STATE OF PUNJAB

JAGO.EV .S.INGI-i TALWANDI.

December 16, 1983

. [Y.V. CHANDRACHUD, C.J., P.N. BHAGWATI, AMARllNDRA. NATH

SEN, D.P. MA.DON AND M.P .. THAKKAR, JJ.]

A Con'Stifution of Jndfa, ]950, Artic!e 22 (5)-Pr_eventive Detention-Duty OJ detaining Authority-Con1p(iance with strict terlns of the Constitution is a . 1nust-National Security Act (Act LXV of 1980) section 3.

B .Preventiv'e.Detentio~-, vational Securiiy Ac/ (Act LXV) of 19o-seCtion 3 read. w; th Article 22(5) of the Constitution of Jndia, 1950-Ful.' details of the :Prejudicial activi11:es (dated, tinte pnd place) mentioned in the grout'ds of detention,-'

but not in the supporting particulars-Whether non~1nention fr1 the ·, supporting particulars vitiate the entire pdoceedings" ? .

Preventive Detention-Evidence gathered need not be furnished to the Deten1,1. ..

Prl}Vt:ntive Detenton matter.J-Corllzter-afjidavits, by the detaining authority 01i receipi of notice of the writ, ilot bein'g /lirnished...:._Effect of non-Jurnishing-

Constitution of India, 1950 Article 22(5).

Practice & procedure-Pronouncing final order without reasoned j1idgment and reserving the .Janie in Preventive .Det"ention CaSes-Prac1ice deprecated Conrlilution Of India Ar_ticle 226, 136 read with Civil Procedure Cod~ sections 33,107 ' aizd. Criminal Procedure Code, Section 354, Dif!ernce' betwetn_High Court & Supreme Cour~ Proceffures, explained. ·

. The respondent challenged the order of his detention Passed y the District Magistrate, Ludhiana on October 3',1983 under section 3 (::i) read with section 3 (2) of .the Natio'nal Security Act,1980. through Criminal \Vrit Ptition '.No. 516 of 1983 .. :\ccor<ling 'to ihe Petitioner fespofldcnt. 'the' ground:; of detention served on. hin1 ori Oct. 6, 1983.showing hat he was detained On t:1c, basis of two sPeeches made by him on 8.7.1983 and 20.9.1983 as recorded by the Crime Investigation Depart.Jnent of the Punjab Police contained certa n particulars, which were. totally' absent from the supporting n1a:tcrial and ihcrCfore no. 'reasonable Person could have Possible Passed the 4etention order on the basis' of such material. The High Coui-t accepted the contention and Ola.de the rule

absolte. Hence the appeal by th, e State after obtainiilg special kave.

Allo\ving the appeal and rcmandin~ the n1attei to the Jfir, h Court of •• Punjab, the.Court

H H'E.LD : ! :J. -While passing orders of detaining. great care JU~ st be brought t b their task by the detaining authorities.

Prevellive d!tention is .a o ear .on . , •

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PUNJAB V. J.S. ; TALWANDI 51

necessary evil but essentialJy an evil. Therefore: deprivation oi Personal liberty, if'at all, has to be on the strict tenns of the Constitutiori. Nothing less. [61 BC]

1:2: In the instant.case, the detaining authority should not have adopted a somewhat casual and unimaginative approach to his task.' The original version contains almost every one of the material details. pertaining ta. the meeting, . which are mentioned in ground '.No.1. The detaining authOrit:Y needlessly

pplied his scissors excising the data which mentioned the date, place, the iime and the. occas.ion of the meeting. It is this IaCk of thoughtfllIIless on the part of the detaining authority which furnished tQ the respondent the semblance of an argument. f61 A-BJ

The contention of th; respondent that he could not fnak~ n effective representation in bhalf of ground No.1. because.of the inadequacy of data i~· the supportig particulars supplied to him i.s .incOrfect. The .. i'nadequacies from which the supplementary particulars furnished to the respondent along with ground No.J suffer, cannot affect that pcisition because,_ they do -nOf introduce any obs_- Curity in the facts stated in that ground or detract from the substance of thC alle- . gatiQns. mentioned in th<it ground. The fii'st ground of detention mentions that the detenu Was right only form"aily or technically. That is because, the C.I.D;.

Report was suppJied to him along with the grounds of detention with the express stipulation that it for'med "the bas'e of th~ grounds of dctentiOn."·. The

?rou!Jds mention every one of fhe details which need have been mentihned. Tiie C'.l.J?. report was .frnished to the. detenu as forming the source 9f information leading to. the conclusion that he had inade a speech which. necessitated his , dete"ntion in 1he interests of public Order. In the ircumstances, the grounds and'"

the material furnished to thedetenu have to be read together as if the material in the form. of the c.J.D. report was a continuation of the. gr:ounds of detention. [57 C-E, 60 F-HJ . .

Dr .. Ramakrishna Bhardwaj v: The State of Delhi, [1953] SCR 708, I<hudirnm Das v. The'State of West Beng; l, [1975J 2 5.C.i<. 832,@ 838 & 840; Mohammed Yusuf Rowther v. fhe Stqte of J & K, [1980J l SCR 258@268, 269;_

State of BomQav. Atmaram, [_1951].S.C.R. 157; shibbanlal Saxena v. State of Uttar PradesJ,, {1954] SCR 418;

0Dwarkadas Bhattav. State of Jammu & KiJshn:ir. [1956J S.CR. 948; referred lo.

3. The detenu is noi entitled to be informed of the source .oi informa:tio'n received againt, him "ar the cvidence-hich may" have been. collected against him as for example, the. evidence corroborating that the report of the C.I.D. is true and correct .. His right is to receive eery material _particul:ir without which. a full . and effective representation cannot be n1ade. If the order of the detention' refers to or relies upori any docu01ent, statement or Other material, copies thereof have, of course, to be supplied' to the detenu. It is not the Jaw t]lat evidence gatered

by the detaining authoify against .the detenu n1ust also be furnished to liim. [62 G-H; 63 A-BJ

Beni Madhob Shaw v. The State of West Bengal, A.I.R. 1993 S.C. 2455 Har JasDev Singh v. St; te of Punjab, [1974] I SCR 281 @288; Vakil Vakil Singh:

v. State of Jammu & Kashmir, A.I.R. 1974 2337@2341; icchu Devi Chorar_ia V.

Union of India, [1981J l SCR 640@ 650; refer.red to. "

4:· Th~ .failure to furllish the counter-affid~Vit of the District Magistrate who h'1-i. p1ss:!1 the. ord:;:r-of 4"Ctentibn. was an improprietY though in most of the cases

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it m1y not be of milch coruequence, especially if there was no llegation of maJa fides against the detaining authority.

There are no allegations of ma/a fides against the District Magistrate and so,-his failure to file a counter-affidr, vit Will not vitiate the order of detention. [65 A-DJ ·

Shaik Hanifv. State of West Bengal, [1974] 3 SCR 258; Naranja11 Singh v.

State of Madhya Pradesh, A.I.R. 1972 S.C. 2215, referred to.

