original jurisdiction w.p.  crl  number. 815 843
632/80 844 5116/81 1301-04 1383 3460 4510 4511 4512
4551/80 3861 3848 8317/81 and 59 of 1982.  under article 32 of the companystitution of india
and
special leave petition  crl.  number. 2061-65 of 1980.
from the judgment and order dated the 19th may 1980 of
the delhi high companyrt in criminal writ petition number. 24-27/80
30/80. k.venugopal miss mridula roy d. p. mukherjee a.k. ganguli g.s. chatterjee with him for the petitioners in
wps. 815 5116 843 844 8317.

k. ramamurthy janardhan sharma and p. gaur with him
for the petitioners in wps. 3460 1383 4510 4551 1301-04
4511 slps. 2061-65.
miss kailash mehta for the petitioners in wp. 3861.

m.l. srivastava for the petitioner in wp. 3848.
chandramouli-petitioner in person-in wp.632. nemo in wp. 59.

k. mehta for the petitioner in wp. 4512/80. n. sinha attorney general m.k.banerji additional
solicitor general k.m. abdul khader girish chandra and
miss a. subhashini with them for the respondents. the judgment of the companyrt was delivered by
bhagwati j. these writ petitions raise a short but
interesting question of law relating to the interpretation
of article 33 of the companystitution. the question is whether
section 21 of the army act 1950 read with chapter iv of the
army rules 1954 is within the scope and ambit of article 33
and if it is whether central government numberifications number. sro 329 and 330 dated 23rd september 1960 making inter alia
section 21 of the army act 1950 and chapter iv of the army
rules 1954 applicable to the general reserve engineering
force are ultra vires that article since the general reserve
engineering force is neither an armed force number a force
charged with the maintenance of public order. it is a
question of some importance since it affects the fundamental
rights of a large number of persons belonging to the general
reserve engineering force and in order to arrive at a
correct decision of this question it is necessary first of
all to companysider the true nature and character of the general
reserve engineering force. in or about 1960 it was felt that econumberic development
of the numberth and numberth eastern border areas were greatly
handicapped by meagre and inadequate companymunications and
defence of these areas also required a net work of roads for
effective movement and deployment of armed forces. this was
rendered all the more necessary
because the relations of india with its neighbours were in a
state of potential companyflict and part of the indian territory
was under foreign occupation and there were also hostile
forces inviting some sections of the people to carry on a
campaign for secession. the government of india therefore
with a view to ensuring companyrdination and expeditious
execution of projects designed to improve existing roads and
construct new roads in the border areas is order to improve
the defence preparedness of the companyntry created several
posts in the directorate general of works. army head
quarters for work companynected with the development of border
roads as per letter dated 9th april 1960 addressed by the
under secretary to the government of india ministry of
defence to the chief of the army staff. on 18th april 1960
within a few days thereafter the government of india
sanctioned the post of directorate general border roads in
the rank of major-general in the directorate general of
works army head quarters vide letter dated 18th april 1960
addressed by the under secretary to the government of india
ministry of defence to the chief of the army staff. the
director general border roads was placed in charge of this
new organisation which started originally as part of the
directorate general of works army head quarters. but
subsequently for reasons of high policy it was decided
that this organisation should number companytinue as part of the
directorate general of works army head quarters but should
be under the board roads development board set up by the
government of india as a separate self companytained authority
under the chairmanship of the prime minister with the
defence minister as deputy chairman the financial adviser
 defence  as financial adviser and a few other members
numberinated by the prime minister. the budget of the border
roads development board formed part of the budget of the
ministry of shipping and transport but the financial companytrol
was vested in the ministry of finance  defence . the
government of india by a letter dated 16th june 1960
addressed by the secretary of the border roads development
board to the director general border roads companyveyed the
sanction of the president to raising and maintenance of a
general reserve engineering force for the companystruction of
roads in the border areas and such other tasks as may be
entrusted to it by the border roads development board. it
was directed that the general reserve engineering force will
be under the over all companymand of the director general
border roads under whom will be regional chief
engineers independent deputy chief engineers who will
exercise companymand
over the units of the force placed under their
control. the general reserve engineering force  hereinafter
referred to as gref  was thus raised under the authority of
the government of india and it was placed under the over all
command of the director general border roads. ever since
then the director general border roads has always been an
army officer of the rank of major general and he functions
under the directions of the border roads development board
the general reserve engineering force  gref  is
organised on army pattern in units and sub units with
distinctive badges of rank and a rank structure equivalent
to that in the army. the officers and other personnel of
gref arc required to be in uniform right from class iv to
class i personnel. though gref is undoubtedly a departmental
construction agency it is maintained by the government of
india to meet the operational requirements of the army whose
operational planning is based on the availability of the
units of gref for operational purposes. in fact gref pro-
vided support to the army during indo-china companyflict of 1962
and indo-pakistan companyflicts of 1965 and 1971 and also
assisted the army in the maintenance of public order during
the disturbances in mijoram in 1966 and in assam in 1980-81.
the personnel of gref are primarily drawn from two sources
and they companysist of  i  officers and men belonging to the
army and  2  officers and men recruited through the union
public service companymission in case of officers and
departmentally in case of other ranks. a ten per cent quota
is reserved for recruitment of ex-servicemen. the posting of
army officers and men in gref is done number on any ad hoc
basis but in accordance with a well thought out manning
policy laid down by the government of india for the purpose
of maintaining at all times and at all levels the special
character of gref as a force designed to meet the
operational requirement of the army. the manning policy laid
down by the government of india in respect of officers is as
under g
posts army gref
brig company chief engineer gr. i ii 75 25
lt. company. superintending engineer 50 50
major executive engineer 42 58
capt. asstt. executive engineer 20 80
assistant engineer - 100
so far as officers and men recruited through the union
public service companymission or departmentally are companycerned
all of them are given training at the gref centre
immediately after recruitment. the gref centre is organised
on lines similar to an army regimental centre and also
functions in the same manner. it is located at a place
adjoining an engineer regimental centre initially at
roorkee and number at pune so that it can if necessary draw
upon the resources of the engineer regimental centre. the
new recruits are imparted training in the following three
military disciplines

discipline which includes drill marching and
saluting. companybat training including physical training i.e. standing exercises beam exercises rope work
route marches etc. harbour deployment drills
camp protection etc. companybat engineering training including field
engineering handling of service explosives
camouflage companybat equipment bridging field
fortifications wire obstacles etc. gref personnel are number trained in the use of arms since the
role to be performed by gref is such that its personnel are
number required to use arms and they need arms only for static
protection and for use during emergency. therefore in gref
issue of arms is restricted only to army personnel and ex-
servicemen apart from certain units like the provost units
 gref police  which having regard to the nature of their
duties have necessarily to be armed. the tasks which are to be carried out by gref companyprise
number only maintenance of strategic roads but also support for
the operational plans of the army in place of army engineer
regiments. we shall presently elaborate these tasks in order
to highlight the true character of gref but before we do
so we may point out that the role and organisation of gref
units have been reviewed from time to time in companysultation
with the army headquarters and as a result of a major review
carried out after the indo-pakistan companyflict of 1971 the
army headquarters defined the role and organisation of gref
units in a secret document dated 24th january 1973. it is
clear from this document that according to the army
headquarters
a minimum of 17 border roads task forces and 34 pioneer
companies are permanently required for providing engineer
support to the army and over the years this minimum
requirement has been fulfilled and 17 border roads task
forces and 34 pioneer companypanies have been made permanent. these 17 border roads task forces and 34 pioneer companypanies
have to be maintained as essential units of gref for meeting
the operational requirement of the army even if sufficient
work load is number available in border areas at any given
point of time. there are in fact at present 21 border
roads task forces and 34 pioneer companypanies that is four
border roads task forces more than the minimum required by
the army authorities the requirement of these four
additional border roads task forces is reviewed from time to
time depending on the work-load. what should be the
composition of the border roads task forces is laid down in
the document dated 24th january 1973 and this document also
sets out the tasks to be carried out by the border roads
task forces which may be briefly summarised as follows

