Holding

Cases involving detention under the National Security Act that raise questions of national security and large public interest must be heard by a larger bench of at least seven Supreme Court judges.

Summary

The petitioners, members of the Sikh community, challenged their detention under the National Security Act, 1980, by filing writ petitions under Article 32 of the Constitution. Justice Venkataramiah observed that these matters were not ordinary criminal cases but involved serious questions of national security and the personal liberty of a sizable community. He emphasized that such extraordinary cases require the highest judicial talent and should not be dealt with by a single judge. Accordingly, he held that the cases should be heard by a larger bench of at least seven judges to ensure proper deliberation and to aid in restoring peace. The Court also suggested that bail could be considered for repentant detainees and that the judiciary might recommend indemnity legislation, but ultimately referred the matters to a larger bench for further hearing.

Issues considered

Whether a writ petition under Article 32 can be entertained against detention under the National Security Act, 1980.
Whether a single judge of the Supreme Court is competent to hear cases involving national security and large public interest.
Whether bail can be granted to detainees under the National Security Act in such circumstances.
Whether the Supreme Court can recommend legislative measures such as an indemnity act in the context of national security detentions.

Legislation cited

Constitution of Indias. Article 32
National Security Act, 1980s. Section 3
Supreme Court Rules, 1966s. Order II rule 6, s. Order VII rule 4(5)

Subjects

National Security Actdetentionwrit petitionArticle 32larger benchnational securityconstitutional lawpublic interestbailindemnity legislation

Judgment

926
A RAM JETHMALANI, ETC
v.
UNION OF INDIA, ETC.
June 19, 1984
[E.S. VENKATARAMIAH, J.]
Constitution of India_ i950, Article 32. National Security Act, 1980, Sectioh
3 and The Supreme Court Rules 1966, O.rder II rule 6 and Order, VII rule 4 (5). '
Writ petitions assailing detention of de(enu ·.under National Security Act.-.
Vacatio11 Judge hearing petitions-Itnportant questions touching security of nation
and personal /jberty involved-Larger Bench hearing matter-Necessity of.
The petition_ers in their writ petitions to this Court assailed the deten-
tion of a member of the Sikh Community u·nder the National Security Act,
1980.

HELD: 1. These are not ordinary criminal cases involving'a few individuals.
coming from a smalt loca1ity. These a~e extraordinary cases involving serious
questions of great public importance touching the security of the nation as well
D
as personal liberty of a s,izeable section of the community. These cases hitve
to be dealt v.·ith differently from the usual cases which come up before this
Court. [927 C-D]
2. In handling these cases the highest judicial talent and statesmanship
are needed and hence. these cases cannot just be rejected reserving liberty to ·
E the applica·nts to approach a Judicial Magistrate, a Sessions Judge or even the
High Court. Every step taken in these cases should serve as a healing touch
bringing solace .to all concerned and lessening by some degree the ,pain and
suffering through which the country and its peace-loving people have passed
and are passing. These proce~dings should "have the effect of assuaging the
outraged feelings of many who till now may not be aware of.what has actually
happened. [927 F-G]
F 3. The questions involved ·are too large and complex for the
shoulders of a Single Judge to bear. These and other cases of like nature should
be heard by at least seven learned Judges of this Court whose unquestioned
judicial authority, erudition and acumen would be, of great assistance in 'the
restoration of peace in one of the States known for valour, devotion, spirit of
sacrifice and sense of duty towards the country of the people residing in it.
[927 H ; 928 A]
G ,.
4. Even ir' alle°'gations of serious offences against the Stat~ may_ 'be
forthcoming against the arrested ·persons, the Court n1ay stilt consider whether
it is not possible -enlarge at least some of them, who may be in 'a repentant
mood, on bail to facilitate early restoration of normalcy in the State. There
/ ·may be many other things which may be done and they are within the domain
of the Judges, who may .hear these cases. Jf this Court in the end can succetd
H in establishing peace· and ,harmony in ihe country, it would be its finest
!tour. {9280-H ; 929 A[ •
(Cases reffene~ to Larscr Jl~nch.)
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Ii.AM JETH MALANi v. UNION ( Venkataramiah, i.) 921
·ORIGINAL JURISDICTION : Writ Petition (Criminal) Nos. 920 A
and 934 of 1984.
(Under article 32 of the Constitution of India)
P.R. Mri1ul, R.D. Agarwala and R.N. Poddar for the Appli-
cant/Respondent.
Miss 'Rani Jethma/ani, G.S. Cheema and Shailendra Bhardwaj B
for the Opp. side/petitioners.
The 01der of the Court was delivered by
' VENKATARAMIAH, · J; These cases are just two in number.
There may be many other cases of this nature which bave ,not yet
reached this Court but may be filed shortly. These are not ordinary c
criminal cases irtvolving a few individuals . coming from a small
locality. These are extraordinary cases involving serious questions
of great public importance touching the security of the nation as
well as pers'onal liberty of a sizeable section or the community,
many of whom· may have been made to believe by a dominant
section of sopiety, may be wrongly, that what they were doing was D
right and for that reason may not have been free agents. Hence
these cases have to be dealt with differently from the usual cases
which come up before this Court.
First a word of caution. In the course of these proceedings
every word uttered on either side of the Bar should be weighed
before it is used. There is no room for heat and passion ; logic and E
reason alone .should rule the debates. There should be an all round
sympathy in dealing with the complex issues which may arise for
determination. In handling' these cases the highest judicial talen~
and statesmanship are. needed and hence these cases cannot just be
rejected reserving liberty to the applicants to approach a Judicial
F
Magistrate, a Sessions Judge or even the High Court. Every step
taken in these c~ses should serve as a healing touch bringing solace
to all concerned and lessening by some degree the pain and suffer-
ing through which the country and its peace-loving people have
passed and are passing. These proceedings should have the effect
. of assuaging the outraged feelings of1nany who till now may not be G
aware of what has actually happened. Any amount of time spent
by the highest Court of this land on these cases would not go in
vain. There is no. duty more. sacred than this.
I, however, feel that the questions involved are too.large and
complex for the shoulders of. a Single Judge to bear. It is my
humble view that these and other cases of like nature should be
heard by at least seven learned Judges of this Court whose unques-.
tioned judicial authority, erudition and acumen would be of great
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92S SUPi.EME COURT REPOJ.TS \.19\\4) 3 s.C. R..

