Freedom at Midnight on January 26, 1950

Brahmeshwar Prasad was a school teacher and an active member of the Communist Party of India. It was alleged that this party had adopted a top-secret program to overthrow the Government of India through violence. There was information that Communist cells functioning in Bihar had received secret directions to build up stocks of firearms, ammunition and explosives on a large scale. There was a plan of breaking jails with an eventual goal of bringing up a complete collapse of the government. They were also planning to sabotage important industrial and other installations.

In this background, Prasad was arrested on March 3, 1949, and a detention order was passed against him under a 1947 enactment made in Bihar. This was declared ultra vires and was replaced by an ordinance under which a fresh detention order was passed. This ordinance was also declared ultra vires and then replaced by another ordinance which ultimately became the Bihar Maintenance of Public Order Act, 1949 that came into effect on January 4, 1950, just three weeks before our Constitution came into force. This Act was to remain in force for two years. However, it contained several provisions that were contrary to Article 22 of the Constitution and the law would, therefore, become void from January 26, 1950, in view Article 13(1).

The Preventive Detention (Extension of Duration) Order, 1950 was issued on January 26, 1950 and signed by the President of India, Shri Rajendra Prasad, on his first day in office. Article 372(1) enabled the continuation of all laws in force in the territory of India immediately before the commencement of the Constitution and under Article 372(2), the President could pass orders for the adaptation or modification of any existing law. Thus, the extension order stipulated that if there was any preventive detention law before the Constitution came into force, a person could be detained for a period of more than three months without obtaining the opinion of the Advisory Board as required by Article 22(4)(a).

In a remarkable judgment, the Patna High Court quashed the detention order in Brahmeshwar Prasad v. State of Bihar, AIR 1950 Pat 265. The court pointed out that Article 367 of the Constitution made the General Clauses Act, 1987 applicable to the interpretation of the Constitution. Section 5(3) of this Act reads:

“(3) Unless the contrary is expressed, a [Central Act] or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.”

The Constitution came into operation immediately on the expiry of January 25, 1950, which was the preceding day. At the stroke of the midnight, therefore, Article 22 came into force and the Bihar Act, passed on January 4, 1950, being inconsistent with Article 22 became void, as a result of Article 13(1).

It was argued that the President of India had signed the extension order on the same day i.e. January 26 and, therefore, the detention stood extended. But, Chief Justice Meredith and Justice Sarjoo Prasad rejected this plea. The Bench referred to Article 60 which stipulates that every President shall, before entering upon his office, must make and subscribe in the presence of Chief Justice of India an oath swearing to preserve, protect and defend the Constitution. President Rajendra Prasad took this oath and became President only after 10.15 am on January 26. Therefore, he “entered” upon his office only after 10.15 am and any order passed in his name would take effect only from that time. On the other hand, the Bihar Act had become void as soon as the Constitution came into force and immediately on the expiration of January 25. Therefore, by 10.30 am, when Babu Rajendra Prasad became President of India, the Bihar Act had already become void! The High Court held that it would not be open to the President to extend detention orders that were passed under an Act which had ceased to exist directly after the midnight of January 25.

It is equally noteworthy that the Chief Justice refused to be impressed by serious allegations against the schoolteacher. The Bench observed that while the allegations were grave and would justify detention, the fact remained that the 1950 Act had become void and the schoolteacher was, therefore set free. The judgment deserves to be read carefully for its analysis of provisions of a newly formed Constitution. One wonders how many other detenus received the benefit of this remarkable ruling and got freedom on the midnight of January 25.

Arvind Datar is a Senior Advocate.