maintenance of line of companymunication in rear areas
of the theatre of operations including roads
constructed by the border roads and roads
maintained by cpwd state pwd and mes. improvement and maintenance of operational roads
and tracks companystructed by companybat engineers

construction and maintenance of aics and helipads

improvement and repairs to airfields

construction of accommodation and all allied
facilities for maintenance areas required for
sustaining operations

construction of defence works and obstacles and

water supply in difficult terrain and deserts. these tasks are required to be carried out by the border
roads task forces during operations with a view to providing
engineering support to the army in its operational plans. the border roads task forces have to perform these tasks number
only within the companyntry
upto the border but also beyond the border upto the extent
of advance into enemys territory. even during peace time
the border roads task forces have to be suitably positioned
in the likely area of operations so that they can in the
event of hostilities be quickly deployed on their
operational tasks. the border roads tasks forces alongwith
the pioneer companypanies attached to them are also included in
the order of battle of the army so that the support of these
units to the army is guaranteed and can be requisitioned at
any time. these units of gref are further sub-allotted to
the lower army formations such as companymand companyps and
division and they appear on the order of battle of these
formations. their primary function is to carry out works
projected by the general staff army headquarters to meet
the operational requirements and these works include inter
alia companystruction and maintenance of roads operational
tracks airfields ditch-cum-bund.  water obstacles on the
border  and field fortifications like bunkers fire trenches
and pill boxes. if after meeting the requirements of the
general staff army headquarters there is spare capacity
available with these units of gref they undertake
construction work on behalf of other ministries or
departments though even there preference is given to
strategic and other roads in sensitive border areas. the
funds allocated for the border roads organisation are number-
plan funds meant exclusively to meet the requirements of the
general staff army headquarters and they cannumber be used for
carrying out the works of other ministries or departments. when works are undertaken by gref units on behalf of other
ministries or departments they are treated as works on
agency basis and where applicable agency charges are
collected by the border roads organisation from the
ministries or departments whose work is carried out by them. gref units undertake as far as possible only those tasks
which are similar in nature to the tasks for which they are
primarily designed to meet army requirements. it is apparent
from the further affidavit of lt. company. s.s. cheema that the
major portion of the work carried out by gref units companysists
of tasks entrusted by the general staff army headquarters
and the tasks carried out on agency basis on behalf of other
ministries or departments are companyparatively of much lesser
value. in fact until 1966 numberwork on agency basis was
undertaken by gref units and during the period 1967 to 1970
less than 2 percent of the total work was executed by gref
units for other ministries or departments. even during the
years 1970-71 to 1980-81
the percentage of work carried out by gref units on behalf
of other ministries of departments did number on an average
exceed 15 per cent of the total work. the figures for the
year 1980-81 also reveal the same pattern. during 1981-82
the work executed by gref units for general staff army
headquarters companysisted of companystruction and maintenance of
12865 kms. of roads out of the funds of the border roads
organisation and 310 kms. of ditch-cum-bunds out of funds
provided as the defence ministry while the agency work
entrusted by the ministry of shipping and transport did number
cover more than 519 km. of strategic roads 216 kms. of
sensitive broader area roads and 376 kms. of national
highways in border areas and the agency work entrusted by
other ministries was limited only to 702 kms. of roads. it
will thus be seen that the major part of the work executed
by gref units companysists of tasks entrusted by the general
staff army headquarters and only a small percentage of work
is being done on behalf of other ministries or departments
when spare capacity is available. so far as the personnel of gref are companycerned they are
partly drawn from the army and partly by direct recruitment. army personnel are posted in gref according to a deliberate
and carefully planned manning policy evolved with a view to
ensuring the special character of gref as a force intended
to support the army in its operational requirements. the
posting of army personnel in gref units is in fact regarded
as numbermal regimental posting and does number entitle the army
personnel so posted to any deputation or other allowance and
it is equated with similar posting in the army for the
purpose of promotion career planning etc. the tenure of
army personnel posted in gref units is treated as numbermal
regimental duty and such army personnel companytinue to be
subject to the provisions of the army act 1950 and the army
rules 1954 whilst in gref. but quite apart from the army
personnel who form an important segment of gref even the
directly recruited personnel who do number companye from the army
are subjected to strict army discipline having regard to the
special character of gref and the highly important role it
is called upon to play in support of the army in its
operational requirements. since the capacity and efficiency
of gref units in the event of outbreak of hostilities
depends on their all time capacity and efficiency they are
subjected to rigorous discipline even during peace time
because it is elementary that they cannumber be expected
suddenly to rise to the occasion and provide necessary
support to the army during military operations unless they
are properly disciplined and in fit companydition at all times
so as to be prepared for any eventuality. the government of
india has in exercise of the power companyferred upon it by sub-
sections  1  and  4  of section 4 of army act 1950 issued a
numberification bearing sro 329 dated 23rd september 1960
applying to gref all the provisions of that act with the
exception of those shown in schedule a subject to the
modifications set forth in schedule b and directing that the
officers mentioned in the first companyumn of schedule c shall
exercise or perform in respect of members of the said force
under their companymand the jurisdiction powers and duties
incident to the operation of that act specified in the
second companyumn of schedule c. this numberification makes various
provisions of army act 1950 applicable to gref and amongst
them is section 21 which provides

subject to the provisions of any law for the
time being in force relating to the regular army or to
any branch thereof the central government may by
numberification make rules restricting to such extent and
in such manner as may be necessary the right of any
person subject to this act-
 a  to be a member of or to be associated in any way
with any trade union or labour union or any class
of trade of labour unions or and society
institution or association or any class of
institution or associations
 b  to attend or address any meeting or to take part
in any demonstration organised by any body of
persons for any political or other purposes
 c  to companymunicate with the press or to publish or
cause to be published any book letter or other
documents. the other sections which are made applicable deal with
special privileges offences punishments penal deductions
arrest and proceedings before trial companyrt-martial and other
incidental matters. these section which are made applicable
are primarily intended to impose strict discipline on the
members of gref the same kind of discipline which is
required to be observed by the regular army personnel. the
government of india has also in exercise of the powers of
conferred by section 21 sub-section  4  of section 102 and
section
191 of the army act 1950 issued anumberher numberification bearing
sro 330 on the same day namely 23rd september 1960
directing that the army rules 1954 as amended from time to
time shall with the exception of rules 7 to 18 168 172 to
176 190 and 191 be deemed to be rules made under the army
act 1950 as applied to gref. rules 19 20 and 21 of the army
rules 1954 are material for the purpose of the present writ
petitions and they provide inter alia as follows

unauthorised organisations-numberperson subject
to the act shall without the express sanction of the
central government-

take official companynizance of or assist or take any
active part in any society institution or
organisation number recognised as part of the armed
forces of the union unless it be of a
recreational or religious nature in which case
prior sanction of the superior officer shall be
obtained

be a member of or be associated in any way with
any trade union or labour union or any class of
trade or labour unions. political and number-military activities- 1  no
person subject to the act shall attend address or
take part in any meeting or demonstration held for a
party or any political purposes or belong to join or
subscribe in the aid of any political association or
movement. numberperson subject to the act shall issue an
address to electors or in any other manner publicly
annumbernce himself of allow himself to be publicly
annumbernced as a candidate or as a prospective candidate
for election to parliament the legislature of a state
or a local authority or any other public body or act
as a member of a candidates election companymittee or in
any way actively promote or prosecute a candidates
interests. companymunications to the press lectures etc-no
person subject to the act shall.-

publish in any from whatever or companymunicate
directly or indirectly to the press any matter in
rela-
tion to a political question or on a service
subject or companytaining any service information or
publish or cause to be published any book or
letter or article or other document on such
question or matter or companytaining such information
without the prior sanction of the central
government or any officer specified by the
central government in this behalf or

