Supreme Court of India
STATE OF U.P.versusHARI SHANKAR TEWARI
- Citation
- 1987 INSC 60
- Decided
- 25 February 1987
- Disposal
- Dismissed
- Bench
- R S PATHAK
Holding
A detention order under the National Security Act is invalid unless the impugned activity threatens public order; in this case, the activity concerned only law and order, so the order was unlawful.
Summary
The State of Uttar Pradesh sought to uphold a detention order issued under Section 3(2) of the National Security Act, 1980 against Hari Shankar Tewari. The Allahabad High Court had quashed the order, relying on the Full Bench decision in Ashok Dixit v. State which held that a solitary assault affecting only specific individuals does not threaten public order, only law and order. On appeal, the Supreme Court examined the distinction between "law and order" and "public order", emphasizing that the test is the degree and potentiality of the act to disturb the community's even tempo of life. Citing a series of precedents, the Court reiterated that an act must have a broader impact on the public to fall within the ambit of public order under the Act. Finding that the alleged activities of the respondent were confined to a law‑and‑order problem and did not jeopardise public order, the Court dismissed the State's appeal, thereby affirming the High Court's quashing of the detention.
Issues considered
- Whether the detention order under Section 3(2) of the National Security Act, 1980 is valid when the alleged activity pertains only to law and order and not public order.
Legislation cited
- National Security Act, 1980s. 3(2)
Subjects
National Security Actpreventive detentionpublic orderlaw and orderSection 3(2)Supreme Court of Indiadetention orderjurisprudence
Judgment
STATE OF U.P.
A v.
HARi SHANKAR TEWARI
FEBRUARY 25, 1987
B [R.S. PATHAK, CJ, RANGANATH MISRA
AND M:M. DUTT, JJ.]
National Security Act, 1980-Section 3(2)-Detention Order-
Assailed in Court-Duty of Court-To find out whether impugned
activities affect 'Public order' or 'law and order'.
c . A Division Bench of the High Court quashed the order of deten-
tion of the respondent, made under Section 3(2) of the National Security
Act, 1980 as had in law, following the earlier Full Bench decision in the
case of Ashok Dixit v. State and others that a solitary assault on one
individual which may well he equaled with ordinary murder can hardly
D be said to disturb public peace of place public order in jeopardy so as to
bring the case within the purview of the Act, that it can·only raise a 'law
and order' problem and no more, and that the act or·incident w_hich
may be attributed to the delenu may he reprehensible and yet if it
concerns only specific individuals and has no impact on the general
members of the community and has no potentiality of disturbing the
E even tempo of life of the people, it cannot he held to be an activity
prejudicial to public order.
In appeal by the State, it was contended that the High Court was
wrong in quashing the detention order.
-
F Dismissing the appeal, this Court,
I
HELD: Conceptually, there is difference between law and order -+. ~
and public order but what in a given situation may be a matter covered
by law and order may really turn out to be one of public order. Facts of
each case have to be looked int.o to ascertain whether a matter relates to
G the larger circle or the smaller circle. An act which may not at all he
objected to in certain situations is capable of totally disturbing the
public tranquillity. When communal tension is high, an indiscreet act of
no significance is likely lo disturb or dislocate the even tempo of the life +
of the community. An order of detention made in such a situation has to
take note of the potentiality of the act objected to. No hard and fast rule
H can really be evolved to deal with problems of human socidy. Every
426
STATE OF U.P. v. H.S. TEWARI [MISRA, J.] 427
possible situation cannot be brought under water-tight classifications
and a set of tests to deal with them cannot be laid down. As and when an A
order of detention is questioned, it is for the court to apply these weU-
known tests to f"md out whether the impugned activities upon which the
order of detention is grounded go under the classification of public
order or belong to the category oflaw and order. [432H; 434D-F]
From the Judgment and Order dated 9.9.1985 of the Allahabad
High Court in H.C.W.P. No. 16272 of 1984.
Yogeshwar Prasad, D. Bhandari and_Vishal Jeet for the Appellant.