 [The Court emphasised the in1[10rtance of the detaining authority filing his own affidavit in cases of the present nature and observed that-"Thcfc are degrees of i_mpropriety and the line which divides grave impropriety from illegality is too thin to draw and even more so toJudge. Conceivably, there can be c:_:ises in which Sllch impropriety arising out of the failure of the detaining authority in filing his owri affidavit may \itiatC the order of detention.J [65 C-D]

s. It is desirable that the final order which lhe High Court intends to pa!is should not be "announced until a reasoned judgment is ready for pronouncement.

If the objoctof passing such Orders i! to ensure sp'cedy compliance with them, that object is more of.ten defeated by-the aggrieved party filing a special leave petition in this Court against the order passed by the High Court.

ThC!; t places this Court in a predicament because, without the benefit of ihe reasoning cif the High Cotlrt it is difficult for this Court to <.lllow the bare Order to be implcn1ented.

The result inevitably .i! that the operation of the order passed by the High Court has to be ..

Stayed pending deliver)\ of the resoned judgment. [65 H; 66 ACJ ·

CRIMINAL APPEALATE JURISDICTION : Criinal Appeal No. 692 of 1983.

From the Judgment .and Order dated 29th November, 1983 of the Punjab & Haryana High , Court at Chandigarh in Criminal Writ Petition No. 516 of 1983. ·

K. Parasaran, Attorney Genl. of India, Bhagwant Singh, Advocate General (Punjab), Gurmukh Singh, Addi Adv. GenL of Punjab, D.S. Brar, Asst! Adv. General, G.S. Mann .. Deputy Adv.· General, R.D. Aggarwal, Govt. Adv0caie, Miss .4 S11bhashini and S.K. Bagga for the Appellants.

Hardev Singh, G.S. Grewal, N.S: Das Behl; R.S. Sodhi' and J.S. Sndhawalia, for the Respondent.

The Judgment of the Court was delivered by

CHANDRACHUD; C. J. This is an appeal by special leave against the judgment dated November, 29 1983 of a lear_ncd Single Judge of the High Court of Punjab and Haryana in Crimir.al Writ Petition No. 51.6 of 1983: That Writ Petition was filed by 1he resc

pndent, Shri Jagdev Singh. Talwandi, to challenge an order of dotention pased by the District Magistrate, Ludhiana, on Octob.cr 3,

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PUNJAB v. J.S. TALWAN!:>I (Chandrahud, C.J.) 53

J 983 whereby the respQildent was detained under section 3 (3) read with section 3 (2) of the .N'aiional .security Act, 1980.

The respondent was arrested in pursuance of the order of de- · te'ntion on the night between October 3 and 4, 1983: He was first ladged in the central Jail, Patiala and from there .he was taken to A'nb1la, Baroda and Fathegarh (U, P.). He filed a Writ Petition . . (No. 463 of 1983) in the High Court .to challenge his transfer and detention in a place far awity fr, om .Ambala .. He withdrew that

ptition on an assurance by the Government that he will be sent back to /\:nbila. whi<; h the Government did on October 28.

The grounds of detention were served on the respondent on 'ootobtr 6. 1983.

Those gr6unds show that the petitioner was detained on the basis of two speeches allegedly made by him : one on July 8. I 983 at .N'ihang Chhowani, Baba Bakala, District Amritsar and the ot.her on September 20, 1983 at Gurdwara Manji Sahib.

A11ritsar. The grounds furnished to the petitioner read thus ~

"(I) That yo!} in a Shaheedi Conference which was held from 11 a.m. to 4.45 p.m. on 8-7-1983 at a place kn<>wn as 'Nihang Chhowaui' at Baba Bakala, District Amritsar, delivered a provocative speech to a .Sikh gathering comprising about 2000/2200 Persons wherein you made a pointed reference to the incident dated 2-7-1983 of encounters between Nihangs and police at Baba Bakala and TaranTaran and stressed that in order. to take revenge Sikhs would kill their (Police)' four persons in lieu of the two Nihangswho _had been killed 'in the said enccunters.

(2) That while addressing a conference . convened by • the AISSF (All India Sikh Students Federation) on 20-9-1983 at Gurdwara Manji Sahib al Amritsar and attended by about 7000/8000 Sikh students, you made a provocative.speech wherein you said that all efforts made for the su.ccess of the Akali Morcha having failed, it was still time to establish in Punjab a Government parallel. to the entraf Government and that you are in a position to form such a Government.· You further exhorted that the establishment < .of Khalsa Raaj wasthe only solution to the problems.

You lso made a suggestion that . the Govern'meri!

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will not accept aqy demand dnless it was compelled by force to do so. This statement was also published ·.in the various newspapers. A case F.I.R.

No. 295 dated 27-9-1983 under section,· 124-A Indian Penal Code, and section 13 of the Unlawful Activities (Prevention) Act, l967, was registered at Police Station 'E' Division 'Amritsar, which is under investigatiO)l.'i ' •: .The detaining !'uthority stated in, the last .paragraph of the . detention order that the espondent was being supplied the grounds , _ of detentionin Punjabi (Gunnukhi script) together with an !lnglish

tran.slation thereof and the "'supporting material forming the base ofthe grounds of det(; ntion". The "supporting material'', b)'. which i.s meant , particulars of the. grounds of detention; was supplied to .:)he .respondent. along with the. grounds. These particulars consist

of what is alleged to. be, a report of the speeches made by the-respondent, as recorded by the C.I.D. branch of the. Punjab Police. The ·particulars, of which an English translation was produced in the High Court at Elio AL read thus : . ' ..

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"While .speaking he said that on July 2 by bringing B.S.F., Punjab Police and 'other police the unarmed Nihangs were fired at. There is no count as to how many of .them

ivere killed, because no rollcall is taken 6f the Sikhs; how many came and how many went.

Further said that in Punjab hundreds of : innocent Sikhs have beeq made the target of bullets. The Government has . seen that the Sikhs .go away after paying homage to thC martyrs.. Now we will have to decide as to what steps should be taken. The beloved army oi' Guru' (Nihangs) have pro- . tected our dress and scriptures. It is true that some of them do commit mistakes also.· They should be punished. We . should see that we should kill as many police man as they kill ours, otherwise othey ·;.., ill sloly finish us. . .

. The_ new Iiispector-General of Police Mr. Bhindr, has .stated ihat there are no extermists in Darbar Sahib. Further ' ·

said that Congress wants to finish self respect among you. .cha which is launched by A)<ali D . l, is to save the The M; rcha, which Js lunched by Akali Dal, is to sve fhc H Sikh appearance. The awards have been given to policl:, have they wpn any war? Such a big attack upon the Nihans was_

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PU'NJAB v. J.S. TALWANDI (Chandra.chud, C.J.) 55

ou a pre-planned programme: I say .if tlrcy have killed A onr two men, then you should kill four. J.f they come to idll me like this, then I will die after killing them .. I wil! never go back. Further said 'that' if we get a judicial enquiry

made, it becomes meaningless. Nothing comes out of them.

