STATE OF WEST BENGAL versus ASHOK DEY & ORS. ETC. ETC.

Citation: [1972] 2 S.C.R. 434 · Decided: 19-11-1971 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

Judgment (excerpt)

STATE OF WEST BENGAL 
v. 
ASHOK DEY &: ORS. ETC. ETC. 
November 19, 1971 
[S. M. Snoo, C.J., J.M. SHELAT, I. D. DUA 
AND G. K. MITTER, JJ.] 
Constillltion of India, Arts. 22(4) and 22(1)-Power of State Legisla-
ture to make law providing for preveittive detention for more than three 
months under Art. 22(4) is concurrent with that of Parliament undei· 
Art, 22(1)-West Bengal (Prevention of Unlawful Activities) 'Act, 1970 
(Praidtn/'s Act 19 of 1970), ss. 10 to 13-Sectio;is art not violative of 
Art. 22(7) and are valid-Article 22(7) is p•rmissive-Prsidtnt's Act, 19 
of 1970 Is not violatfr• of Art. 19(1) (d) of Constitution'-S. 3(2)(c) of 
A ct, constructiQll of. 
The resPondents were detained under the West Bengal (Prevention of 
Vioient Activities) Act, 1970. 
In writ petitions before the High Court 
they cha!Jeneed the constitutional validity of the Act on the following 
grounds: (I) that it was not a law made by Parliament as contemplated b1· 
A 
B 
c 
Art. 22(7) of the Constitution with the result that the extension of the 
D 
Jct...,tion for a period longer than three 
months was unconstitutional. 
f 
Sections I 0 to 13 of the Act were described as violative of Art. 22( 4) and 
<7) of the Constitution; (2) that the restrictions bot!J in respect of sub-
stantiyc law and in respect of procedure imposed by the Act on detenm' 
Ji&ht cuaranteed Art. 19( I )(a) were unreasonable and, 
therefore, 
the 
,\ct wu unconstitutiQ11al; and (3) that the Act was violative of Art. 14 
ot the Constitution in_ as much as it gave arbitrary, 
unguided and un-
raoalised Power to the State Executive without prescribing any guideline• 
E 
\ 
tnr iii exercise. 
The High Court held that the Acl was not a law ma<lo 
· 
hv Parliament in terms of Art. 22(7) of the Constitution. It fyrther hehl 
th1t the provisions contained in ss. 11 and 13 of the Act relating to the 
procedure before the Advisory Board in respect of Lho person detained for 
a loneer period than three months were ultra vire1 Art. 22(7) of the Con-
stitution because under the said Article, Parliament aione has been invested 
with jurisdiction to legislate on these m?.tters. On the question of appli-
cability of Art. ,19(1) the High Court came to the conclusion that it wu 
F 
not applicable to the impugned Act. The challenge on the basis of Art. 14 
iif the Constitution was also repelled a8 the classification contemplated by 
the Act could by no means be considered unreasonable. 
Appeal to this 
Court was filed by the State. 
HELD : 
(I) Article 22(7)(b) and ( c) are not mandatory. Clause 
I 7 t of the Article on its plain reading merely authorises or e11ables 
the 
Parliament to make a law prescribing (i) the circumstances under which 
a pcnon may be detained for a period longer than three months (ii) the 
1nuimum period for which a person rnav in anv class or classes of tasei 
:,, detained under the Jaw providing for preventive detention and (iii) the 
procedure to be followed by the Advisory Board m an inquiry under cl. 
( 4) (a) of this Article. 
The respondents' contention that 'may' in the 
openini part of this Article must be read .u "shall" in respect of sulH:ls. 
liJJ and (cl though it retains its normal permissi,-e character in so far as 
cl. (a) is con<;erned, in the absence of special compelling reasons can be 
supported neither on principle nor bv precedent. On the other hand this 
Court in Klishnan's cast as well as in Gopalan's case held sub-cl. (b) of 
cl. (7) to be permissive. [439 H-440 BJ 
G 
H 
B 
c 
D 
E 
(I 
G 
H 
WEST BENGAL V • • ASHOK DEY 
435 
S. KrishJ:1an v. State of Madras, 
[1951] S.C.R. 
621, 639 
and 
(,opa/im v. State of Madras, [1950) S.C.R .. 88, relied on. 
The power of the State Legislature under Art. 246 with respect to pre-
ventive detention enumerated in Entry 3 of List Ill is co-extensive with 
lhai. Or .Parliament with respect to such preventive detention and it muit 
1~eccssaritv extend to all incidental matters connected with preventive deten· 
hon as contemplated bv this entry, subject only lo the condition that it 
does not come into conflict with a law made by Parliament with respect 
lo the same 1natter. 
There is no provision of the Constitution nor of 
a_ny other law which would justify limitation on tho power of the State 
Lc21slaturc to make a valid law provicling for detention under Ari. 22(4) 
for a period beyond three months on the ground of absence of law made 
bv Parliament permittin2 detention for such period." Hai:! 

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