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It is very common knowledge that arbitrary Executive Action can be thwarted using Fundamental Rights as a shield. But what if some of these Fundamental Rights are not available to you? What will be your shield then? What if some Executive Action like Arrest, Demolition of your Home without Notice etc. is taken against you, though you were always in the right. At these times there is a different remedy available to you which, though is less heard, will be able to protect you. That remedy is proving that the said Executive Action was tainted with Mala Fides.
Further it is very important to engage an able Advocate who knows what kind of questions will be asked in a Court of Law when he takes his Client’s case there. Hence he prepares his case in such a manner that pertinent questions are automatically answered and the relief which he seeks for his Client becomes a reality. One such case highlighting such a situation is G. Sadanandan v. State of Kerala & Anr. (Writ Petition (Civil) No. 136 of 1965) which we will dissect in the present discussion.
In the instant case G. Sadanandan (hereinafter referred to as the Petitioner) was a Wholesaler in Kerosene Oil, which activity though did not require any license at the relevant time but due to the promulgation of the Kerala Kerosene Control Order, 1965 it became mandatory to acquire a license post 24th October 1965. Primarily the Control Orders are promulgated to manage the supply and demand of some essential commodities like medicines, cotton, kerosene etc. (So post 24 October, 1965 only a person having due license to sell Kerosene can continue the said activity).
In the year 1965 Petitioner’s shops were continuously raided on one pretext or another. So on one occasion the shop was raided on the ground that the board outside the shop showed stock as “Nil” while it was alleged by the Governmental officers that the Petitioner had kerosene tins, which could be sold to the Public. On another occasion Petitioner’s shop was raided allegedly on the ground of tampering with Kerosene cans. Though the most interesting fact is that all these raids happened before 24th October, 1965 i.e. when acquiring license for selling Kerosene was not mandatory. After these raids the Petitioner got arrested by the Police under Rule 30 (1) (b) of the Defence of India Rules, 1962. It is a common knowledge that these Rules were made to deal with the special circumstances cropping up due to the Proclamation of Emergency. Though the Petitioner got bail, but he was again arrested by the Police on 21st October, 1965. Here it is important to see that the Petitioner’s wife saved the day by engaging an Advocate who promptly filed a Writ Petition on the very next day i.e. 22nd October. Though on knowing that the Petitioner was arrested under Preventive Detention (i.e. arrest without trial) a Writ Petition was filed under Article 32 of the Constitution of India directly in the Supreme Court of India for a Writ of Habeas Corpus, on grounds of mala fides. It was contended that on both the raids one DSP (Civil Supplies) was present and the aim of these raids and consequent detention ( read Jail time) was to eliminate the Petitioner from the Kerosene selling business so that the kin of the DSP could be benefitted, as they are in the same business.
Before referring to the judgment delivered by the Hon’ble Apex Court one should see the scope of relevant laws which gives some right to you against such arrest. It is common knowledge that all democratic countries give their citizens some Fundamental Rights which are essential for his/her dignified existence. So if a person gets arrested illegally he can approach the appropriate High Court or even Supreme Court to set aside the order of arrest. Similarly if the Legislature makes some laws or Executive makes any rule (like Defence of India Rules, 1962) which don’t pass constitutional muster they can also be challenged on the touchstone of the Fundamental Rights like Article 14.
Though I must mention that the Emergency, when proclaimed, takes some of these rights away from us. So, effective position during existence of Emergency becomes this – Even when a law or rule which has been made during Emergency or is applicable during Emergency, takes away your rights under Article 19 (1) (which includes inter alia Freedom of Speech and Expression) it cannot be set aside on this ground alone. Though considerations would be entirely different when these laws are made during normal times, like today, and they will be liable to be set aside being contradictory to Article 19.
Applying the abovementioned formula the remedies left with you against the Preventive Detention that too during Emergency boils down either to claim mala fides on the part of the authorities arresting you or non-following of the procedure by the said authorities for instance non application of mind.
But to prove mala fides is in itself an uphill task. It’s easier to challenge a law or rule on the yardstick of contravention to the Constitutional Rights. But to prove an action being mala fides, all the evidence must be carefully sieved in order to prove such mal intention or illegal act. But fortunately the Petitioner’s Advocate was aware about this and made categorical statements in his Writ Petition in this regard. One of these averments was that on both the occasions when the raid was conducted the above-mentioned DSP was present. This averment was not denied by the Respondent. Hence this raised a suspicion in Court’s mind as to why there is a hesitation in denying such a fact based contention. Further the Petitioner contended that as he is not a license holder under Kerala Kerosene Control Order, 1965 he cannot sell Kerosene. Therefore there is no threat of him causing any shortfall of Kerosene and hence there is no ground of keeping the Petitioner in custody.
But the most catastrophic mistake which the Respondent made was this. If a person is to be detained under the provisions pertaining to Preventive Detention, the Competent Authority arresting him has to apply its mind before sending the said person to Jail. Now for applying its mind there must be some material before the Competent Authority on the basis of which the person should be sent to Jail. Like if a person is to be arrested for causing public disorder there must be some report by police officials (or may be the concerned Home Ministry) which claims such apprehension that too on reasonable grounds like person has been a History Sheeter. Here the Respondent never placed any such material before the Court. This tilted the scale in favour of the Petitioner decisively.
Cumulatively all the above mentioned factors resulted in the detention of the Petitioner being held to be invalid and he was released from Jail.
Therefore through the above discussion you saw a curious case where though the Fundamental Rights could not come to save the citizen (as there was Emergency) but the Doctrine of Mala Fides did so before it was too late in the day. The above discussion also highlights the importance of engaging an able Advocate who knows his craft well and knows on which grounds the petition should be filed. Imagine if the Petitioner’s Advocate rather than contending mala fides has taken the ground of breach of Constitutional Rights, then the result must have been something else!
Parveen Semwal
Advocate, Delhi High Court and Supreme Court of India
Thanks for providing insight on this issue sir