Now the judicial power has been given to Executive Officers . . They may kill any-body and they complete the enquiry and fill B the file.''. ·

One of the grounds on which the order 6£ detention was challenged in the High Courf 'was that the State Government had failed to. discharge its. obligation under Article. 22 (5) of the Constitution by denying to. t1le respondent an effective opportunity to make a rec· presentation. to the Advisory Board-against the order of detention.· On being asked by the learned Judge "to be more specific", counsel for the respondent statoo in th.e High Court that the State Government had not supplied to the respondent the supporting material on which Ground No. 1. o.f the , grounds of detention was based. Shri

Hardev Singh, who appears' on behalf of the respondent, adopted D that contention by clarifying that the case of the respondent is that the relevant facts stated in the !st ground of detention are totally absent .from the supporting material supplied to him and, therefore,. nJ reasonable person could have possibly. passed the detention order on the basis of that materfal. The learned .counsel l!rged. that the order of detention was bad either because the detaining authority E did not apply its mind to thi<. material before it or, in the alternative, because there was some other material on the basis of which the detention order was passed and that material was not supplied to the respondent. . ·

For the purpose of focussing attention on the true nature of .the respondent's colltention an<! the .Prejudice said to have b, een caused to him. the learned Judge of the High Court resorted to an ingenious . device.

He coined a conversation betwee~ the detaining authority and the detenu on the subject of their rival contentions in this case.

That imaginary onversation may be reproduced, at least fr the merit of its novelty : '

"(The detaining' authority and t:he detenu come face to face.) • , • ' "

Detaining authority: (After reading -0ut Ground N:o. I to H the detenu) : You had made that objectionable speech.

Detenu : ~. Sir, you eem to have been wrongly informed.

I did not deliver any speech, provocative or otherwise, ill a Shaheedi Conference at any such . time, date or place known as 'Nihang Chhowni' at Baba Baka!, District Amritsar, before a Sikh gathering of 2000/2200, as read out by you from ground No.· I. ·

Detainingauthority : (Being cock-sure qf its facts, takes out

the. <'.:.I.D. report and puts it in the hands of the detenu.) : Go through this C.I.D. report . carefully, as ground No. 1 is based on ihat report.•

Detenu Sir, this report does not refer to any speech being made bY. me in a Shaheedi Conference .at a given time, on a given date, at a given place, at Baba Bakala and before a Sikh gathering numbering 2000/2200.

Detaining authority : (Taking back the report from the detenu's hand and subjecting it to a close scrutiny, says somewhat wryly) : Yes, you are right.

The vital data which finds a mention in ground No.

I is missing from the supporting materail. (Regaining quickly-his repose, tlie detaining authority continues): Never mind if the given vital faets

are missing from the supporting material. The supporting material at least reveals that yoµ did utter the objectionable words somewhere, sometime, on some date and before some , persons.

Detenu Sir, but that was not the speech on which you we.re going to .act.

You were going to take action" against me on the basis of the speech mentioned in Gri:mnd No. I. ·

Detaining authority : Very well. (So saying, the detaining authority orders. the detention of the detenu on two grounds by adding one more ground on the basis of another speech.

The detaining atitho- . rity, serves' the order of detention upon the deteliu, containing two grounds of detention. Simultaneously, the detaining authority supplies the supporting material to tile detenu.")

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PUNJAB ~. J.S, TALWANDI ( Chandrach¥d, C.J.) . 57

We must mention in order to put the record straight and in fair- . ness to the learned Judge, that he has narrated this c.onversation in a manner which is slightly different in so far as the form, but not the substance; is concerned. He has narrated the conversation in a running form. We have reproduced it like a dialogue in a play, witho.ut adding anythiµg of our own. Indeed, we have taken care not to make any changes at all in the fictional conversation imagined by the learned Judge because, the questi0ns and answers which suggested themselves to him are,. in a sense, tlie heart of the matter and, in any case, constitute the esseµce of his judgment.

- With respect to the learned Judge, the basic error of his judg- . ment lies in an easy,. unexamined assumption which 'he has made on a significant aspect pf the matter.

The detenu reminded the detaining athority that the C.I.D. rport did not refer to any speech made by him "in a Shaheedi Conference at a given time, on a g\ven date, at a given place at Baba Bakala .and before a Sikh, gathering numbering 2000/2200".' The detaining author[ty could have not p)nibly replied to that question by saying merely that the detenu was right. The detenu was right only formally or technically. That is bcause, the C.I.D. report was supplied to hirri alnog with the grounds of dJtention with the axpress stipulation that it formed "the )Jase of the. grouiids of detention". The grounds mention every one of the details which need have been mentioned. The C.I.D. report was furnished to the detenue as forming the source of information leading to the conclusion that he had made a speech which necessitated hi~ detention in the interests of public order. In the circumstances, the grounds and .the material furnished to the detenu have o .be read together as' is the material in the form of the C.I.D.

report was a continuation of the grounds of detention. ·

' The unqualified reply given by the detaining authority to the detenu, as imagined by the learned Judge, betrays considerable unfamiiarity with the true legal position of the part on the detaining authority. Not only that; but it shows that .the detaining authority forgot that the particulars and the grounds were expressed to be inter-

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Jinked, the forer being the base of the latter. .The detaining autho- G rity. should have explained to the detenu that though the particulars supplied to Wm did not mention those various details, the particulars "" were supplied to him along with the grounds, that it. was expressly clarified contemporaneously that they related to the facts stated in the grounds, that the two had to be read together.and that the grounds H contained the necessary facts with full detils.

The dialogue should .

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SUPREME COURT REFORTS

[1984),2 S.C.R'

have cded there and the curtain tung down. Indeed, the, dialguc, though carofuJly improvised by the learned Judge, assumes what is to be decided, namely, whether the particulars furnished tp tbe, dett:nu suffer. from the infirmity alleged•.

Nvertheless, we will examine independently the argument of the respondent_ th~! he coul>\ not' make an effective representation against the order of detention because the material supplied to him, that is to say, the 'C:I.D . .report of the speech alleged to have been. made by him at the Shaheedi Conference, did not contain the material 'particulars which formed an important' consititlient of the grounds served upon him. His grievance is.that t.he C.I.D. 'report of his speech does not mention that : (!) the Conference was held on July 8, !'983;

(2) it was held at Nihang Chhowani; (3) it was held between the hour~ of u: AM. and 4.45. P.M. (4) it was a "S)iaheedi Conference"; (5) them was a gathering of 2000 to 2200 persons at the Conference; and that, (6) the speech made by him referred to an ncounter at Baba Bakala and Tarn Taran.

Arti_cle 22 (5) of the Constitution, around which' the argument of the respondent revolves, reads thus

"When any person is detaine4 ill punuance of an order , made under any 'raw providng for p; eventive detention, the .. authority making the order shall, as soon as may be,

communicate to such pei; son-the grounds on which the order has been made and shall afford him the earliest opportunity

+ ol' m1king a. representation gains! the order." r , .

This Article has come up for consideration before .this Court in a large number of cases. One of the earliesi°judgments of this Court on the interpretation of this Article is reported in. Dr. Ramkrishna Bhardwaj v. The Sfate of Delhi, (ll in which Patan)ali Sastri, C.J. observed that under Article 22 (5) of the Constitution, the detrnu has the right to be furnished with particulars of .the grounds of his detention, "sufficient to enable him to make a representation which, on 'being considered, may give relief to him".