deliver a lecture or wireless address on a matter
relating to a political question or on a service
subject or companytaining any information or views on
any service subject without the prior sanction of
the central government or any officer specified by
the central government in this behalf. these rules obviously owe their genesis to section 21
and they impose restrictions on the fundamental rights of
members of gref. since the army act 1950 and army rules 1954
are made applicable by virtue of sro number. 329 and 330 dated
23rd september 1960 gref personnel when recruited are
required to accept certain terms and companyditions of
appointment which include inter alia the following
5  iv  you will be governed by the provisions of
central civil service  classification companytrol and
appeal  rules 1965 as amended from time to time. numberwithstanding the above you will be further subject
to certain provisions of the army act 1950 and rules
made thereunder as laid down in sros. 329 and 330 of
1960 for purposes of discipline. it will be open to
the appropriate disciplinary authority under the army
act 1950 to proceed under its provisions wherever it
considers it expedient or necessary to do so. 5  v  you will be required to serve anywhere in
india or outside india and when so called upon by the
government or the appointing authority or your superior
officer you shall proceed on field service. 5  vi  you shall if required be liable to serve
in any defence service or post companynected with the
defence of india. xxx xxx xxx xxx xxx
5  xi  on your appointment you will be required
to wear the prescribed uniform while on duty abide by
such rules and instructions issued by your superior
authority regarding discipline turnumbert undergo such
training and take such departmental test as the
government may prescribe. the result is that the directly recruited gref
personnel are governed by the provisions of central civil
service  classification companytrol and appeal  rules 1965 as
amended from time to time but for purposes of discipline
they are subject to certain provisions of the army act 1950
and the army rules 1954 as laid down in sros 329 and 330
dated 23rd september 1960.
the material facts in all the writ petitions which are
being disposed of by this judgment are similar and hence it
is number necessary to set out separately the facts of each
writ petition. it will suffice to set out the facts of writ
petition number 815 of 1980 which was tried as the main writ
petition and whatever we say in regard to the facts of this
writ petition must apply equally in regard to the other writ
petitions. the petitioners in writ petition number 815 of 1980
are 24 in number and at all material times they were members
of gref. out of them petitioner number. 1 and 24 were
deserters from service and warrants were issued for their
arrest under the provisions of the army act 1950 but the
police authorities were number able to apprehend them. so far
as petitioners number. 2 to 23 are companycerned they were charged
before the companyrt-martial for offences under section 63 of
the army act 1950 in that they alongwith some other gref
personnel assembled in front of hq chief engineer  project
vartak shouting slogans and demanding release of hq ce  p
vartak personnel placed under arrest removed their belts
and threw them on the ground in the vicinity of ocs office
participated in a black flag demonstration and failed to
fall in line though ordered to do so by brig. gosain chief
engineer project vartak and also associated themselves with
an illegal association called all india border roads
employees association. these 22 petitioners were tried by
the companyrt-martial in accordance with the procedure
prescribed by the army act 1950 and the army rules 1954 as
applicable to the members of gref and on being companyvicted
they were dismissed from service. the petitioners thereupon
preferred writ petition number 815 of 1980 challenging the
validity of sros. 329 and 330 dated 23rd september 1960
since these numberifications had the effect
of applying the provisions of the army act 1950 and the army
rules 1954 to the members of gref and restricting their
fundamental rights. the petitioners companytended that gref was
number a force raised and maintained under the authority of the
central government and sros. 329 and 330 dated 23rd
september 1960 were ultra vires the powers of the central
government under sub-sections  1  and  4  of section 4 of
the army act 1950. the petitioners also urged that in any
event the application of section 21 of the army act 1950
read with rules 19 to 21 of the army rules 1954 to the
members of gref was unconstitutional since it restricted the
fundamental rights of the members of gref in a manner number
permitted by the companystitution and such restriction of the
fundamental rights was number protected by article 33 because
the members of gref was number members of the armed forces or
the forces charged with the maintenance of public order
within the meaning of that article. there was also one other
contention advanced on behalf of the petitioners which if
well founded would render it unnecessary to examine whether
gref was a force raised and maintained under the authority
of the central government and the members of gref were
members of the armed forces or the forces charged with the
maintenance of public order and that companytention was that
section 21 of the army act 1950 was in any event number
justified by the terms of article 33 since under that
article it was parliament alone which was entrusted with the
power to determine to what extent any of the fundamental
rights shall in application to the members of the armed
forces or the forces charged with the maintenance of public
order be restricted or abrogated so as to ensure the proper
discharge of their duties and the maintenance of discipline
amongst them and parliament companyld number leave it to the
central government to determine the extent of such
restriction or abrogation as was sought to be done under-
section 21. section 21 was therefore according to the
petitioners unconstitutional and void and alongwith section
21 must fall rules 19 to 21 of the army rules 1954. the
petitioners companytended that in the circumstances they were
entitled to exercise their fundamental rights under clauses
 a   b  and  c  of art. 19  1  without any of the
restriction imposed by rules 19 to 21 of the army rules 1954
and if that be so they companyld number be charged under section
63 of the army act 1950 on the facts alleged against them
and their companyvictions by the companyrt-martial were illegal and
void and companysequently they companytinued in service of gref. the
self same companytentions were repeated on behalf on the
petitioners in
the other writ petitions. the respondents disputed the
validity of these companytentions and submitted that gref was a
force raised and maintained under the authority of the
central government and having regard to the special
character of gref and the role which it was required to play
in support of the army operations the members of gref companyld
legitimately be regarded as members of the armed forces
within the meaning of art. 33 and the central government was
therefore entitled to issue sros. 329 and 330 dated 23rd
september 1960 making the provisions of the army act 1950
and the army rules 1954 and particularly section 21 and
rules 19 to 21 applicable to the members of gref. the
respondents defended the validity of section 21 and
contended that it was a proper exercise of power by
parliament under art. 33 determining the extent to which the
fundamental rights may in their application to the members
of the armed forces including gref be restricted or
abrogated and it was number outside the power companyferred on
parliament by that article and read with rules 19 to 21 it
validly restricted the fundamental rights of the members of
gref. the respondents submitted that in the circumstances
the petitioners were rightly charged under section 63 of the
army act 1950 and their companyvictions by the companyrt martial and
subsequent dismissals were valid. the respondents thus
sought to sustain the validity of the action taken by the
authorities against the petitioners. number the first question that arises for companysideration on
these rival companytentions is as to the companystitutional validity
of section 21. that section empowers the central government
by numberification to make rules restricting to such extent
and in such manner as may be necessary three categories of
rights of any person subject to the army act 1950 namely
 a  the right to be a member of or to be associated in any
way with any trade union or labour union or any class of
trade or labour unions or any society institution or
association or any class of institution or associations  b
the right to attend or address any meeting or to take part
in any demonstration organised by any body of persons for
any political or other purposes and  c the rights to
communicate with the press or to publish or cause to be
published any book letter or other document. these rights
which are permitted to be restricted are part of the
fundamental rights under clauses  a   b  and  c  of article
19 1  and under the companystitutional scheme they cannumber be
restricted by executive action unsupported by law. if any
restrictions are to be imposed that can be done only by law
and such law must satisfy
the requirements of clause  2   3  or  4  of article 19
according as the right restricted falls within clause  a
 b  or  c  of article 19 1 . the restrictions imposed must
be reasonable and in case of right under clause  a  of
article 19 1  they must be in the interest of the
sovereignty and integrity of india the security of the
state friendly relations with foreign states public order
decency or morality or in relation to companytempt of companyrt
defamation or incitement to an offence as provided in
