- (1.) THIS Rule relates to an order dated the 22nd of june, 1973 passed by the District Magistrate, Darjeeling in exercise of the powers conferred upon him under subsection (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 with a view to preventing the detenue from acting in a manner prejudicial to the maintenance of public order. The grounds served upon the detenu were two but for reasons which will appear later on, it is not necessary to state them.
(2.) MR. Bagchi, the learned advocate appearing in support of the Rule challenged the validity of section 6 subsection 6 (d) of the Defence of India act. The constitutional issue raised by him may be viewed from different aspects. I shall mainly confine myself to a consideration of the arguments made and discussed at the Bar. My learned brother has chosen to discuss some other aspects in a separate judgment. The said section 6 (6d) of the defence of India Act amends the provision of Section 13 of the Maintenance of Internal Security Act which earlier provided that the maximum period of detention should be twelve months. The amendment substitutes the words "or until the expiry of the defence of India Act, 1971 whichever is later" after the word "from the date of detention". This amendment thus extends the period of detention beyond 12 months to a period "until the expiry of the Defence of India Act, 1971". Under section 3 of the Maintenance of Internal Security Act the power to make orders detaining certain persons may be made upon satisfaction regarding acts which are prejudicial (i) to the Defence of India, relation of india with foreign powers or the security of India ; (ii ). Security of the state or the maintenance of public order ; (iii ). Maintenance of Supplies and services essential to the community.
(3.) MR. Bagchi contended that in so far as the power conferred under Section 3 of the Maintenance of Internal security Act relates to prejudicial activities in relation to "the maintenance of public order", the same cannot be affected by amending section 6 (6d) of the Defence of India Act. Mr. Bagchi's contention seems to be that section 6 (6d) of the Defence of India Act, in so far as it covers detention on grounds related to public order, is not connected with either the security of India or the Defence of India. Therefore, it is beyond the legislative competence of the Parliament. Section 6 sub-section 6 (d) of the Defence of India Act, in so far as it purports to cover acts dealing with public order, must according to Mr. Bagchi, be struck down as being ultra vires. According to him, Parliament could not, through the Defence of India Act, enlarge the period of detention so far as the same related to public order. According to him the scope and ambit of the Defence of India act will govern the scope and ambit of the amendments effected by its provisions including 6 (6d ). He pointed out that the preamble of the Defence of india Act, 1971 (Act 42 of 1971) stated that this act is to provide for special measure to ensure public safety and interest, the Defence of India and civil defence. Moreover, it begins by saying that "whereas the President has declared by proclamation. . . . . . that a grave emergency exists whereby the security of India is threatened by external aggression; and whereas it is necessary to provide for special measures to ensure public safety and interest. . . . . . be it, therefore, enacted by Parliament. . . . " mr. Bagchi argued that the purpose of the Defence of India Act was limited in scope. The preamble provides a key to the understanding of the entire act and is intended to solve all ambiguities in the provisions when they are open to doubt. In this connection he referred to Maxwell Interpretation of Statutes, 11th edition, page 43 and some cases referred to therein. He argued that the expression "until the expiry of the Defence of India Act 1971" is in general terms and, therefore, applies to all cases including public order. He referred to Article 245 and 246 of the constitution and entry 1, list 1 in the 7th schedule of the Constitution, Entry 1 schedule 1 relates to "defence of india and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation". Mr. Bagchi's contention was that entry 1, list 1, was limited in point of time and purpose. As the competence of the parliament was subject to the Constitution the provisions made in Section 6 (6d) inasmuch as it relates to public order travels beyond the scope of the subject matter in the preamble and also the ambit of entry 1, list 1. It is, therefore, beyond the power of Parliament. He contended that public order has no bearing on Defence of India but was limited to war and demobilisation. Mr. Bagchi contended that even if at the time of enactment of Defence of India Act the provisions of Section 6 (6d) may have been said to have same relevance to public order, after the disappearance of conditions of war and mobilisation the statute has out grown its purpose and was no longer good. He also cited the cases of Jones v. Farrell, 1940 (3) A. E. R. 608 and rex v. Haliday, 1917 A. C. 260 116 LT 417 for construing the provisions reasonably and imposing limitation on them as regards time and purpose. When there was a danger to liberty conferment of arbitrary powers in the executive should be viewed with extreme strictness.;