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G. M. Shah v. State of Jammu & Kashmir

Supreme Court of India · 30 October 1979 · [1980] 1 S.C.R. 1104

Court
Supreme Court of India
Decided
30 October 1979
Reported as
[1980] 1 S.C.R. 1104
Result
Allowed
Bench
Venkataramiah, E.S. (J)
Length
8 pages
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PETITIONER:
G. M. SHAH
Vs.
RESPONDENT:
STATE OF JAMMU & KASHMIR
DATE OF JUDGMENT30/10/1979
BENCH:
VENKATARAMIAH, E.S. (J)
TULZAPURKAR, V.D.
CITATION:
1980 AIR 494 1980 SCR (1)1104
1980 SCC (1) 132

ACT

Jammu and Kashmir Public Safety Act, 1978 Sections 8(2) and 8(3)-Scope of-"Law and Order," "Public Order," "Security of the State"- Meaning of.

HEADNOTE

The petitioner’s son (the detenu) was detained under section 8(2) of the Jammu and Kashmir Public Safety Act, 1978 by an order of the District Magistrate, Anantnag, Sections 8(1)(a)(1) and 8(2)2 of the Act state that the Government or the District Magistrate may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of the public order, make an order directing that such person be detained.

The detenu was informed that the order of detention had been passed with a view to preventing him from acting in any manner prejudicial to "the maintenance of public order". The grounds of detention amongst others stated that the detenu had (i) indulged in subversive activities (ii) organised the burning of religious places to create chaos in the State (iii) disturbed the public order (iv) tried to elicit public opinion in favour of a person sentenced to death and that his remaining at large was prejudicial to the maintenance of public order and also the "security of the State".

The petitioner challenged the grounds of detention as vague.

Allowing the petition under Article 32 of the Constitution and directing the release of the detenu forthwith. ^

HELD: An attempt on the part of any citizen to elicit public opinion in favour of a person who has been sentenced to death and to save him from the gallows cannot be considered as acting in any manner prejudicial to the security of the State because it cannot be considered as an attempt to overthrow or overawe the Government established by law in the State. The fact that the detenu had sent handbills and booklets to arouse the sentiments of the people against the proposed execution of Z. A. Bhutto cannot be considered as an act prejudicial to the security of the State because the State of Jammu and Kashmir had nothing to do with the proposed execution. The other grounds are also vague in so far as the question of security of the State is concerned. [1111 B-E]

A combined reading of the order of detention and the grounds furnished to the detenu shows that at the time when the order was made, the District Magistrate either had no material relevant to the security of the State on which he could act or even if he had information of those grounds, he did not propose to act on it. He, however, tried to support the order of detention by stating in the course of the grounds that by the detenu remaining at large, the security of the State was likely to be prejudiced. [1111 G-H] 1105

The expressions "law and order", "public order" and "security of the State" are distinct concepts though now always separate. Whereas every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the "security of the State." [1112 A-B]

Romesh Thapper v. The State of Madras, [1950] S.C.R. 594 at p. 600 applied.

An act may affect law and order but not public order just as an act may affect public order but not security of State. It is for this reason that the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order’ separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to an illegal one. [1113 C-D]

Dr. Ram Manohar Lohia v. State of Bihar & Others, [1966] 1 S.C.R. 709. Bhupal Chandra Ghosh v. Arif Ali & Others [1974] 2 S.C.R. 277 and Satya Brata Ghose v. Arif Ali

JUDGMENT

&

ORIGINAL JURISDICTION: Writ Petition No. 1125 of 1979

(Under Article 32 of the Constitution)

M. K. Ramamurthy and R. C. Pathak for the Petitioner.

K.K. Venugopal, Addl. Solicitor General, and Altaf Ahmed for the Respondent.

The Judgment of the Court was delivered by

VENKATARAMIAH, J-At the conclusion of the hearing of the above petition on October 24, 1979, we made the following order:-

"The detenu Shabir Ahmed Shah who has been

detained by the order dated the 23nd May, 1979 of the

District Magistrate, Anantnag is directed to be

released forthwith. Reasons would follow."

