SEN, J. - (1.) THESE are 381 Rules issued in respect of 381 persons 370 of whom are under detention by orders passed under the Bengal Criminal Law Amendment Act, 1930, as amended by the Criminal Law Amendment (Amending Ordinance, 1949) and two of whom, namely, Purna Chandra Ghose and Dulal Bose, are under detention by orders passed under the West Bengal Security Ordinance, 1949. Of the persons who are subject to these rules, eight have been discharged and one has escaped from custody. So far as these persons are concerned, the rules have become infructuous and no further orders on these rules are necessary.
(2.) MOST of these rules were issued before the Constitution of India came into force and they were under Section 491, Criminal Procedure Code Thereafter the Constitution Act came into force by which the High Courts were given powers to issue, inter alia, writs in the nature of habeas corpus by Article 226(1) and all the rules issued by this Court were treated in the alternative as being rules nisi for the issue of writs of habeas corpus. The learned Advocate -General accepted this alternative and waived any claim to fresh notice.
(3.) WE shall deal first with the question of the legality of the detention of the persons who have been detained by orders passed under the Bengal Criminal Law Amendment Act, 1930. The first point for consideration is whether the aforesaid Act is a valid law or not. In the argument urged on behalf of the detenus it was contended, inter alia, that this Act is not an Act for preventive detention. With that argument we shall deal later. We shall assume for the present that the Act provides for preventive detention and decide whether the Act is valid having regard to its provisions and the provisions of the Constitution Act. Before going into details we would like to emphasise the powers given to the High Court by the Constitution Act as regards deciding whether a statute is valid or void. In England Parliament is supreme and it can pass any law, however unreasonable it may seem, and to whatever extent it may curtail the liberty of the subject. Once the law is passed by Parliament the Courts are helpless. They must give effect to the law according to the recognised canons of interpretation of statutes. There is no power in the Courts to declare the law to be void or invalid. In this connection it would not be out of place to refer to certain observations made by Lord Wright in the well -known case of Liversidge v. Sir John Anderson, 1942 AC 206 at p. 260 : (1941 -3 All ER 338). "Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty. If an Act of Parliament, or a statutory regulation, like Reg. 18B, which has admittedly the force of a statute, because there is no suggestion that it is ultra vires or outside the Emergency Powers (Defence) Act, under which it was made, is alleged to limit or curtail the liberty of the subject or vest in the executive extraordinary powers of detaining a subject, the only question is what is the precise extent of the powers given. The answer to that question is only to be found by scrutinising the language of the enactment in the light of the circumstances and the general policy and object of the measure. I have ventured on these elementary and obvious observations because it seems to have been suggested on behalf of the appellant that this House was being asked to countenance arbitrary, despotic or tyrannous conduct. But in the constitution of this country there are no guaranteed or absolute rights." The position in the Republic of India is entirely different. Here, we have a written constitution in which certain fundamental rights are guaranteed to its citizens. These are mentioned in part in, Constitution Act. If Parliament or any State Legislature makes any law taking away these fundamental rights except in the manner and to the extent provided in Part III, then that law is void to the extent of its inconsistency with the provisions of Part III (vide Article 13(1)). Thus Parliament and the State Legislatures are not supreme to the extent that Parliament in England is supreme. The Legislatures in this country have only those powers of legislation which are bestowed upon them by the Constitution Act. If they pass an Act in excess of those powers, then that Act becomes void to that extent. The rest question which arises is this; who is to decide the question whether a piece of legislation is void or not? Under our Constitution the Courts i.e., the Judiciary are to decide this and nobody else. We thus see that the powers of the Judiciary in our country is in this respect far greater than the powers of the Judiciary of Great Britain. Many observations regarding the effect and interpretation of laws passed by the Parliament of Great Britain are coloured by the fact that Parliament there is supreme and they are not wholly applicable in this country. Here the power of the Judiciary is supreme in this respect. We realise that Parliament may amend the Constitution Act but that can only be done if the provisions of Article 368 of Part XX, Constitution Act are complied with. However, until the Act is amended the powers of the Legislatures and of the Judiciary are as stated above. The people of India have given us the power of interpreting the Constitution of India and of deciding whether any piece of legislation is or is not consistent with the provisions laid down in the Constitution of India.;