following circums·
tances .... ". and hence, are words enabling the authOtity -to detain in certain
cases and are net words giving a choice to the authority to apply s. 17A or not.
[IOC-D]
H
(b) Even if the operation of ss. 17A and 10 side by side were to result in
any difference in the working of the Act, that difference would not amount to
any discrimination, by reason of the provision in s. 17A(2) to the effect that in
the case of. a pe.rson to whom s. _17 A ( 1 '
a~nlies, s. 10 shall be read subject
to the modifications set out therem. [100:-EJ
2-L944Sup.Cl/74
2
SUPREMB COURT REPORTS
[ 1974] 1 s.c.1
(2) Article 22(4)(a) lays down a rule to which Art. 22(4)(b) read with
A
Art. 22(7)(a) is an exception. In that view, cl. (7)(a) mnst be construed u a
restriction on Parliament's power of making preventive detention laws in tho
sense that it can depart from the rule laid down in cl. (4)(a) and' dispense with
reference of cases to an Advisory Board only by a law which ,Prescribes both the
circumstances under wh_ich and the class or classes of cases in which, a person
may be detained for a period longer than 3 months without obtaining the opinion
of an Advisory Board iExcerpt shown. Read the full judgment & AI analysis in Lexace.