The reasons in support of the above order are given below:-

The above petition under Article 32 of the Constitution is filed by the petitioner requesting this Court to quash the order of detention bearing No. 299-304/ST dated May 23, 1979 passed by the District Magistrate, Anantnag in the State of Jammu & Kashmir under section 8(2) of the Jammu & Kashmir Public Safety Act, 1978 (Act No. VI of 1978) (hereinafter referred to as ’the Act’) directing the detention 1106 of his (petitioner’s) son, Shabir Ahmed Shah (hereinafter referred to as ’the detenu’). The relevant part of the order of detention reads:

"Whereas I, Omar Jan, District Magistrate,

Anantnag, am satisfied that with a view to preventing

Shri Shabir Ahmed Shah s/o Ghulam Mohammad Shah r/o

Kadipora, Anantnag, from acting in any manner

prejudicial to the maintenance of public order, it is

necessary so to do;

Now, therefore, in exercise of the powers

conferred by section 8 (2) of the Jammu and Kashmir

Public Safety Act, 1978 (Act No. VI of 1978), I, Omar

Jan, District Magistrate, Anantnag hereby direct that

the said Shri Shabir Ahmed Shah be detained in Central

Jail, Srinagar.

Sd/-

(Omar Jan)

District Magistrate,

Anantnag".

The detenu was informed in pursuance of section 13 of the Act that his detention had been ordered on the following grounds:-

"1. You originally belonged to Young Man’s LEAGUE

(Hamid group) which was an anti-national and pro-Pak

organization of youngmen. You alongwith your erstwhile

associates were responsible for creating subversion and

danger to the maintenance of public order by organizing

antinational demonstrations and protests.

2. Later in the year 1975 when the Peoples’ League

was formed with the avowed object of challenging the

accession of the State of India and also for furthering

the cause and interest of Pakistan in the State, you

joined the party as an active member. You are currently

the General Secretary of the Peoples’ League. You and

Your party have shown open sympathy and have tried to

elicit public opinion in favour of Mohammad Maqbool

Bhat, a die-hard pro-Pak subversive element who has

been sentenced to death on two occasions for murder,

espionage and sabotage and is currently awaiting

execution. Pamphlets and posters have been issued by

the Peoples’ League in support of Mohammad Maqbool

Bhat.

3. In January and February, 1970 you joined

subversive elements of Sopore area and organized the

burning of reli- 1107

gious places in order to create chaos in the State. The

conspiracy was, however, unearthed by Baramulla Police

in time before much damage was done. You were arrested

in Case FIR No. 38/79 u/s 436 RPC P/S Sopore registered

in this connection.

4. Much before the execution of Mr. Z. A. Bhutto

in Pakistan, you and your party sent hand-bills and

booklets to arouse the sentiments of the people against

the State Govt. You alongwith your party members moved

secretly to maintain contacts with disgruntled and

undesirable elements in the valley and to arouse their

base sentiments in this connection and context.

5. In the third week of March, 1979, when some

unemployed youth started hunger strike at Lal Chowk,

Anantnag, you lent support to the CPI ML and other

parties who were out to create disturbances and to

incite the youth to resort to violence and disorder.

6. On 29-3-1979 you alongwith your colleagues held

a meeting and decided to disturb public order in

Anantnag town in the context of pro-Bhutto sentiments

and demonstrations the next day.

7. Consequently on 30-3-1979 you alongwith your

associates moved stealthily to warn the shopkeepers to

close their shops. You also incited the people to put

road blocks and stop traffic. You and your associates

organized a strike in Anantnag College when it opened

on 30th. Later in the day you alongwith your associates

incited youths to resort to violence and create

disorder. Consequently a lot of violence including

murderous assault on the Police and the Magistracy took

place in Anantnag town in which many officials were

seriously injured. A case FIR No. 98/79 u/s

302/148/336/332/149/120-B RPC was registered. You went

underground and could not be arrested for quite some

time but you were arrested in the case later. You are

presently on bail in this case. On 7-4-1979 when

normalcy was being restored in Anantnag town and shops

were being opened, you alongwith your associates

appeared near Lal Chowk and threatened shop-keepers to

close shops. Their shouting and running had the effect

of creating tension in the 1108

town and many shops were closed. Police efforts to

arrest you could not succeed as you ran away in the by-

lanes and later went underground.

8. More recently you have been collaborating with

antinational, pro-Pak elements who come to hold secret

talks and links with you. You are a dangerous and

desparate character out to create chaos, disorder,

subversion and the like to achieve your ends. Your

remaining at large is prejudicial to the maintenance of

public order and also to the security of the State. I

am convinced that unless you are detained there is

every likelihood that you will continue to create

confusion in public minds and instigate people to

lawlessness and disturbance of public peace and

tranquility."

(The paragraphs are numbered by us for the purpose of convenience).