Khudiram-Das v. The State of West Bengal,• is a Judgment.of a four Judge-Bench of this Court in a cas~ which arose under the Main-

,. ·. ,

(1) [1953] S.C.R. 708 •

(2) [1975] 2 S.C.K. 832, 838, 840.

A"'r'

',.

'r-

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PUNJAB v. J.S. TALWANDI (Chandrachud, C.J.) 59

tenance of Internal' Security '!'\ct,

1971. One of us .. Bbag\\ali, J.,

 A ' who spoke for the Court, surveyed the decisions bearing on the ques-· ticin of the obligation of the detaining authoirty and explaind the nature of that obligation thus' :· ·

"The basic facts and material particulars, therefore, - which are the foundation of the order of detention, will also B be coverei! by 'grounds' within the contemplation of article 22 (5) and sectiop 8 and are Tequired to be communicated to the detenu unless their disclosure is considered by the autho. rity to be against the public interst.

This bas ahvays been the view consistently taken by t!iis Court in a series of decisions.'' C.

In Mohammad Yosuf Ratherv. The State oj Jammu & Kashmir,(ll Chinnappa Raddy, J., in a concurring judgment, deah with t.he im- -'. plications of Artie](> 22 (5) of the Constitution thus :

"' .

"The extent and the content of Article 22 (5) hve been the sullject matter of repeated pronouncements by thi1; Court .(Vide State of Bombay v. Atmaram (2), Dr. Ramkrishna Bhardwaj v. State of Delhi('), Shibbanlal Saxena v. State of Uttar Pradesh (3) Dwarkadas Bhatia v. Stille of Jammu & Kashmir (4). The interpretation of Article 22; consistently ac!opted by this Court, is, parhaps, one of the outstanding• contributions of the Court in the cause of Human Rights.

The law is now' well settled that a 'detenu has two rights . . under Article 22 (5) of the Constitution : (1) To be iI1formed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to th~ subjective 8atisfactioii of the detaining authority and (2) to be .. afforded the earliest opportunity of making a representatfon

against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain, relief to him." ·

.In Khudiram JJas v. The State of We.-t Bengali" it was observed G -that. these two safeguards 'iare the barest minimum which must be

' . . . . .

(1) [1980] 1 $.C.R. 258, 268; 269.

(2) [195tJ s.c.R. .. 161.

(3) J1954] S.C.R. 418.

( 4) [1956] $.C.R. 948.

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 observed before an executive authorij:y can be permitted to preven , tively detain a persbn and thereby drown his right of personal librty

in tho nanie of public good and social security". ,

The q[1estion which we have to consider in the light of these decisions iS whether sufficient particulars of the first ground of detention were furnished to the respondent so as to enable him to exerci'e effectively his constitutional right of making a representation against .the order of Jetenlion.

The obligation which rests on the detaining authority in.this behlf admits. no exception and its rigour cannot be relaxed under any circumstances.

Having given our anxious consideration to this questc'n~ it seems to us impossible to accept the view of the High Ccurt that sufficient particulars of the first ground of detention were not furnift.ed to the detenu so .as to enable him to make an effective representaiion to tho detaining authority, that is to say, a representation 'll'hich en .being accepted may give relief to him.

This is not a case in which the groun\l of d'etention contains a bare or bald statement of the con<; lusion to which the detaining authority had come, namely, !hat it was necessary to pass the order of detention in order to preW, nt the detenu from acting in a manner prejudicial to the interests of pub] ic order.

The first ground of detention with which we are concerned in this appeal, mentions each and every one of the material particulars which the respondent was entitled to know in order to te able to make a full and' effective representation against the orci er of detenticn.

That gr01!nd mentions the place, date.and time of the alleg<d rr.eeti1ig. describes the occasion on which tl1e meeting \\'as held, that is, the 'Shaheedi Conference'.

It mentions the approximate number of persons who were present at the meeting. Finally, it mentici:s 'll'ilh particularity the various statements made by the respondent in his speech..

These particulars mentioned in the grcur:ds of detention comprise tlie entire gamut of facts which it was necessary fer the res- .pondent to know in order to make a wellinformed representaticn.

The inadequacies from Which the supplementary particulars furnisl:rd

to tile respodent along with ground No.1 suffer, cannot affect that position because; they do not introduce any obscurity in the facts stated in that ground-or detract from the substance. of the allegations mentioned in that ground. The argument of the respondent that he could not make an effective representation in behalf of ground N~. 1 because of the inadequacy of data in the partieulars supplied to him, has therefore to be r_ejected.

However, w~ are somewhat surprised that in a matter of this nature,

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PUNJAB v. J.S. TALWANDI (Chandrachud, C.J.) 61

the detaining authority should have adopted a somewhat casual and unimaginative approach to his task. We asked the learned Attorney General to produce before us the original .version of the C.LD. report o( which an extract. was supplied to the respcndent by way of particulars; The original version contains almost evEry one of t)le material details pertaining to the meeting which are mentioned in ground No. 1 The detaining authority needlessly applied his scissors excising the data which mentioned the date, tH place, the time and the occasion of the meeting. It is this lack of thpughtfulness on the part of the detaining authority which furnished to. the respondent the semblance of n argument. This Court has observed in numerous cases that, while passing orders of detenticn, great care must be brought to bear on their task by the detaining authorities: Preventive detention is a necessary evil but essentilly an evil: )hercfore, deprivation of personal Jibhty, if at all, has to be on the strict terms f the Constitution. Nothing less: We will utter the oftgiven warning yet once more in the hope that the voice of reason will be heard.

Shri Hardev Singh contended, in the altematiVe, that the order of detention suffers from a total non-application of mind because, that order could not have been pass.ed on the basis of 1!1e C.J.D. report . wnich docs not refer to any cif the facts which are mentioned in .the order of detention. It is und.oubtedly true tliat the case of the appellants is that the order of deiention is founded upon the report of the C.I.D., relating to the speech made by the respondent at the Shaheedi Conference. But the argument of the learned couneel overlooks that what was furnished to the respondent was an extract from the C.J.D. report and not the w)10le of it. However, that has not caused any prejudice to the respondent since the .grounds. and the particulars we.re served upon him simultaneously and ground

No. I mentions every concejvable detail whicl) it was necessary hJ mention in order to enable the respondent to make a proper representation against the .order of detention. . Evidently; the . detaining authority had before it the whole of the C.I.D. report on the basis of which it passed the order of detention. What was omitted from the extract furnished to the respondent was incorpo'rated in ground No. L It is therefore not .possible to accept ihc argument that the order of detention is bad because the detaining authority did noi apply its mind to the question as to whether there was material on the basis of which the respondent could be detained.