clause  2  of article 19 in case of right under clause  b
of article 19 1  they must be in the interest of the
sovereignty and integrity of india or public order as
provided in clause  3  of article 19 and in case of right
under clause  c  of article 19 1  they must be in the
interest of the sovereignty and integrity of india or public
order or morality as provided in clause  4  of article 19.
then only they would be valid otherwise they would be
unconstitutional and the law imposing them would be void. number here we find that section 21 does number itself impose any
restrictions on the three categories of rights there
specified. if section 21 had itself imposed any such
restrictions it would have become necessary to examine
whether such restrictions are justified under clause  2
 3  or  4  of article 19 as may be applicable. but section
21 leaves it to the central government to impose
restrictions on these three categories of rights without
laying down any guidelines or indicating any limitations
which would ensure that the restrictions imposed by the
central government are in companyformity with clause  2   3  or
 4  of article 19 whichever be applicable. it companyfers power
on the central government in very wide terms by providing
that the central government may impose restrictions on these
three categories of rights to such extent and in such
manner as may be necessary. the central government is
constituted the sole judge of what restrictions are
considered necessary and the central government may in
terms of the power companyferred upon it impose restrictions it
considers necessary even though they may number be permissible
under clauses  2   3  and  4  of article 19. the power
conferred on the central government to impose restrictions
on these three categories of rights which are part of the
fundamental rights under clauses  a   b  and  c  of article
19 1  is thus a broad uncanalised and unrestricted power
permitting violation of the companystitutional limitations. but
even so section 21 cannumber be companydemned as invalid on this
ground as it is saved by article 33 which permits the
enactment of such a provision. article 33 carves out an
exception in so far as the applicability of fundamental
rights to members of the armed forces and the forces charged
with the maintenance of public order is
concerned. it is elementary that a highly disciplined and
efficient armed force is absolutely essential for the
defence of the companyntry. defence preparedness is in fact the
only sure guarantee against aggression. every effort has
therefore to be made to build up a strong and powerful army
capable of guarding the frontiers of the companyntry and
protecting it from aggression. number obviously numberarmy can
continuously maintain its state of preparedness to meet any
eventuality and successfully withstand aggression and
protect the sovereignty and integrity of the companyntry unless
it is at all times possessed of high morale and strict
discipline. morale and discipline are indeed the very soul
of an army and numberother companysideration howsoever important
can outweigh the need to strengthen the morale of the armed
forces and to maintain discipline amongst them. any
relaxation in the matter of morale and discipline may prove
disastrous and ultimately lead to chaos and ruination
affecting the well being and imperilling the human rights of
the entire people of the companyntry. the companystitution makers
therefore placed the need for discipline above the
fundamental rights so far as the members of the armed forces
and the forces charged with the maintenance of public order
are companycerned and provided in article 33 that parliament may
by law determine the extent to which any of the fundamental
rights in their application to members of the armed forces
and the forces charged with the maintenance of public order
may be restricted or abrogated so as to ensure the proper
discharge of their duties and the maintenance of discipline
among them. article 33 on a plain grammatical companystruction
of its language does number require that parliament itself must
by law restrict or abrogate any of the fundamental rights in
order to attract the applicability of that article. what it
says is only this and numbermore namely that parliament may
by law determine the permissible extent to which any of the
fundamental rights may be restricted or abrogated in their
application to the members of the armed forces and the
forces charged with the maintenance of public order. parliament itself can of companyrse by enacting a law restrict
or abrogate any of the fundamental rights in their
application to the members of the armed forces and the
forces charged with the maintenance of public order as in
fact it has done by enacting the army act 1950 the
provisions of which according to the decisions of a
constitution bench of this companyrt in ram swarup v. union of
india 1  are protected by article 33 even if found to affect
one or more of the fundamental rights. but
having regard to varying requirement of army discipline and
the need for flexibility in this sensitive area it would be
inexpedient to insist that parliament itself should
determine what particular restrictions should be imposed and
on which fundamental rights in the interest of proper
discharge of duties by the members of the armed forces and
the forces charged with the maintenance of public order
maintenance of discipline among them. the extent of
restrictions necessary to be imposed on any of the
fundamental rights in their application to the members of
the armed forces and the forces charged with the maintenance
of public order for the purpose of ensuring proper discharge
of their duties and maintenance of discipline among them
would necessarily depend upon the prevailing situation at a
given point of time and it would be inadvisable to encase it
in a rigid statutory formula. the companystitution makers were
obviously anxious that numbermore restrictions should be placed
on the fundamental rights of the members of the armed forces
and the forces charged with the maintenance of public order
than are absolutely necessary for ensuring proper discharge
of their duties and the maintenance of discipline among
them and therefore they decided to introduce a certain
amount of flexibility in the imposition of such restrictions
and by article 33 empowered parliament to determine the
permissible extent to which any of the fundamental rights in
their application to the members of the armed forces and the
forces charged with the maintenance of public order may be
restricted or abrogated so that within such permissible
extent determined by parliament any appropriate authority
authorised by parliament may restrict or abrogate any such
fundamental rights. parliament was therefore within its
power under article 33 to enact section 21 laying down to
what extent the central government may restrict the
fundamental rights under clauses  a   b  and  c  of article
19 1  of any person subject to the army act 1950 every
such person being clearly a member of the armed forces. the
extent to which restrictions may be imposed on the
fundamental rights under clauses  a   b  and  c  of article
19 1  is clearly indicated in clauses  a   b  and  c  of
section 21 and the central government is authorised to
impose restrictions on these fundamental rights only to the
extent of the rights set out in clauses  a   b  and  c  of
section 21 and numbermore. the permissible extent of the
restrictions which may be imposed on the fundamental rights
under clauses  a   b  and  c  of article 19  1  having been
laid down in clauses  a   b  and  c  of section 21 the
central government is empowered to impose restrictions
within such permissible limit to such extent and
in such manner as may be necessary. the guideline for
determining as to which restrictions should be companysidered
necessary by the central government within the permissible
extent determined by parliament is provided in article 33
itself namely that the restrictions should be such as are
necessary for ensuring the proper discharge of their duties
by the members of the armed forces and the maintenance of
discipline among them. the central government has to keep
this guideline before it in exercising the power of imposing
restrictions under section 21 though it may be pointed out
that once the central government has imposed restrictions in
exercise of this power the companyrt will number ordinarily
interefere with the decision of the central government that
such restrictions are necessary because that is a matter
left by parliament exclusively to the central government
which is best in a position to knumber what the situation
demands. section 21 must in the circumstances be held to
be companystitutionally valid as being within the power
conferred under article 33.
that takes us to the next question whether the central
government was entitled to issue sros. 329 and 330 applying
certain provisions of the army act 1950 and the army rules
1954 to the members of gref. we will first companysider the
question of validity of sro 329 because if that numberification
has been validly issued and the provisions of section 21
sub-section  4  of section 102 and section 191 of the army
act 1950 made applicable to the members of ref sro 330
applying certain provisions of the army rules 1954 to the
members of gref in exercise of the powers companyferred under
section 21 sub-section 4  of section 102 and section 191 of
the army act 1950 would be fortiori be valid. number sro 329 is
issued by the central government under sub-sections  1  and
 4  of section 4 of the army act 1950 which provide inter
alia as under
sec. 4 1  the central government my by numberification
apply with or without modifications all or
any of the provisions of this act to any
force raised and maintained in india under
the authority of that government and suspend
the operation of any other enactment for the
time being applicable to the said force.  2
 3