R.K. Garg, Mohan Pandey and R.B. Misra for the Respondent. G
The Judgment of the Court was delivered by
RANGANATH MISRA, J. This appeal by special leave is
directed against the order of the Division Bench o.f the Allahabad High
Court by which it has quashed an order of detention of the respondent H
•
428 SUPREME COURT REPORTS [1987] 2 S.C.R.
A made under section 3(2) of the National Security Act (hereinafter
referred to as 'the Act'). The High Court relied upon a decision of a \
Full Bench of that Court in Ashok Di.xii v. State and others disposed of
on 1.8.1985 being Habeas Corpus Petitioh No. !Jl61 of i984. for its
conclusion that the detention of the respondent was bad in law. The
majority opinion of the Full Bench, as far as.relevant said:
B
"A solitary assault on one individual which may well be
equated with ordinary murder can hardly be said to disturb
· public peace or place public order in jeopardy so as to bring
'· the case within the purview of the Act. lt can only raise a
'law and order' problem and no more. Assaulting an indi-
vidual in a bus or train on account of enmity may affect
c only certain individuals; but if the assault is made indis-
criminately in the bus or train and passengers are harassed
' indiscriminately, the same would be likely to endanger
public order as this kind of incident is bound to have such
impact that it will disturb the' even tempo of life of the
D 'community. The act or incident which may be attnbuted to
,the detenu may be reprehensible and yet if it concefl/S only
specific individuals and it has no impact on the general
members of the community and has no potentiality of dis-
turbing the even tempo of life of the people, it cannot be
held to be an activity prejudicial to public order."
E
The Full Bench in its tum referred to several decision~ of this
Court in its attempt to bring out a distinction between the concepts of
Law and order and public order and one of such decisions of this Court ' t---
is the casi; of Pushkar Mukherjee v. State of West Bengal, [1969] 2 SCR
635. This Court said therein:
_F '
"The difference between the concepts of public order and
law and order is similar to the distinction between public
and private crimes in the realm of jurisprudence. In consi-
dering the material elements of crime, the historic tests
which each community applies are intrinsic wrongfulness or
G the social expediency which are the two most important
factors which have lead to ·the designation of certain con-
+-.
duct as criminal. Dr. Allen has distinguished public and
private crimes in the sense that some offences primarily
injure specific persons and only secondarily the public in-
terest, whHe others directly injure the public interest and
H affect i.ndividuals only remotely. (See Dr. Allen's Legal
STATE OF U.P. v. H.S. TEWARI [MISRA, J.] 429
Duties pp.249) There is a broad distinction along these A
lines, the differences naturally arise in the application of
any such test."
It is claimed that these observations of this Court were taken as
the guideline by the Full Bench to ascertain whether the allegations
brought the case within the purview of public order. Learned cousel B
for the appellant has strongly canvassed that the test laid down by Dr.
Allen was not applicable to judge the validity of a detention order and
the High Court has gone wrong in quashing the detention of ,the
respondent.
It has not been disputed at the Bar that public order and law and C
order are two distinct concepts. There is abundance of authority of this
Court drawing the distinction between the two. In the case of Superin-
tendent, Central Prisons, Fatehgarh v. Ram Manohar Lohia, [1960] 2
SCR 821 Subba Rao J., as he th eh was, spoke for the Court thus:
"The expression public order has a very wide connotation. D
Public Order is the basic need in any organised society. It
implies the orderly state of society any community in
which citizens can peacefully pursue their normal acti-
vities of life. In the words of an eminent Judge of the
Supreme Court of America "the essential rights are sub-
ject to the elementary need for order without which the E
guarantee of those rights would be a mockery .... »... It
(public order) is synonymolll! with public peace, safety
and tranquillity."
In Ram Manohar Lohia v. State of Bihar, [1966] 1 SCR 709 F
Hidayatullah, J., as he then was, speaking for the majority view. ·
observed: ,.
"One has to imagine three con'centric circles. The law and
order represents the largest circle within which the next
circle representing public order and the smallest circle G
represents security of State. It is then easy to say that an
act may affect law and order but not public order just as
an act may affect public order but not public order just as
an act may affect public order but not the security of the
State." ..
H
430 SUPREME COURT REPORTS [1987] 2 S.C.R.
A In Sushanta Goswami & Ors., [1969) 3 SCR 138 case, this Court
observed:-
"The contravention of law always affects public order but
before it can be said to affect public order, it must affect.
the community or the public at large. A mere disturbance
B of law and order leading to disorder is not necessarily
sufficient for action under the Act but a disturbance which
will affect public order can alone justify the detention
under that Act."
A Constitution Bench was again called upon to deal with this problem. -~ '"'
C In the case of Ma.dhu Limay v. Sub Divisi6nal Magistrate, Monghyr,
[1971] 2 SCR 742 Hidayatullah, CJ., speaking for the Court observed:-
-~.
"In a judgment, the expression 'in the interest of public
order' in the constitution is capable of taking within "itself
not only those acts which disturb the security of the State or
D act within order puglique, as described but also certain acts
which disturb public tranquillity or are prejudice of the
peace. It is not necessary to give the expression a narrow
meaning because, as has been observed, the expression in
the interest ofpublic order is very wide."