It was further argued by the .]earned counsel that tbe detaining H. authority should have disclosed the evidence on the basis of which , .

the order of detention .was passed because, in the absence of knowledge

of such evidence, the respondent could not have made an effective representation against the order of detention. There is no substance . in this .contention. It is not .the 'law that the evidence gathered by the detaining authority. against the detenu must also be furnished to him,_ . ·

foBeni Madhob Shaw v. , The State of West liengal,'" .it was argued on behalf of the detenu that the details of the activities attributed to him were npt disclosed to him, as a resul~ of which his right to make .a repr.isentation to the Government was seriously prejudiced. It was hold by fais Court tliat since the activities forming the grounds ; f d:itenion woro disclosed to t[1e .detenu in clear terms and since such

diclosure furnished adequate information to the detenu to enable hiin to make an elfectiv, e representation against his detention, the lluQ-disclosure of sources of information or the exact words of the . information which formed the foundation of the order at detention could not be complained o(

In Har las Dev Singh v. State of Punjab,'2' it was held that the _conclusions drawn from the available facts constitute 'the grounds' and that the ground must be supplied to the detenu. The Court observed that the detenu is not entitled to kMw the evidence nor thesource of the information : What must be furnished to hi~ are the grounds of detention and th? particulars which would enable him to make out a case, if he can, for the consideration of the detaining authority. . -

In Vakil Singh v.' State of Jammu and Kashinir,'Zl it was held that since the basic facts, as distinguished from fctual details were

inorporat-od in the material whih was suppiied to the detenu, nothing more was required to be .fotimated to .him in order to enable him to make an effective representation. ·

These cases show that the detenu is not entitled to be infor1'Jed of the sou•ce of information received against him or the evidence which may have been colletcd against him_as, for example, the evi<lence corroborating that the report of the C.I.D. is true and correct. His rightis to receive every material partici1lar without which a fo\l and

(!) AIR 1973 SC .2455.

(2) [19741 I S.C.R~ 281,' 288'

(3) AIR 1974 2337, 2341. ·

. ---(

}'UNJAB v. J.S. TALWANDI (Chandrachud, C.J.). 63

 effective representation canno( be made. If the order of detention refers to or teles upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu as 4eld by this Court in lchhu.Devi Choraria v. Union of lndia.lll That question does not arise here since no such thing is referred to or relied upon . in the first ground of detention, Indeed the furnishing of the C.I.D. report, of which a truncated extra9t was furnished to the respondent, was a suprfluous 'exercise in the light of _the facts of the instant case. , .

 Shri Hardev Singh relied upon the folloWing passage in the judgment in Khudiram in support of his conteniion that the entire miterial. which was before the detaining authority, including the evidence gathered by him, must be furnished to the detenu :

"But if the grounds of detention ar.e not communicated to him how can he make an effective representation ? The opportunity of making a representation would l:J~ ren\!ered illusory, The communication of the grounds' of detention is1 therefore, also int\mded to subservc the purpose of enabling the detcnu to make U)l effec\ive representation .. If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvi.ous that the 'grounds' mean alt the . basic facts and materials which have been taken into account by the detaining uuthority . in making the order of detention and on which, therefore, the order of detention is. based."

These observations cannot be construed as meaning, that the evidence which ,/, as. collected by !he detaining authority must also be furnished to the detenu. As the very same paragraph of th~ judgment at page 839 of the report shows, what was meant was that the basic facfs and th.c material particulars which form.the foundation of the order of detention rriust be furnished to the detenu since, in the true sense, they form part of the grounds of detention and without being apprised of the same, the detenu cannot possibly make an effective representation. '

Shri Hardev Singh found serious fault i.th the fact that in answer to the writ petition filed by the respondent in the High Court, the counter-affidavit was sworn by Shri K.C. Mahajan, Deputy Secretary in the Honie Department, of the Government of Punjab, and

(1) [1981] 1 S.C.R. 640, 6~0. ,

D ..

not by the District Magistrate, Ludhiana, who had passed the order

of detention; We are not prepared to dismiss this submission as of no relevance or importance. In matters of a routine nature, if indeed . .there are any matters of a routine nature in the field of detention, .. a counter-affidavit may be sworn by a person who derives his knowledge from the record of the case. Howewr, in sensitive matters of the present nature, the detaining authority ought to file his own affidavit in answer to the writ petition and place the relevant f.ats before the CoiJrt which the Court is legitimately entitled to know.

In Shaik Hanif v. State of. West Bengal,' the counter-affidavit on behalf of the State of West Bengal was filed by the Deputy Secretary (Homo), who verified tlie correctness of the averments in his affidavit on the basis of the facts contained in the official records. The District Magistrate, who passed the order of detention, did not file his affidavit . and the explnatioh.which he gave for not doing so was found to be unsatisfactory. Following an earlier judgment in Naranjan Singh v .. State of Madhya Pradesh,2 it was held by this Cou, rt that, in anser

to a Rule issued in a habeas corpus petition, it is incumbent upon the State to satisfy the Court that the detention of the petitioner is legal and is in ·onformity not only. with the m; rndatory provisions of the Act under which the order of detention is passed but is also in accord with the requirements implicit in Article 22(5) of the Con-' stituti<in. Sarkaria, Jobserved. on behalf of the Court :

"Since the Court is precluded from testing the subjective satisfaction of the detaining authority by.objective standards, J it is all the more desirable that in response to the Rule Nisi, , the counter-affidavit on behalf of the State should be sworn to by the District Magistrate.· or the authority on whose subjective satisfaction the detention order under s.3 was passed. If for. sufficient reason shown to the satisfaction of the Court, the affidavit of the person ,;, ho passed the order. of detentiori under scctioi1 3, cannot be furnished, the counte~ .. affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government . Secretariat or submitted it to the Minister or other Officer duly authorised under the rules of bnsiness framed by the Goverrior under Article 166 of the Constitution to pass orders' on behalf of the Government in such matt.ers."

H (I) [t974J 3. s.c.R: 25s, 262.

(2) AIR 1972 SC 2215.

..._.

. PUNJAB v~ 1.S. TALWANDI (Chandrachud, C.J.).. 65.

. .

After reviewing certain other decisions, the Court held .that the failure to furnish tlie counter-affidavit of the District Magistrate . who had passed the order of detention, was. an hnpropriety though in most of the cases it nray. not be of niucli consequence, especially jf there was no allegation of malafides against the detaining authority.

In the result, the absence of the affidavit of the District Magistrate .was held not to vitiate. the order of detention.

In tqjs case too, there are no allegations of.ma/a fides against the District Magistrate and so, his failure to file a counter-affidavit will not vitiate the order of detention. We cannot, however, leave this subject without emphasising once 11gain the importante of . the detaining authority filing his own affidavit in cases of the present nature. There. are degrees of impropriety and the line which. divides grave impropriety from illegality is todtthin to draw and' even more so to judge. Conceivably, there can be cases. in which such impr'o; priety arising out of the failure of the detaining authority in filing his own affidavit' may vitiate the order of detention;

Finally, Shri Hardev Singh has cbutenqd that the respondent was unable to give proper instructio1'!' to his counsel when the matter was ho; ard by the Advisory Soard. Counsel says that the respondent . . was transferred from place to place an.d ultimately, he was produced . before the Advisory 'Board an hour or so before.the commencement of proceedings before the Board. Thai left no time for hfm to instruct his counsel. We do not see any substance in this. grievance. The respondent was .represented by an. advocate.before the Advisory 'Bo;1rd. The learned advocate argued the case of the respondent . along with the cases of two other dtenus. It does not appear that any grievance was made by him that he was not able to 'obtain ioistructions from the respondent so as to be able to represent bis case effectively before the Advis.ory Board.