assistance in the restoration of peace in one of our great States
known for the valour, the devotion, the spirit of sacrifice and the
sense of duty towards the country or' the people residing in it

May I say that th~r¢ can be no compromise on the following
B matters, namely, unity and integrity ·Of India, lhe secular and·
democratic form of the Indian Government arid the suprema~y of
the Indian Constitution ? They must be uppeld in any event. There
cannot be.any doubt abonnhe right of the established Government
to run the administration of the country. We should remember, that
India ·is no doubt a Union of States, but the boundarie,. of the
c States are not unalterable. There is only one citizenship in India
and that all.of us.:. Indian citizens-belong to the whole oflndia
and the whole of India belongs to all of us, Man-made boundaries
, cannot divide us. Language, religion, caste and other factors can·
not be allowed to drive a wedge between one section and another.
Ir is good to 'remembeF here what Abrahaip. Lincoln said though in
D another context in 1858, 'A house divided again~t itself cannot
stand'.· The issue now before . the Court · involves more than the
future of India .. Again to quote Lincoln from what he said in the
American context :

E "It presents to tl'l.e whole family of man, the ~111estion
wnether a· constitutional republic or a democracy-a govern-
. ment of the people, by the same people-can or cannot
maintain its territorial integrity, agai.nst its own domestic
foes''..(')
•
Tue above words appear to be relevant in the present Indian
F conteiot.too. ·

· The unfolding of facU in these cases may make those who
may have erred to realise where they hav; erred and how they have
erred. It may help the Court to suggest solutions for rectilying the
·undesirable effects of such errors, , Even if allegations of serious ·
.G offences against the State may be forthcoming against the arrested
persons, the Court may still consider whether it is not possible to
enlarge at least some of them, who may be in a repentant mood,
on bail to facilitate early restoration of normalcy in the State. The
Court may at some stage have occasion to consider whether it
•
H
(1) (Vide; The first message to the Congress after the fall of Fort Sumter r
during the American civil \Var). ·

•
ll.AM JETHMALANI v. UNION (Venkataramiah, J.) 929
should recommend to Parliament to pass an Act of Indemnity which A
may be an act of great sagacity, thus drawing the curtain on this un·
happy page of the. history of tb!indian Republic. These may be many
other things which may be done and they are within the domain of
my learned Brothers who may hear these cases. - If this Court.in the
end.cah succeed in establishing peace and harmony in the country,
B
it would be its finest hour.
r.
I, therefore, refer these cases to a larger. Bench with the fond
hope that our country would have no occasion .in the future to face
a similar situation.
These papers may be placed before the Hon'ble the Chief C
Justice of India fot appropriate directions.
N.V.K . Cases referred to larger bench.

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