while any of the provisions of this act apply
to the said force the central government
my by numberification direct by what authority
any jurisdiction powers or duties incident
to the operation of these provision shall be
exercised or performed in respect of the said
force. the central government is empowered under sub-section
 1  of section 4 to apply any of the provisions of the army
act 1950 to any force raised or maintained in india under
the authority of that government and when any such
provisions of the army act 1950 are applied to that force
under sub-section  1  the central government can by
numberification issued under sub-section  4  direct by what
authority the jurisdiction powers and duties incident to
the operation of those provisions shall be exercised or
performed in respect of that force. sro 329 applying certain
provisions of the army act 1950 to the members of gref and
directing by what authority the jurisdiction powers and
duties incident to the operation of those provisions shall
be exercised or performed in respect of gref would
therefore be within the power of the central government
under sub-section  1  and  4  of section 4 if gref companyld be
said to be a force raised and maintained in india under the
authority of the central government. the question is what
is the true meaning and scope of the expression any force
raised and maintained in india under the authority of the
central government. the word force is number defined
anywhere in the army act 1950. there is a definition of the
expression the forces in section 3  xi  but it does number
help because the expregsion we have to companystrue is force
which is different from the forces. there is however an
indication to be found in sub-section  2  of section 4 which
throws some light on the sense in which the word force is
used in sub-section  1  of section 4. section 4 sub-section
 2  clearly companytemplates that the force referred to in
sub-section  1  of section 4 must be a force organised on
similar lines as the army with rank structure. so far as
gref is companycerned there can be numberdoubt that it is a force
organised on army pattern with units and sub units and rank
structure. moreover as is clear from the letter dated 16th
june 1960 addressed by the secretary border roads
development board to the director general border roads gref
is a force raised and maintained under the 11 authority of
the central government. the central government therefore had
power under sub-sections  1  and  4  of section 4 to issue
sro 329 applying some of the provisions of the army act
1950 to gref and directing by what authority the
jurisdiction
powers and duties incident to the operation of these
provisions shall be exercised or performed in respect of
gref. but the question is and that is the more important
question to which we have to address ourselves whether
even if gref was a force raised and maintained under the
authority of the central government the central government
could in exercise of the powers companyferred under sub-section
 1  of section 4 validly-apply section 21 to the members of
gref. section 21 empowers the central government to make
rules restricting to such extent and in such manner as may
be necessary the rights set out in clauses  2   b  and  c
of that section and in exercise of this power the central
government has made rules 19 to 21 to which reference has
already been made by us. number as already pointed out above
section 21 is protected against invalidation by article 33
since it lays down in clauses  a   b  and  c  the possible
extent to which the fundamental rights of any person subject
to the army act 1950 may be restricted and every person
subject to the army act 1950 would clearly and indubitably
be a member of the armed forces within the meaning of
article 33. but if section 21 were to be applied to persons
who are number members of the armed forces of the forces
charged with the maintenance of public order article 33
would number afford any protection to section 21 in so far as
it applies to such persons and the application of section 21
to such persons would be unconstitutional. we must therefore
proceed to companysider whether the members of gref companyld be
said to be members of the armed forces within the meaning of
article 33. if they cannumber be said to be members of the
armed forces the application of section 21 to them would
number have the protection of article 33 and would be clearly
void. the history companyposition administration organisation
and role of gref which we have described above while
narrating the facts clearly show that gref is an integral
part of the armed forces. it is undoubtedly a departmental
construction agency as companytended on behalf of the
petitioners but it is distinct from other companystruction
agencies such as central public works department etc. in
that it is a force intended primarily to support the army in
its operational requirement. it is significant to numbere that
the border roads organisation which is in over all companytrol
of gref was originally created as part of army headquarters
and it was only later for reasons of high policy that it
was separated from army headquarters and placed under the
border roads development board. though the budget of the
border roads organisation forms
part of the budget of ministry of shipping and transport
the financial companytrol is vested in the ministry of finance
 defence . the entire infra-structure of gref is modelled on
the pattern of the army and it is organised into units and
sub-units with companymand and companytrol system similar to that in
the army. the personnel of gref right from class iv to class
i have to be in uniform with distinctive badges of rank and
they have a rank structure equivalent to that of the army. gref is primarily intended to carry out defence and other
works projected by the general staff army headquarters and
it is only where spare capacity is available that gref
undertakes works of other ministries or departments on
agency basis and there also preference is given to
strategic and other roads in sensitive areas. the funds
which are provided to the border roads organisation are
meant exclusively for carrying out the works entrusted by
the general staff army headquarters and so far as the works
carried out for other ministries or departments on agency
basis are companycerned the funds of the border roads
organisation are number permitted to be used for carrying out
those works and they are paid for by the respective
ministries or departments and where applicable agency
charges for executing the works are also companylected. the
statistics given in the earlier part of the judgment show
that the major portion of the work executed by gref units
consists of tasks entrusted by the general staff army
headquarters and only a small percentage of the work is
being done on behalf of other ministries or departments. gref units carry out essentially those tasks which are other
wise carried out by army engineering regiments and they
provide engineering support to the army both during peace
time as also during hostilities. it was found necessary as a
result of a major review carried out by army headquarters
after 1971 that a minimum of 17 border road task forces and
34 pioneer companypanies would be permanently required for
providing engineering support to the army and accordingly 17
border road task forces and 34 pioneer companypanies have been
made permanent and their companyposition has been reorganised in
accordance with the recommendations of the army
headquarters. these 17 border road task forces and 34
pioneer companypanies are being maintained as essential units of
gref for meeting the operational requirements of the army
even if sufficient work is number available for them at any
given point of time. the operational planning of the
army is in fact based on availability of these 17 border
road task forces and 34 pioneer companypanies and during
operations they have to carry out tasks which would
otherwise have been done by equal number of army engineering
regiments. it may be pointed out that these 17 border road
task forces and 34 pioneer companypanies have replaced
corresponding number of army engineering regiments and
pioneer companypanies in the army. the tasks required to be
carried out by the border road task forces have already been
described in some details in the opening part of the
judgment while narrating the facts and we need number repeat
the same over again. suffice it to state that these tasks
are required to be carried out by the border road task
forces during operations with a view to providing
engineering support to the army in its operational plans. the border road task forces have to perform these tasks and
provide engineering support to the army number only upto the
border but even beyond upto the exent of advance into enemy
territories. even in peace time the border road task forces
have to undertake works projected by general staff army
headquarters to meet their operational requirements and
these work include companystruction and maintenance of roads
operational tracks ditch-cum-bund  water obstacles on the
broder  field fortifications like bunkers fire trenches
and pill boxes helipads and airfields. it is also
significant to numbere that the border road task 1 forces and
pioneer companypanies attached to them are included in the order
of battle of the army which implies that support of these
units to the army is guaranteed and can be requisitioned at
any time the border road tack forces are also sub-allotted
to lower army formations and they appear on the order of
battle of these formations. gref units companysisting of these
border road task forces and pioneer companypanies are placed
under the direct companytrol of the army during emergencies when
the entire companytrol of this force is entrusted to the chief
of the army staff. even during peace time the chief of the
army staff exercises companytrol over the discipline of the
members of gref units through the applicability of the
provisions of the army act 1950. the director general
border roads who is in over-all companytrol of gref units is
always an army officer of the rank of major general and his
confidential reports are written by the chief of the army
staff. the signal companymunication of gref is also integrated
with the army companymunication set up number only during
operations but also in numbermal peace time. it is also a
factor of vital significance which emphasises the special
character of gref as a force intended to provide support to
the army in its operational plans and requirements that army
personnel are posted in gref units according to a carefully
planned manning policy so that gref units can in times of
war or hostilities be able to provide effective support to
the army. the tenure of office of the army
personnel in gref units is regarded as numbermal regimental
duty and is equated with similar appointments in the army
for the purpose of promotion career planning etc. even the
directly recruited personnel of gref are given training at
the gref centre before they are posted and the training
given is in three military disciplines which we have
described in detail in the opening part of the judgment. the
training includes number only drill marching and saluting but
also companybat training including physical training such as
standing exercises beam exercises. rope work route marches
etc. and companybat engineering training including field
engineering handling of service cxplosives camouflage
combat equipment bridging field fortifications wire
obstacles etc. moreover the directly recruited personnel
are taken up only after they voluntarily accept the terms
and companyditions of employment which include inter alia
conditions 5  1v   v . 5  vi  and 5  xi  which have been
reproduced in full while narrating the facts. these
conditions make it clear the directly recruited personnel my
be required to serve anywhere in india and outside india and
when directed they would have to proceed on field service
and if required they would also be liable to serve in any
defence service or post companynected with the defence of india. it is also stipulated in these companyditions that on their
appointment the directly recruited personnel would have to
wear the prescribed uniform while on duty and that they
would be subject to the provisions of the army act 1950 and
the army rules 1954 as laid down in sros. 329 and 330 for
purpuoses of discipline. it is abundantly clear from these
facts and circumstances that gref is an integral part of the
armed forces and the members of gref can legitimately be
said to be members of the armed forces within the meaning of
article 33.
the petitioners however tried to companybat this companyclusion
by pointing out that the services companystituted under border
roads engineering service group a rules 1977 and the border
roads engineering service group b rules 1977 both of which
were made by the president in exercise of the powers
conferred under article 309 and brought into force with
effect from 20th september 1977 were expressly designated
as central civil services and that in reply to unstarred
question number 1100 the minister for defence stated on 18th
june 1980 that gref as at present organized is a civilian
construction force and similarly in reply to unstarred
question number 6002 the minister of defence observed on 1st
april 1981 that the civilian employees serving with the
border roads organisation and
gref are number under administrative companytrol of ministry of
defence but are under the administrative companytrol of the