For these reasons, we allow the appeal and set aside the judgment of the High Court A• desired by counsel for the respondent, we ramand the matter to the High Court for disposal of the remaining

E. ,

.coiitentioris raised by the respondent in his Writ Petition. G

We would like to take this oppqitunity to point out that' serious diffiJnlties arise on account of the practice increasingly adopted by the High Courts, of yronouncing the. final order without a reasoned judgment. It is desirable that the final order which the If4gh Court inte.nds to pass sh!iuld not be announced until a reasoned judgment H

. '

"66 SUPREME COUl\T REPORTS

[!984] 2 S.C.R.

is. ready for prorionncement. Suppose, fot examnle, that a final , order without a reasoned judgment is announced by the High Court that a hous~ shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person

accused of a serious charge is acquitted, or that a statute is 'unconstitutional or, as in the 1nstant case, that a detenu be released frcm detention. Ifthe object of passing such orders is to .ensure speedy • compliance with. them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this "court, in a . predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order lo be implemented. The result inevitably is that the operaticn cf the order passed by. the High Court has. to be stayed pending delivery of the reasoned judgment. • ·

It may b~ thought that such orders are passed by this Court . and therefore tl)ere is no reason why the High Courts should not '

. do the same. We would like to point out rspectfully that the orders

passed by this Court are final and no appeal lies against them. The

SupremeCourtis the fin1l Court in.the hierarchy of our courts. Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances. Orders passed by the High Court are.subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned .statutes. We thought it necessary to make these observations ..in .. order that apractice which is not very desirable and which achieves no useful purpose may not groiv out.of its present infancy. . . . •

.S.R.

Appeal allowed qnd Case remanded to the High Court

. )-

STATE OF PUNJAB

December 16, 1983

Y.V. CHANDRACHUD, C.J.

P.N. BHAGWATI

SEN

M.P .. THAKKAR, JJ.

National Security Act

section 3

Article 22(5)

Constitution of India

Article 22(5)

sections 33

Criminal Procedure Code

Section 354

section 3

section 3

Security Act,1980

PUNJAB V.

Vakil Vakil Singh

[1974] 3 SCR 258

K. Parasaran

Bhagwant Singh

Gurmukh Singh

D.S. Brar

G.S. Mann

R.D. Aggarwal

S.K. Bagga

Hardev Singh

Das Behl

R.S. Sodhi

J.S. Sndhawalia

CHANDRACHUD

Jagdev Singh. Talwandi

Chandrahud

section 3

section 3

Baroda

Fathegarh

Amritsar

Baba Bakala

TaranTaran

Punjab

Indian Penal Code

section 13

Unlawful Activities (Prevention) Act

High Court at Elio

Punjab Police

Bhindr

Darbar Sahib

Nihans

Such a big attack upon the Nihans was_

, ----

.i: -

. '

Hardev Singh

PUNJAB

Chandrach¥d

July 8, !'

Baba Bakala

Tarn Taran

Patan)ali Sastri

Article 22

Bbag\\ali

article 22

Article 22

Article 22

Article 22

Jetenlion

Chandrachud

Khudiram

K.C. Mahajan

[1981] 1 S.C.R. 640

State of West Bengal

Article 22(5)

Article 166

AIR 1972 SC 2215

PUNJAB

Article 136


• ,.

• ...• . . 558 A

.• VIVEKA NAND GIRi

v ..

, NA VI AL K!Sf!:ORE SAHI

February 16, !984 ..

. [S. MURTAZA FAZ~L ALI, A. VAAADARAJAN AND

RANGANATH MISRA, .JJJ

Ri!presentatton of _the People At. 1951 Section 36 (4}-Nomiffation papeTiiscr, pancy in age of candidate as mentioned rn.'the nom1ndt101r paper. and tn electoral roll-Rejectron .of no1n1nation pdper-Whether vcil1d and proper.

T, li.e ap_pellant was elected to tJie State Legislative Asseffibly and the first rspon ient, the defeated candidate. -filed an Election Petition for settingaside the election '"as being void bn accotint, of, iffiproper erjection of the nomination paper's .of one of the candidates by the .Returning Officer. t was c:Ontended tha.'t. the Returning Officer rejected four ri01nination papers submitted-by the candidate, three on the ground that 'the serial 'number aUd part number o'f 'the caD.didates Wiere wrong withreference to_ the el_ectoral roll, .and the fourth on the. ground-that there was. dlfferenfe in the ageof the candi_date.

The High Court beld, that no nomination pit per cOUld be rejected qnless the defect was of a substantial character,· and that the difference in the age of the candidate ·as given in the electoral.roll arld the nomination paper Was not a material enor and no. opiJortunity haviilg been given to ihe.cindidate when the nOmination papers were filed tO re.move an:Y defect, the rejection of the nomination papers by the.Return- . ing Officer Was_ improper, and the election of the appeJlant \vas set sside as being VQid on that grounp.: ' '

Dismissing 'the appeal,

HELD: 1. The rejettio:n of the n.Omination paper on the grond of difference in the age. was improper, fof having rcgafd to the :provisions of sectiofl 36(4) of :the or the Repreentation 'Of the Peop'!e Act, 1951 the defect is not,. of a substantial . character. The' appellant's election. iS 'consequently void under sectio.n 1 oo (l)(c) .of the Act on th_e gound of improper rejection of the nomination paper.- [564 E-F]

In the :instat _cise, the differ.;:nc~ in the age of the cadidate,· as entered i~ the G electoral ro_ll arid the omination paper wollld fall under th, e categoryof 'inaccurate

de3Cripti.on' mentiond in the prC>viso tO" section 33(4) and it was theefore.obligatory ·

on the_ part of.the .Returniilg Officer to have it corrected or to overlook it having regard to the-language f the said proviso. [563 H; 564.A]

. 2.

A. p:!rsori to be entitfoci to be registered in the electoral. roll for a consti- ·. tUency should be~ 21 years of age on thi qualifying._dateand. a pers_on to be chosen, . . ' -

" . - I

)ia·

' ~~~

!(

~· ...

....

., ·~

...

. '

VIVEKA NANO v. NA WAL KISHORE (Voradarajah, J.) .. 559 . ' . . .

to fill a seat l-n 'tle Lcgislat.ute .. of a. S_tt~· hOuid iot be. iess. than .25 yars f age.

The sbstanti.il_requirment as regards'-the questiori of the age bf the candidate, _at . fhe tin1:! of sc, utin.Y of nqrnitiµ.tion papef'iS that. he_'shOuld have completed. 25 'Years of age and :=; hould l1a.ve b~:::n registered in the elcctora-1 roll for that constituency and

.•, notw!tet~r threwas_a differe11ce of 4.Years in the age of th_c candidate as n1entio'ne'd .' in th;;: clect?ra~ roll an~ , th:) no'mination pap'ei.-as in, the in_stant case. The (Jifference

inagc is "'not t'n error of subStantif1T character. [562 G-B"; 564 C-D] ~. . . . . . . . . i .