~·.·
E In Kanu Biswas v. State of West Bengal, [1972] 3 SCR 831 this Court
stated:-
"The question whether a man has only committed a breach
of law and order or has acted in a manner likely to cause a ~'
disturbance of the public order, is a question of degree
F and the extent of the reach oft the act upon the society. 4
Public order is, what the French call, is something more
than ordinary maintenance of law and order. The test to
be adopted in determining whether an act affects law and.
order or public order as laid down in the above case Arun
Ghosh v. State of West Bengal, [1970] 3 SCR 288 is: Does
G it lead to disturbances of the current of life of ihe com-
munity so as to amount to a disturbance of public order or ~
does it affect merely an individual leaving the tranquillity .
of society undistu~bed?
In Babu! Mitra v. State of West Bengal, [1973] 1 SCC 393 this court.
H observed:
STATE OF U.P. v. H.S. TEWARI [MISRA, J.] 431
"The distinction betWeen law and order and public order
have been pointed out succinctly in A run Ghosh v. State A
of West Bengal (supra). According to that decision the
true distinction between the areas of law and order and
public order is that one of degree and the extent of the
reach of the act in question upon society. The Court
pointed out that the act by it.self is not determinative of its B
own gravity. In its quality, it may not differ but in its
potentiality it may be very different."
A three-Judge Bench examined the same point ln Kuso Shah v. State
of Bihar, [1974] 2 SCR 195. Referring to the facts, the Court observed:
"These acts may raise problems of law and order but we c
find it impossible to see their impact on public order. The
two concepts have well-defined contours. It being well-
established_that stray and unorganised crimes of theft and
assaults are not matters of public order since they do not
' tend to effect the even flow of public life. Infractions of D
law are bound in some measure to lead to disorder but
every infraction of law does not necessarily result in
public disorder. As observed -in Pushkar Mukherjee v.
State of West Bengal, (supra) the line of demarcation must
be drawn between serious and aggravated forms of dis-
order which directly affect the community or injure the E
public interest and the relatively minor breaches of peace
of purely local significance which primarily injure specific
individuals ang only in a secondary sense, public interest.
·In Dr. Ram Manohar Lohia v. State of Bihar, (supra)
Hidayatullah, J. has expressed this concept picturesquely
+ by saying that one has to imagine three concentric circles:
law and order represents the largest circle within which is
F
the next circle representing public order and the smallest
circle represents the security of the state. Law and order
comprehends disorders of less gravity than those afecting
public order just as public order comprehends disorders of
less gravity than those affecting the security of state." G
.it In Ram Ranjan Chatterjee v. State of West Bengal, [!975] 3 SCR 301
dealing with the same question, this Court stated:
"It may be remembered that qualitatively the acts which
affect law and order are not different from the acts which H
432 SUPREME COURT REPORTS (1987) 2 S.C.R.
affect public order. Irideed a state of peace or orderly
A tranquillity which prevails as a result of the observance or
enforcement of internal laws and regulations by the Gov-
ernment is a feature common to the concepts of law and
order and public order. The distinction between the areas
of law and order and public order, as pointed out by this
B Court in Arnn Ghosh v. State of West Bengal (supra) is one of
degree and extent of the reach of the Act in question on
society. It is the potentiality of the Act to disturb the even
tempo of the life of the community which makes it preju-
dicial to the maintenance of the public order. If the con-
travention in its effect is confined only to a few indivi4uals
directly involved as distinguished from a wide spectrum of
c public it would raise a problem of law and order only.
These concentric concepts of law and order and public
order may have a common epicentre but it is the length,
magnitude and intensity of the terror-wave unleashed by a
particular exception of disorder that helps distinguished it
D as an act affecting public order from that concerning law
and order." ·
In Ashok Kumar v. Delhi Administration, [1982] 2 SCC 403 this Court
re-examined the question and stated:-
E "The true distinction between the areas of public order and
law and order lies not in the nature or quality of the act
but in the degree and extent of its reach upon society. The
distinction between the two concepts of law and order and
public order is a fine one but this does not mean that there
can be no over-lapping. Acts similar in nature but com-
F mitted in different contexts and circumstances might
cause different reactions. In one case it might affect
specific individuals only and therefore touch the problem
of law and order while in another it might affect public
order. The act by itself therefore is not determinative of
its own gravity. It is the potentiality ofJhe act to disturb
G the even tempo of the life of the community which makes
it prejudicial to the maintenance of the public order."