It may be noted that whereas the order of detention stated that it had been passed with a view to preventing the detenu "from acting in any manner prejudicial to the maintenance of public order", in the last paragraph of the grounds furnished to the detenu, it was stated that "your remaining at large is prejudicial to the maintenance of public order and also to the security of the State". The relevant part of section 8 of the Act under which the order of detention is passed reads:

"8. Detention of certain persons.-(1) The

Government may-

(a) if satisfied with respect to any person that

with a view to preventing him from acting in any manner

prejudicial to-

(i) the security of the State or the maintenance

of the public order, or

(ii) the maintenance of supplies and services

essential to the community; or.

(b) .... ... ... ... ... ... ... ..

it is necessary so to do, make an order directing that

such person be detained. 1109

(2) Any of the following officers namely:-

(i) Divisional Commissioners,

(ii) District Magistrates,

may, if satisfied as provided in sub-clauses (i) and

(ii) of clause (a) of sub-section (1), exercise the

powers conferred by the said sub-section.

(3) For the purpose of sub-section (1),-

(a) "acting in any manner prejudicial to the

security of the State" means making

preparations for using, or attempting to use,

or using or instigating, inciting, provoking

or otherwise abetting the use of force, to

overthrow or overawe the Government

established by law in the State;

(b) "acting in any manner prejudicial to the

maintenance of public order" means-

(i) promoting, propagating or attempting to

create, feelings of enmity or hatred or

disharmony on grounds of religion, race,

caste, community, or region;

(ii) making preparations for using, or attempting

to use, or using, or instigating, inciting,

provoking, otherwise abetting the use of

force where such preparation, using,

attempting, instigating, inciting, provoking

or abetting, disturbs or is likely to disturb

public order;

(iii) attempting to commit, or committing, or

instigating, inciting, provoking or otherwise

abetting the commission of, mischief within

the meaning of section 425 of the Ranbir

Penal Code where the commission of such

mischief disturbs, or is likely to disturb

public order;

(iv) attempting to commit, or committing, or

instigating, inciting, provoking or otherwise

abetting the commission of an offence

punishable with death or imprisonment for

life or imprisonment for a term extending to

seven years or more, where the commission of

such offence disturbs, or is likely to

disturb public order."

It is seen from section 8(1) (a) (i) and section 8(2) of the Act extracted above that the Government or the District Magistrate may, if satisfied with respect to any person that with a view to preventing him 1110 from acting in any manner prejudicial to the security of the State or the maintenance of the public order, make an order directing that such person be detained. The expression "acting in any manner prejudicial to the security of the State" is defined in clause (a) of subsection (3) of section 8 of the Act as making preparation for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use of force to overthrow or overawe the Government established by law in the State. Clause (b) of section 8(3) of the Act defines the expression "acting in any manner prejudicial to the maintenance of public order". The distinction between the two expressions lies in the fact that while in the case of the former, the object of making preparation or instigating or abetting the use of force etc. should be with a view to overthrow or overawe "the Government established by law in the State", in the case of the latter, the object of the acts mentioned therein should be disturbance of public order.

As already mentioned, while the order of detention states that it was being made with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order, in the grounds disclosed to him, it had been stated that the detenu’s remaining at large was prejudicial to the maintenance of public order and also to the security of the State. We shall now briefly refer to the nature of the grounds furnished to the detenu. First we shall deal with paragraphs (1), (3) and (5) to (7) of the grounds. In paragraph (1) of the grounds, it is stated that the detenu alongwith his erstwhile associates was responsible for creating subversion and danger to the maintenance of public order by organizing anti-national demonstrations and protests. In paragraph (3) of the grounds, it is stated that in January and February, 1979, the detenu had joined subversive elements of Sopore area and organized the burning of religious places in order to create chaos in the State. In paragraph (5) of the grounds, it is stated that in the third week of March, 1979, the detenu had lent support to the Communist Party of India (ML) and other parties who were out to create disturbances and to incite the youth to resort to violence and disorder when some unemployed youth started hunger strike at Lal Chowk, Anantnag. In paragraph (6) of the grounds, it is stated that on March 29, 1979, the detenu had alongwith his colleagues held a meeting and decided to disturb public order in Anantnag town. In paragraph (7) of the grounds, there is a reference to the detenu alongwith his associates inciting the youth to resort to violence and create disorder. It is thus clear that paragraphs (1), (3) and (5) to (7) of the grounds, there is no reference to any attempt made by the detenu to use force to overthrow or overawe the Government established by 1111 law in the State. Paragraphs (2), (4) and (8) of the grounds are also in no way different. In paragraph (2) of the grounds, although there is reference to the detenu joining Peoples’ League, which had been formed with an avowed object of challenging the accession of the State of Jammu & Kashmir to India and also for furthering the cause and interest of Pakistan in the State, the act attributed to the detenu is that he had tried to elicit public opinion in favour of Mohammad Maqbool Bhat who had been sentenced to death. An attempt on the part of any citizen to elicit public opinion in favour of a person who had been sentenced to death and to save him from the gallows cannot be considered as acting in any manner prejudicial to the security of the State because it cannot be considered as an attempt to overthrow or overawe the Government established by law in the State. Similarly the act attributed to the detenu in paragraph (4) of the grounds cannot be considered as an act prejudicial to the security of the State as what is alleged therein is that much before the execution of Mr. Z. A. Bhutto in Pakistan, the detenu had sent hand-bills and booklets to arouse the sentiments of the people. Although it is stated that the detenu had tried to arouse the sentiments of the people against the State Government, the alleged act on the part of the detenu even if it was true could not be considered to be prejudicial to the security of the State of Jammu & Kashmir because the State of Jammu & Kashmir had nothing to do with the proposed execution of Mr. Z. A. Bhutto. Ground No. 8 which lacks material particulars appears to be a general one. These grounds are also vague in so far as the question of security of the State is concerned.