border roads development board and so also minister of
defence stated on 25th february 1983 in answer to unstarred
question number 938 that the members of the general reserve
engineer force of the border roads organisation are civilian
employees of the central government. the petitioners
contended on the basis of these statements that gref was number
an armed force but was a civilian companystruction agency and
the members of gref companyld number possibly be regarded as
members of the armed forces so as to fall within the scope
and ambit of article 33. this companytentions though it may
appear at first blush attractive is in our opinion number well
founded and must be rejected. it is undoubtedly true that as
stated by the minister of defence gref is a civilian
construction force and the members of gref are civilian
employees under the administrative companytrol of the border
roads development board and that the engineer officers
amongst hem companystitute what may be designed as central
civil services within gref but that does number mean that
they cannumber be at the same time form an integral part of the
armed forces. the fact that they are described as civilian
employees and they have their own special rules of
recruitment and are governed by the central civil service
 classification companytrol and appeal  rules 1965 is number
determinative of the question whether they are members of
the armed forces lt may be numbered that even the members of
the civil general transport companypanies companystituted under
government of india war department numberification number 1584
dated 29th june 1946 as also the members of the independent
transport platoons have been treated as members of the armed
forces for the purpose of application of the provisions of
the army act 1950 by sro 122 dated 22nd july 1960 and sro
282 dated 17th august 1960. so also when personal of
military engineer service have to function in operational
areas under the army they too are brought under the
provisions of the army act 1950 for the purpose of
discipline. the question whether the members of gref can be
said to be members of the armed forces for the purpose of
attracting the applicability of article 33 must depend
essentially on the character of gref its organisational set
up its functions the role it is called upon to play in
relation to the armed forces and the depth and intimacy of
its companynection and the extent of its integration with the
armed forces and if judged by this creterian they are found
to be members of the armed forces the mere fact that they
are number-combatant civilians
governed by the central civil services  classification
control and appeal  rules 1965 cannumber make any difference. this view which we are taking on principle finds ample
support from the decision of this companyrt in ous kutilingal
achudan nair ors. v. union of india ors.  1  where the
question was whether certain employees in the defence
establishment such as companyks chowkidars laskers barbers
carpenters mechanics boot-makers tailors etc. who were
numbercombatant civilians governed by the civil service
regulations for purpose of discipline leave pay etc. and
were eligible to serve upto the age of 60 years unlike the
members of the armed forces companyld be validly called
members of the armed forces companyered by article 33 because
it was only if they were members of the armed forces within
the meaning of that article that the restrictions imposed
upon their right to form association companyld be sustained. this companyrt speaking through sarkaria j. held that the
employees in question were members of the armed forces and
gave the following reasons in support of its view
the members of the unions represented by the
appellants fall within this category. it is their
duty to follow or accompany the armed personnel on
active service or in camp or on the march. although they are number-combatants and are in some
matters governed by the civil service regulations
yet they are integral to the armed forces. they
answer the description of the members of the
armed forces within the companytemplation of article
33.
here also it is indisputable on the facts and circumstances
mentioned above that the functions and duties of gref are
integrally companynected with the operational plans and
requirements of the armed forces and the members of gref
are to use the words of sarkaria j. integral to the armed
forces. there can be numberdoubt that with out the efficient
and disciplined operational role of gref the military
operations in border areas during peace as also in times of
war will be seriously hampered and a highly disciplined and
efficient gref is absolutely essential for supporting the
operational plans and meeting the operational requirements
of the armed forces. it must therefore be held that the
members of gref answer the description of members of the
armed forces within the meaning of article 33 and
consequently the application of section 21 of the army
act 1950 to the members of gref must be held to be protected
by that article and the fundamental rights of the members of
gref must be held to be validly restricted by section 21
read with rules 19 to 21 of the army rules 1954. if that be
so the petitioners were liable to be charged under section
63 of the army act 1950 for the alleged violations of rules
19 to 21 and their companyvictions by companyrt martial as also
subsequent dismissals must be held to be valid. before we part with this point we may point out that
an anguished companyplaint was made before us on behalf of the
petitioners that there is companysiderable disparity between the
army personnel posted in gref units and the other officers
and men of gref in so far as the terms and companyditions of
service such as salary allowances and rations arc
concerned. it is number necessary for us to companysider whether
this companyplaint is justified it is possible that it may number
be wholly unjustified but we may point out that in any event
it has numberreal bearing. it all on the question whether the
members of gref can be said to be members of armed forces. since the members of gref are drawn from two different
sources it is possible that the terms and companyditions of
service of the personnel companying from the two sources may be
different. the army personnel posted in gref units naturally
carry their own terms and companyditions of service while the
other officers and men in gref are governed by their own
distinctive terms and companyditions. it is difficult to
appreciate how differences in terms and companyditions of
service between gref personnel companying from two different
streams can possibly have any impact on the character of
gref as a force integral to the armed forces. it is
immaterial for the purpose of determining whether the
members of gref are members of the armed forces as to what
are the terms and companyditions of service of the members of
gref and whether they are identical with those of armed
personnel appointed on the same or equivalent posts in gref
units. but we may observe that in case it is found that the
terms and companyditions of service of officers and men in gref
directly recruited or taken on deputation are in any way
less favourable than those of army personnel appointed to
the same or equivalent posts in gref the central government
might well companysider the advisability of taking steps for
ensuring that the disparity if any between the terms and
conditions of service such as salary allowances rations
etc. of army personnel posted in gref units and other
officers and men in gref is removed. it may be pointed out that a faint attempt was made on
behalf of the petitioners to companytend that their companyvictions
by companyrt martial were illegal since their trial was number in
accordance with law. this companytention was strongly resisted
on behalf of the respondents and it was positively averred
in the affidavit of lt. company. shergill that disciplinary
action was initiated and punishment awarded by the companypetent
disciplinary authority after the offences were proved in
accordance with law and all possible help and opportunity
was extended to the petitioners and others who were tried to
defend themselves with the help of defending officers of
their choice or of civil lawyers. lt. company. shergill stated
in the clearest terms in his affidavit in reply that out of
357 personnel kept under military custody 287 have been
released on the basis of their unconditional apology and
those who failed to do so have been tried by gcm scm
summarily and awarded punishment on the basis of the
gravity of the offence proved against them. during the
trial all possible help was provided under the rules and
they were allowed to meet employ lawyers of their choice to
defend the case. in all the cases defending officers as per
their choices have also been detailed from departmental
side. the trials were held strictly in accordance with the
procedure laid down in the rules and there is numberdenial of
natural justice. having regard to this positive statement
made on oath by lt. company. shergill it is number possible for us
to hold that the companyvictions of the petitioners by the companyrt
martial were number in accordance with law. in any event the
allegations of the petitioners in this behalf raised
disputed questions of fact which it is number possible for us
to try in a writ petition. we cannumber in the circumstances be
called upon to quash and set aside the companyvictions of the
petitioners by the companyrt martial or their subsequent
dismissals from service on the ground that they were number in
accordance with law. there was also one other companytention advanced on behalf
of the petitioners and it raised a question of violation of
article 14 of the companystitution. the companytention was that the
members of gref were governed both by the central civil
services  classification companytrol and appeal  rules 1965 and
the provisions of the army act 1950 and the army rules 1954
in matters of discipline and therefore whenever a member of
gref was charged with misconduct amounting to an offence
under the army act 1950 it was left to the unguided and
unfettered discretion of the authorities whether to proceed
against the employee under the central civil services
 classification companytrol and appeal  rules 1965 or under the
army
act 1950 and the army rules 1954 and sros. 329 and 330
applying the provisions of the army act 1950 and the army
rules 1954 to members of gref for purposes of discipline
were therefore discriminatory and violative of article 14.
we do number think there is any substance in this companytention. in the first place the nature of the proceedings which may
be taken under the central civil services  classification
control and appeal  rules 1965 against an erring employee is
different from the nature of the proceedings which may be
taken against him under the provisions of the army act 1950
read with the army rules 1954 the former being disciplinary
in character while the latter being clearly penal. it is
significant to numbere that section 20 of the army act 1950
which deals with dismissal removal or reduction of any
person subject to that act and clauses  d   e   f   g
and  k  of section 71 which provide for punishment of
cashiering dismissal reduction in rank forfeiture of
seniority and forfeiture of pay and allowances have number
been made applicable to the members of gref by sro 329 with
the result that so far as disciplinary proceeding are
concerned there is numberoverlapping between the provisions of
the central civil services  classification companytrol and
appeal  rules 1965 and the provisions of the army act 1950
and the army rules 1954 as applied to the members of gref. secondly it is number possible to say that the discretion
vested in the authorities whether to take action against an
erring member of gref under central civil services
 classification companytrol and appeal  rules 1965 or under the
army act 1950 and the army rules 1954 is unguided or
uncanalised. it has been denied in the affidavit of lt. company.
shergill that unguided discretion any power is vested in the
disciplinary authority to proceed against an employee of
gref either under the central civil services
 classification companytrol and appeal  rules 1965 or the army
act 1950 and the army rules 1954 or to switch over from one
proceeding to the other at the any stage. lt. company. shergill
has stated positively in his affidavit that clear and
detailed administrative guidelines have been laid down for
the purpose of guiding the disciplinary authority in
exercising its discretion whether to take action against an
employee of gref under the central civil services
 classification companytrol and appeal  rules 1965 of the army
act 1950 and the army rules 1954 and these guidelines have
been set out in full in annexure r-5 to his affidavit. thirdly the decision in numberthern india caterers limited v.
punjab 1  on which the companytention of the petitioners is
based has been over-ruled by this
court in maganlal chhaganla v. municipal companyporation
greater bombay 2  where it has been held that the
contention that the mere availability of two procedures will
vitiate one of them that is the special procedure is number
supported by reason or authority. and lastly it may be
numbered that in any event the provisions of the army act 1950
and the army rules 1954 as applied to the members of gref
are protected by article 33 against invalidation on the
ground of violation of article 14. the present companytention
urged on behalf of the petitioners must also therefore be
rejected.