CIVIL APPELLATE JuRJSD!CtION : Civil Appeal Nti: 1081l. of 1983•'

ll~ ' From the judgmeut and''oi:der d•ted 11-1.0-83 otthe .Patna High Court in, t.P .. 27 of i980. , ' , ' . '• .

Dr. f;,.M. Si11ghvi, KN. Rai and A.M. Singh vi for th7 appellant.

k ...

L:R. Singh, A.Shara11 & Svlama11 Khurshid. ror the. respondent. ' . ' '. .

D.P. Si11gh; and D, P, MukhiHjee for the intei'vener. . . .• ·, ..

.. - . ·~ The Judgment, of the court was delivered by

', VARADA.RA.JAN, .t. This appeal under s. I 16(A) of-the Represerita- :.tion of People Act, 1951, hereinafterrefqrcd to as, the. 'Ac( arises out , of the judgment ofa learned Single. Judge.ofthc Patna High Court in Elyction Petition, No. 27 of 1980, setting aside the apr.ellant's, elec- , !ion to the Bihar Legislative' sse; nh'y from No~ 64, Rui Saidi:mr' I .constituency on the ground tl1at t.he election is V<{id on account , of

:··~;1.1n~_roper .rjection Of thy: ndmination papers 'of one 'Ram Kumar . . Jin. The election petition was filed by the first respondent, Nawal

Kcshore Sah;'. 'tl1e defeated candidate. The : el.ection : 'was' .• held ori

3.1~5,)980 and the results were announced on 1:6-1980 after, the.cgun- i' ting._ Tho appellant who contested as the Congress <Jl. andidate secure:\ 38;463 votes while. tne tespondent who eontested as the Janata.

Party candidote secured 26,991 votes'. The other candidates secured

• . ' ' 4 . - . " . much less ai1d tlie appcllaµt who secured a majority of 11,472 .votes over the respovi:bi\t was. de_clared elected by the Returning Officer. After having heard the learned counsel.' for (he parties w6 dismissed ·. the appeal without co; t& on 8-2-I9S4'for reasons to follow: Now we

prceed to give. the reasons . ..

. t' . ' ' . . . •. . .. . . The respondent ore.ssed onlY. ohe ground during the trial before

th~ 'ie.tr.1:d Single Judge a_nd thai was the alleged improper rejectidin

. .

E "

.G, ..

or the nomination papers of Ram Kumar, Jha who filed four nom-

. H _nation papers nun; ibered.as 39 to 42. The proposer in tQ.e nomination,

• ' ...

, .

560 . .

SUPREME COURT REPORTS

(1984] 2 S.C.R.

paper No .. 39 was cine Nand Lal Sah while the proposer in the nomination paer No. 40 was one Ganesh Pt'asad Ciarir. The proposer in. 'ihe'nomination papers Nos. 41 and 42 was am Kumar Jha's own brother Birendra Kumar Jha who has given evidence on the. side of the appeltatas R Wc9, Ail, the four nomination papers of Ram Kumar Jha were presented to the Returning Officer RW-7 .on 2-5-1980 and he

scrutiised all' the nomination papes.of Ram Kumar 'Jha. Ram Kumar 'Jha had mentioned.the serial number and part number as 415.and 1.3

respctively in the nomination paper No. 39, as 391and17 in' the nomi' ·.nation.paper N9. 40, as 324 and 14 in the nomination paper N~. 41:, and it$ 326 and 14 in the nomination paper o. 42 .. The Returning Officer.rejected the nomination papEr No. 39 on the ground that the seriid number .and part 'number of the candidate were wrong with reference to ihe electoral roll Ex. 4, noniinati.cri paq No. ~O on the ground that the serial number and part number of the candidate. were . wrong -ad t_he 'age of the candidate was 'not mentioned, nomination. paper.No. 41 on the ground that the serial number of the candi~.ate was wrong and _nomination paper No. 42 on the i; round that there was difference in the age of the candidate. Ram Kumar J.ha had decla- . red in bis nomination paper No. 42 dated 2-5-1980 in regard to wicb ·

the argument was confined before ns that he. has completed 33 years ;(age while it.iscommon ground that in the electoral roll Ex. 4 prepa- ' . red iii. the year 1980 bis age is mentioned as 37 years: The Returning Oflber has deposcd as RW~7 about the rejection of those four nominaton p1pcts Ex. 2 to 2, (c) on the above grounds by his orders Ex. B to B-3. . .

. . • ij . . . S. ; I 00 (!) ( c )of the Act provides that if the High Court is of the . opinion that any nomination paper has been improperly rejected if shall declare the election of the returned candidate to be void. On a consideration of the evidence ava.ilable on the record and the arguments of the learned counsel for the. parties iti the light of the authorities placed .before him the learned Single Judge found that no. nomination paper conld be rejected unless the defect is of a substantial character as pointed out even in para 13(i) of the Handbook for Returning

Officers issued by the Election Commission of India and that lhe diffe- rencc in the age of t.h~ candidate as given in the.electoral roll ar.d the nomination paper is not a material error and' no opportunity was given to the candidate; Ram Kumar Jha wben the nomination papers were filed on 2·5-1980 to remove ani:, defect' though s, 33(4) of the Act iays down that on the.presentation '6f \he nomination papers the Returning Officer shall. satisfy himself that the names and electoral roll numbers

... (

't'

. viyEKA N:AND V. NA WAL ]\!SHOR~ (Voradarajan, J.) 561.' , . . . • of the candidates and' their .proposers as enterd in the nomination., A papets are the. same as those .entered in the electoral roll. The learned ..

Ju<ige held 'that the rejection ol, the nomination papers, Exs. 2,2-a and 2, c by the Returning'OJ!lcer was improper., I~ that view he allowed, the election. petition without costs only to the. extent of setting a.side ·. . the appeallant's election as being void whidi was the only relief prayed • • for in the election petition.

. '

'. , .

Before ·.us, Dr.· L.M. Singhvi, Senior Counsel who appeared for the appellant proceeded to draw our attention to .the evidence of cer-

.-1.: .. ·.· tain witn!'sses including that of Ram Kumar Jha's brother Birendra

' Kumar Jha, RW-9 for proving that Ram Kumar Jha had. tiled the nomination p1pers pursuant io some collusion with the object 6f enab- . ling ali. . election. petitfon .beingj)led against' any successful candidat•. • But for want of specific aitegation about any collusion .or fraud and also an issue regarding any call.usion we cl.eclincd to hear any argument on the question. of collusiJn. Consequently, the only point which was call'\lassed before us 'by .Dr . .Singh vi appearing. for the appellant and , Mr. L.R. Singh appearing for the respondent was as. to whether the nomination papers of Ram Kumar Jha were improperly rejected by the Returning Offic_er and th6 -appeilailt's election -i~ "therefo":fe void under. s, JOO (1) (c) of the !he Act.