It is thus clear that none of the grounds supplied to the detenu falls within the scope of clause (a) of section 8(3) (1) of the Act which defines the expression "acting in any manner prejudicial to the security of the State". It is further seen that even though it is stated in the grounds that the District Magistrate was of the view that the detenu remaining at large was prejudicial to the security of the State also, he did not make the order with a view to preventing him from acting in any manner prejudicial to the security of the State. A combined reading of the order of detention and the grounds furnished to the detenu shows that at the time when the order was made, the District Magistrate either had no material relevant to the security of the State on which he could act or even if he had information of those grounds, he did not propose to act on it. He, however, tried to support the order of detention by stating in the course of the grounds that by the detenu remaining at large the security of the State was likely to be prejudiced. 1112

The expressions "law and order", "public order" and "security of the State" are distinct concepts though not always separate. Whereas every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the "security of the State". This is borne out from the observations made by Patanjali Sastri, J. in the decision of this Court in Romesh Thappar v. The State of Madras (1) which are as follows:-

"As Stephen in his Criminal Law of England

observes: Unlawful assemblies, riots, insurrections,

rebellions, levying of war, are offences which run into

each other and are not capable of being marked off by

perfectly defined boundaries. All of them have in

common one feature, namely that the normal tranquillity

of a civilized society is in each of the cases

mentioned disturbed either by actual force or at least

by the show and threat of it." Though all these

offences thus involve disturbances of public

tranquillity and are in theory offences against public

order, the difference between them being only a

difference of degree, yet for the purpose of grading

the punishment to be inflicted in respect of them they

may be classified into different minor categories as

has been done by the Indian Penal Code. Similarly, the

Constitution, in formulating the varying criteria for

permissible legislation imposing restrictions on the

fundamental rights enumerated in article 19(1), has

placed in a distinct category those offences against

public order which aim at undermining the security of

the State or overthrowing it, and made their prevention

the sole justification for legislative abridgement of

freedom of speech and expression, that is to say,

nothing less than endangering the foundations of the

State or threatening its overthrow could justify

curtailment of the rights to freedom of speech and

expression, while the right of peaceable assembly "sub-

clause (b)" and (c) right of association "sub-clause

(c)" may be restricted under clauses (3) and (4) of

Article 19 in the interests of "public order," which in

those clauses includes the security of the State. The

differentiation is also noticeable in Entry 3 of List

III (Concurrent List) of the Seventh Schedule, which

refers to the "security of a State" and "maintenance of

public order" as distinct subjects of legislation. The

Constitution thus requires a line to be drawn in the

field of public order or tranquillity 1113

marking off, may be, roughly, the boundary between

those serious and aggravated forms of public disorder

which are calculated to endanger the security of the

State and the relatively minor breaches of the peace of

a purely local significance, treating for this purpose

differences in degree as if they were differences in

kind."

As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar - Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. ’Law and order’ represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors(3).

The order of detention is, therefore, liable to be quashed and the detenu is entitled to be set at liberty. The petition is accordingly allowed.

In view of the above conclusion, we have not gone into the other contention urged by Mr. M. K. Ramamurthi that many of the grounds furnished to the detenu being vague, the order of detention cannot be supported even on the ground that it had been passed with a view to preventing the detenu from acting against public order. N.K.A. Petition allowed. 1114

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