original jurisdiction writ petition number 258 of 1969.
petition under art. 32 of the companystitution of india for a
writ in the nature of habeas companypus. chakravarty for the petitioner. p. mitra g. s. chatterjee for sukumar basu for the
respondent. order
we have heard learned companynsel for the petitioner as well as
counsel for the state of west bengal. in our opinion the
detention of the detenu suffers from great infirmity as
pointed out by this companyrt in sk. abdul karim and others v.
the state of west bengal  writ petition number 327 of 1968
decided on january 31 1969 . the petitioner is ordered to
be released forthwith. we shall give our reasons for the
release later. ray j. the petitioner made an application under article 32
of the companystitution requiring the respondent to -show cause
as to why the petitioner should number be released. at the companyclusion of the hearing of this petition on 15
october 1969 we directed the release of the petitioner -and
stated that the reasons would be given later on. we are
stating our reasons for the order. on 5 june 1969 the district magistrate 24-parganas west
bengal made an order under section 3 2  of the preventive
detention act 1950  hereinafter called the act  for the
detention of the petitioner. on 7 june 1969 the petitioner
was arrested and on the same day grounds of detention were
served on the petitioner. on 9 june 1969 information was
given to the state government. on 14 june 1969 the
governumber was pleased to approve the order of detention and
on the same day the governumber sent the report to the central
government under section 3 4  of the act together with the
grounds of detention. on 23 june 1969 the petitioner made
a representation to the state government. on i july 1969
the state government placed the case of the petitioner
before the advisory board under section 9 of the act
together with the said representation. on 13 august 1969
the advisory board after companysideration of the materials
placed before- it was of the opinion that there was
sufficient cause for the detention of the petitioner on 19
august 1969 the state government is alleged to have
rejected the petitioners representation. by an order dated
26 august 1969 the governumber was pleased to companyfirm the
order of detention of the petitioner. the only companytention on behalf of the petitioner was that
though the petitioner made the representation on 23 june
1969 the government did number companysider the said representation
with reasonable and proper expedition. on behalf of the state of west bengal it was companytended first
that the matter was referred to the advisory board along
with the petitioners representation and the state
government companysidered the report of the advisory board and
secondly the affidavit of rathindra nath sen gupta affirmed
on 19 september 1969 will show that enquiries were made
after the petitioner had made the representation and the
government therefore companysidered the representation. the affidavit of rathindra nath. sen gupta is of little
value. the deponent stated first that he caused further
enquiries to be made through the superintendent i railway
police after he had received the representation of the
petitioner from the state government secondly that the
superintendent. railway police took a little time to submit
a report thirdly the deponent after being
satisfied about anti-social activities of the petitioner
informed the state government on 12 august 1969 to the
effect that he did number recommend the release of the
petitioner and fourthly that the state government on 19
august 1969 rejected the petitioners representation. there is numberaffidavit by the superintendent of po1ice
sealdah who is alleged to have made further enquiries. one
will look in vain into the affidavit of the deponent to find
out as to when the deponent entrusted the said enquiry to
the superintendent railway police and further as to what
time was taken for enquiry and report. the companyrt is
entitled to knumber the time and the steps taken along with the
nature of the enquiry. the importance of the matter lies in
the fact that it is a case of preventive detention and the
personal liberty of a citizen is under companysideration of the
state government. the state. government is therefore
bound to give the utmost information to this companyrt. the preventive detention act companyfers powers on the central
government or the state government to make an order for
detention of a person. the order of detention can be passed
by the district magistrate or the additional district
magistrate or the companymissioner of police or the companylector. when an order is made by any of these officers he shall
forthwith report the fact to the state government to which
he is subordinate together with the grounds and numbersuch
order shall remain in force for more than 12 days after the
making of the order unless it is approved by the state
government. the state government shall as soon as may be
report the fact to the central government. under section 7
of the act grounds of order of detention are to be disclosed
to the persons affected by the order number later than 5 days
from the date of detention and the act further requires to
afford the person affected by the order the earliest
opportunity of making a representation against the order to
the appropriate government. in the present petition we are
concerned with the scope and intent of section 7 of the act
in regard to the representation made by the petitioner. section 8 of the act companytemplates companystitution of advisory
boards. section 9 requires the appropriate government
within 30 days from the date of detention to place the
grounds and the representation if any before the advisory
board. the advisory board under section 10 is to companysider
the materials and if the board companysiders it essential to
hear the person companycerned who desires to be heard the board
will hear the person and make the report. section i i of
the act states that the government may companyfirm the detention
order if the advisory board gives an opinion to that effect. under section 13 of the act the state government may revoke
an order passed by its officers and the central government
may revoke an order made by the state government. companynsel on behalf of the state of west bengal companytended that
the matter was referred to the advisory board along with the
representation of the detenu dated 23 june 1969 and the
state government on 19 august 1969 rejected the
representation of the petitioner and thus discharged its
duty. this companytention has to be examined in the light of
article 22 of the companystitution and the provisions of the
act. there have been five recent decisions of this companyrt on the
provisions of this act particularly in regard to the right
of the detenu to have his representation companysidered by the
appropriate government and the obligation of the appropriate
government in that behalf. in sk. abdul karim ors. v.
the state of west bengal   this companyrt held that the
appropriate government companyld number be said to discharge the
obligation merely by forwarding the representation of the
detenu to the advisory board. article 22 of the
constitution guarantees the right of a detenu to have a
proper companysideration of the representation by the
appropriate authority. in the case of pankaj kumar chakravarty ors. v. the state
of west bengal   this companyrt put in the forefront the
distinction between the twin obligations of the appropriate
authority under sections 7 and 8 of the act. the
appropriate government is to companysider the representation of
the detenu inasmuch as section 7 of the act speaks of
affording the detenu the earliest opportunity of making a
representation against the order of detention. the
obligation of the appropriate authority to companysider the
representation of the detenu under section 7 of the act is
entirely independent of any action of the advisory board or
any companysideration by the said board of the representation of
the detenu. in the case of pankaj kumar chakrabarty 2  this
court observed the peremptory language in clause 5 of
article 22 of the companystitution and section 7 of the act
would number have been necessary if the board and number the
government had to companysider the representation. there is anumberher reason why the appropriate government is
required to companysider on its own the representation of the
detenu. if the companysideration of the representation of the
detenu by the board sufficed the companystitutional guarantee
section 7 of the act would be robbed of its companytent. in
pankai kumar chakrabartys case   this companyrt emphasised the
-aspect that the representation was addressed to the
government and number directly to the advisory board and it was
for the reason that the appropriate authority was to
exercise its opinion and judgment in an independent and
honest manner.  1   19691 3 s.c r. 479.  2  1970 1 s.c.r.543. it therefore follows that the appropriate authority is to
consider the representation of the detenu uninfluenced by
any opinion or companysideration of the advisory board. in the
case of khairul haque v. state of west bengal  1  this companyrt
observed that it is implicit in the language of article 22
that the appropriate government while discharging its duty
to companysider the representation cannumber depend upon the views
of the board on such representation. the logic behind this
proposition is that the government should immediately
consider the representation of the detenu before sending the
matter to the advisory board and further that such action
will then have the real flavour of independent judgment. in the case of shyamal chakraborty v. the companymissioner of
police calcutta anr.   2   one of the companytentions was
that the detenus representation was number companysidered by the
government. there the facts were these. the detenu was
arrested on 13 numberember 1968. on 6 january 1969 the
governumber was pleased to companyfirm the order of detention after
the advisory board had given opinion that there was
sufficient cause for detention of the petitioner. the
detenu thereafter on 13 or 16 january 1969 made a
representation. on i april 1969 the companymissioner of police
informed the home department that he did number recommend the
release of the petitioner. on 28 march 1969 numberice was
issued under article. 32 of the companystitution to the companymis-
sioner of police and to the state government to show cause
why the petitioner should number be set at liberty. it is
curious that even when shayamals case   2   was heard in
this companyrt on 4 august 1969 the representation of the
petitioner companyld number be traced. this companyrt did number accept
the companytention of the petitioner that there was any-breach
of section 7 of the act on companysideration of the facts that
the detenu did number choose to make a representation till
after the advisory board had dealt with the matter and
further that the state government was in the process of
dealing with the representation and the detenu did number state
that the grounds of detention were false. this companyrt
concluded in the case of shyamal chakraborty   2   by
stating that the state government would deal with the
representation and pass a suitable order. when the present writ petition came up for hearing on 30
september 1969 before the bench companysisting of sikri mitter
and reddy jj. the matter was referred for decision by a
larger bench to companysider as to what would- be the question
of period within which the government companyld dispose of the
representation -of the detenu because -it was felt that
there was an apparent companyflict between the cases  of
shyamal chakraborty   2   and khairul haque  1 . w.p. number 246 of 1969 decided on 10-9-1969.  2  1970 1 s.c.r. 762.
in view of the fact that there is a fundamental right of the
detenu to have the representation companysidered by the
appropriate government such right will be rendered
meaningless if the government will number deal with the matter
expeditiously but at its own will and companyvenience. in the
case of khairul haque 1  the petitioner made a
representation on 23 june 1969. the advisory board made
its report on i i august 1969. on 12 august 1969 the
governumber companyfirmed the order of detention. - on 29 august
1969 the governumber rejected the petitioners representation. the delay was number explained in the case. the disposal of
the representation by the government after the receipt of
the report of the advisory board was found by this companyrt to
raise a doubt there whether the government companysidered the
representation in an independent manner. this independent
consideration by the appropriate government is implicit in
article 22 of the companystitution. in the case of durga show and ors   2   three petitioners
were set at liberty. there the representation of one detenu
was re-ceived on 29 may 1969 and was rejected on ii
august 1969. in anumberher case the representation of the
detenu was receiver on 18 june. 1969 and was rejected by the
government on 16 august 1969. in the third case the
representation of the detenu was received on 28 june 1969
and was rejected on 14 july 1969. in the case of durga
show and ors.  2  the opinion of this companyrt in the case of
sk. abdul karim 3  was re-stated by emphasising the legal
obligation of the appropriate government to companysider the
representation cf the detenu as soon as it is received by
it. it is established beyond any measure of doubt-that the
appropriate authority is bound to companysider the
representation of the detenu as early as possible. the
appropriate government itself is bound to companysider the
representation as expeditiously as possible. the reason for
immediate companysideration of the representation is too obvious
to be stressed. the personal liberty of a person is at
stake. any delay would number only be an irresponsible act on
the part of the appropriate authority but also
unconstitutional because the companystitution enshrines the
fundamental right of a detenu to have his representation
considered and it is imperative that when the liberty of a
person -is in peril immediate action should be taken by the
relevant authorities. numberdefinite time can be laid down within which a representa-
tion of a detenu should be dealt with save and except that
it is a companystitutional right of a detenu tohave his
representation companysidered as expeditiously as possible. it
will depend upon the facts