These are sufficient to draw the conclusion that conceptually
there is difference between law and order and public order but what in
a given situation may be a matter covered by law and order may really
H tum out to be one of public order. We may now refer io two cases of
STATE OF U.P. v. KS. TEWARI [MISRA, J.] 433
this Court for that purpose. In Arun Ghosh's case (supra) Chief
A
Justice Hidayatullah stated thus:
"Take the case of assault on girls. A guest at a hotel may
kiss or make advances to half a dozen chamber maids. He
may annoy them and also the management but he does
not cause disturbance of rublic order. He may even have B
a fracas with the friends of one of the girls but even then it
\ would be a case of breach of law and order only. Take
another case of a man who molests women in lonely
places. As a result of his-activities girls going to colleges
and schools are in constant danger and fear. Women go-
ing for their ordinary business are afraid of being waylaid
and assaulted. The activity of this man in its essential
c
quality is not different from the act of the other man. But
in its potentiality and in its effect upon the public tranquil-
lity there is a vast difference. The act of the man who
molests the girls in lonely places causes a disturbance in
the even tempo of living which is the first requirement of D
public order. He disturbs the society and community. His
act makes all the women apprehensive of their owner and
• he can be said to be causing disturbance of public order
and not,merely committing individual action which may
be taken note by the criminal prosecution agencies."
E
Equally useful would be reference to two other cases, Mathew, J. in
S.K. Kedar v. State of West Bengal, [1972] 3 SCC 816 approved the
ratio of the decision referred to above and indicated:-
"The question whether a person has only committed a
''t + breach of law and order or has acted in a manner likely to
cause a disturbance of the public order is one of degree and
F
the extent of the reach of the act upon the society. An act
by itself is not determinative of its own gravity. In its qua-
lity, it may not differ from other but in its potentiality it
may be very different. Similar acts in different contexts
1 affect differently law and order on the one hand and public G
order on the other. It is always a question of degree of the
harm and its effect upon the community. Public order is the
even tempo of the life of the community taking the country
as a whole or even as specified localities. It is the degree of
disturbance and its effect upon the life of the community in
a locality which determines whether the disturbance H
amounts only to a breach of Jaw and order."
"
434 SUPREME COURT REPORTS [1987] 2 S.C.R.
A In Nagendra Nath .Monda/ v. State of West Bengal, [1972] I SCC 498
the Court observed as follows:
"The target of arson, was an educational institution and
particularly the registers and other papers maintained by
it. The object obviously was vandalism, to disrupt its
B
working by burning its records and to create a scare so
that neither the teaching staff nor the pupils would dare
attend it for prosecution of studies. The acts in question
no doubt, would be acts similarly to those committed by a
person who resorts to arson, but in the circumstances,
were acts different in potentiality and therefore, amoun-
c ted to affecting public order."
In the final analysis, therefore, one has to tum to the facts on each
case to ascertain whether the matter relates to the larger circle or the
smaller circle. An act which may not at all be objected to In certain
situations is capable of totally disturbing the public tranquillity. When
D
communal tension is high, an indiscreet act of no significance is likely to
disturb or dislocate the even tempo of the life of the community. An
order of detention made in such a situation has to take note of the
potentiality of the act objected to. No hard and fast rule can really be •
evolved to deal with problems of human society. Every possible situa-
tion cannot be brought under water-tight classifications and a set of
E tests to deal with them cannot be laid down. As and when an order of
detention is questioned, it is for the Court to apply these well-known
tests to find out whether the impugned activities upon which the order
of detention is grounded go under the classification of public order or
belong to the category of law and order. ~-
F
The criticism of learned council for the appellant against the
ratio in Pushkar Mukherjee's,case is perhaps not warranted. We have
pointed out above that the ratio of that decision has been approved in
several later cases. The reference to Dr. Allen's classification was
obviously intended to bring into bold relief the basic distinction. The
G guideline indicated in that judgment in another part falls in line with
the general principles adopted by this Court in several authorities. We
do not, find that the Full Bench of the Allahabad High Court adopted
,any wrong basis to draw the difference between the two concepts.
In our opinion, it is unnecessary to examine the facts of this case
.H to find· out whether the grounds furnished in support of the order of
STATE OF U.P. v. H.S. TEWARI [MISRA, J.] 435
detention related to public order or not. The respondent suffered de- A
tention for a major part of the period covered by the order and was
released when the High Court quashed it. The detention being one of
1984, in normal course, would have lapsed more than eighteen months
back. The appeal fails and is dismissed.
N.P.V. Appeal dismissed. B
t.
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