S. 33(6) 0f the Act lays down that nothing in .that ieetion shall prevent any cahdidate from being nominated by mo're than one nomi- ·. i. .. . nation paper. Bt t~ proviso theretp says that not more than four . nomination.papers shall be presen\ed by or.on behalf of any candi.date or a=pted by the R.etun:iirig Officer for. election in the .same constituency.· s.· 19 of"the.Ad lays down ihat subject to the earlier provisions contained in Part 3 of the Act every person who is noJ kss than 21 't . years of age on the qualifying date and is ordinarily resident in a constituency shall be:entitled to be .registered in tlie electoral roll.for that c01{stitutency: Therefre, a person to be entitled to be registered ifi . the electtoal ·.roll loi the constituency should ordinarily be a resident:

in that constituiency and should not be less tha.n 21 years qf age on

F' '

. "tho qualifying d•te, Article 173 of the Cqnstitution prescribing the ·

qualification for membership .of a Staie Legislature lays down that a person shall not lie qualified to be chosen to fill aseat in the Legislature of a Sfafe unless he is a citizeri of India, and makes and subsripes before some person authorised in that behalf by the Election Commission an oath or affirmation according fo the-form set ·uHor the pilr- . pose in tlie Third Schedufe, and is, in the case of a seat in the Legisla-

H: .

,. - ) . -- . ·' - . - . .

. '.!

.. ·~ . . '~' -

SUPRE\!E COURT

R,~PORTS

[1,84] 2' ~.C.11. •

. \ . . . . ' . - . ' . - tive Assembly, not less than 25 years of age and, in. the'caie of a seat in the Legislative Council, not less than 30 years of age,- and possesses such other qualifications as may be prescribed fit that behalf by or . . under any la vi mad~ by Parliament:- Therefore, a person to be :entitled to be chosen to.fill a seat in the Legislative Asembly of a State should be not\ess than 25 years of age. In the present case Ram Kumar Jha B. -' is noted in' the electoral roll, Ex.'4 prepared in 1980 as being 37 years old while he has declared in the -nomination paper No. 42 marked as Ex, 2-c tha.t he had compJeted 33 years .. of age. As stated earlier the

 nom\!lation paper had been rejected by the Returning Officer; RW-7 on the ground that tliereis differeJ1ce'in the age of the candidate bet- . . . . •' , \veon w:nt h'3 been m'ntioned in fhe electoral roll arid the nomination paper and it :is not based on any ther ground, It is nobody's

.· ' case that the Returning Officer found any difficu.lty regarding the ·

identity of.the candidate, Ram Kumar Jha on account of this difference in the age mentioned in an \'lectoral toll'and the nomination paper.· ·.The point fo(consideratin therefore is whether therejection of this .nomination paper by the Returning Offioer on the ground .of difference D :'. inJhe age in the electoral rol and the nomination paper is improper .•

S. 33(4) of the Act lays down that on the.presentation ofa nomination paper, tl{c Returning Officer shall satisfy himself thar the names and electoral roll numbers of t)le ca1ididate,' and his proposer as entered in'the nomi1ption paper are the same as entered in the elecforal roll• .•

G· •

Th~ pr, oviso to that sub-section reads thus: . . .

"Provided that no misnomer or inaccurate description or clerical, . technical or printing error in regard to the name of the. pn4idate > " '.or his proposer or any other. person, or in regard to any place

-· mci1tioned in the electoral rol! or the norilinatfoJ! pap.er andn9

cl"ilca'l, technical or printing error in regard to the electoral roil .numb•rs of any such person in" the electoral roll •or the nomi' 1iation paper, haH affect the full operation of ihe electoral roll: . . or the nominationpaper with respect .to such. person br place in any case whether t)1e descriptio.n in regard to the n.aine of the person or place is such as.to be commonly understood; and tho . retn; ning officer shal! permit any. such misnomer or inaccurate . ' description or clerical, technical or printing rror to be corr7cted ·

and where necessary, direct that any such mi'snomer, inaccurate . " descript!on, clerical, technical or printing ert0r i, n the eleetorill

--ro)l or.in the nomination paper shall be ovrlooked:" ··

· H - .

We are of the opinioi1 thalthe difference in.the age of the aandate, Ram Kumar. Jha as entered in the electoral roll and .the no111i- . . . . '

...

• c

J,/

~· ., .

vrvsi:A NAND v .. NAWAL''KISHOR.r(Voradarajan, J.) 563

nation paper would fall uniter ihe .catgory of 'inaccl)rate description' rrientio"ned in the abbve proviso andlhat it wasobligatory on the part of the Returning Officer to .have it corrected or. 'to overlook it having regard to the .language of the proviso. .

. ·.' • .. , I , ' ," . '' ·.

S. 36(4) of the Act lays down that" the .R, eturnirig Officer shall ' not reject any nomination paper on the ground of any defect which '

is not of a substantial . character.· As stated earliei;, a person to be '.i. e.n.titled to be registered i11 the electiiral rol\for a constiti1tency should , . be 21 years of age on the qualifying cjate:and a person to 'be chosen

-\. _to fill a seat iri the Legislature :of a State should not be less than 25 years of age. Ram.Kumar .Jha had declared in the n:ominafion paper No. 42 tilat he had completed 33 years of age: Therefore, the s.ubstan-

• G.~. tial requirenieni as regards the question of age of the candidate, Ram.

Kumar Jha was that at the time of scrutiny of nomination paper he

. "

should have completed 25 years of age and should hiive been .registered

' • It .• ,.., in the electoral roll for thatconstituency and not whether. there was a difference of 4 years in the age of the candidate as mentioned in the electoral roll and the nomination paper: The difference .in our opinion is not u error of s.ubstantial tharactcr. As tlie.rejectlon of ihe.nomi-. nation pap;:r No>42 was-not on the groun'd that there. was any difficulty as rgards iderttiiyl.?n account of the difference i_n the age ineuti<1ned .'in the elctora.I roll .arid the nomination pa per we are , clearly >- efihe opinion that ihe rejection of the nomination paper on the grouna of difference in the age ll'as improper, for having tiogard to provisions )...._. f s. 36(4) of the Acdhe defeC!, s not. of a sllbstantial c.haracter and we J.oJd that the appellant's election 1s consequently void under. s-c.100

(1) (c) ofthe Act on the ground of improper rejectio1i of the nomiution paper. It is for this reason 'that we dismissed the appeal without

any or<ler as to cpsts s , mentioned above. 't.··

Appeal, dismissed.

u,

' .

VIVEKA NAND GIRi

S. MURTAZA FAZ~L ALI

RANGANATH MISRA

Section 36

section 33(4)

M. Si11ghvi

KN. Rai

A.M. Singh

R. Singh

Svlama11 Khurshid

D.P. Si11gh

People Act, 1951

Ram Kumar . . Jin

Ram Kumar, Jha

Nand Lal Sah

Ganesh Pt'asad Ciarir

Birendra Kumar Jha

Ram Kumar Jha

Ram Kumar 'Jha. Ram Kumar 'Jha

Ram Kumar J.ha

Voradarajan

L.M. Singhvi

Birendra

' Kumar Jha

.Singh

L.R. Singh

S. 33(6)

Article 173

India

Election Commission

Ram Kumar Jha B.

Ram Kumar Jha

S. 33(4)

S. 36(4)

Ram.Kumar .Jha

Kumar Jha

s. 36(4)