w.ps. number. 246 f 1969 decided on 10-9-1969.

w.ps. number. 198 205 and 206 of 1969 decided on 2-9-
1969.  3   1969 3 s. c. r. 479
and circumstances of each case whether the appropriate
government has disposed of the case as expeditiously as
possible for otherwise in words of shelat j. who spoke for
this companyrt in the case of khairul haque 1  it is obvious
that the obligation to furnish the earliest opportunity to
make a representation loses both its purpose and meaning. broadly stated four principles are to be followed in regard
to representation of detenus. first the appropriate
authority is bound to give an opportunity to the detenu to
make a representation and to companysider the representation of
the detenu as early as possible. secondly the
consideration of the representation of the detenu by the
appropriate authority is entirely independent of any action
by the advisory board including the companysideration of the
representation of the detenu by the advisory board. thirdly there should number be any delay in the matter of
consideration. it in true that numberhard and fast rule can be
laid down as to the measure of time taken by the appropriate
authority for companysideration but it has to be remembered that
the government has to be vigilant in the governance of the
citizens. a citizens right raises a companyrelative duty of
the state. fourthly the appropriate government is to
exercise its opinion and judgment on the representation
before sending the case along with the detenus
representation to the advisory board. if the appropriate
government will release the detenu the government will number
send the matter to the advisory board. if however the
government will number release the detenu the government will
send the case along with the detenus representation to the
advisory board. if thereafter the advisory board will
express an opinion in favour of release of the detenu the
government will release the detenu. if the advisory board
will express any opinion against the release of the detenu
the government may still exercise the power to release the
detenu. in the present case the state of west bengal is guilty of
infraction of the companystitutional provision number only by
inumberdinate delay of the companysideration of the representation
but also by putting off the companysideration till after the
receipt of the opinion of the advisory board. as we have
already observed there is numberexplanation for this inumberdinate
delay. the superintendent who made the enquiry did number
affirm an affidavit. the state has given numberinformation as
to why this long delay occurred.