1969 (1) TMI 73 - SC - Indian Laws

Detention orders ruled illegal for lack of representation consideration, violating Article 22(5) safeguards. Petitioners granted release.

The court found the detention orders against the petitioners illegal and ultra vires due to the State Government's failure to consider their ... Preventive detention - right of representation under Article 22(5) of the Constitution - duty of the appropriate Government to consider representations - Advisory Board - mandatory procedural safeguards for preventive detention - revocation under section 13 of the Preventive Detention ActRight of representation under Article 22(5) of the Constitution - duty of the appropriate Government to consider representations - mandatory procedural safeguards for preventive detention - The constitutional scope and effect of Article 22(5) with respect to the obligation of the appropriate Government to consider a detenu's representation before taking further action. - HELD THAT: - Article 22(5) guarantees a detained person the right to be informed of the grounds of detention and to make a representation. Though the clause does not specify the precise manner of disposal, the Court held that it necessarily implies a duty on the authority to whom the representation is made to apply its mind to and properly consider that representation expeditiously. The constitution of an Advisory Board under the Preventive Detention Act does not relieve the appropriate Government of this obligation. The Advisory Board's later inquiry is a separate process and cannot substitute for the Executive's own consideration of representations. The Court rejected the contention that where reference to the Advisory Board is contemplated the State Government may refrain from considering the representation; such a position would render Article 22(5) illusory. The existence of powers of revocation (including under section 13 of the Act) reinforces that the Government must be able to take prompt remedial action if consideration of the representation so requires. Consequently, the procedural protections in Article 22 are mandatory, and failure to comply with them vitiates detention orders.Article 22(5) includes a constitutional obligation on the appropriate Government to consider representations of detenus promptly and on the merits; this duty is distinct from and antecedent to any reference to an Advisory Board.Preventive detention - Advisory Board - revocation under section 13 of the Preventive Detention Act - mandatory procedural safeguards for preventive detention - Application of the principle to the detention orders in the present petitions and the consequent validity of those orders. - HELD THAT: - The petitioners alleged, and the respondent ultimately did not controvert on the material before the Court, that the State Government forwarded the representations to the Advisory Board without considering them. Given the Court's finding as to the mandatory character of the obligation to consider representations under Article 22(5), non-consideration constituted failure to comply with mandatory procedural safeguards. Preventive detention being a grave invasion of personal liberty, any omission of a required procedural step renders the detention illegal. Accordingly, the detention orders and the confirmations based thereon, in cases where representations were not considered, could not stand.The detention orders (and their confirmations) made in the cases where the State Government did not consider the detenu's representations were illegal and ultra vires, entitling the affected petitioners to release.Final Conclusion: The Court held that Article 22(5) requires the appropriate Government to consider detenus' representations promptly and on the merits; because the State Government forwarded representations to the Advisory Board without such consideration, the detention orders at issue (and their confirmations) were illegal and the petitioners concerned were ordered released. Issues Involved:1. Legality of the detention orders under the Preventive Detention Act, 1950.2. Requirement for the State Government to consider representations made by detainees before forwarding them to the Advisory Board.3. Compliance with procedural safeguards under Article 22(5) of the Constitution.Detailed Analysis:1. Legality of the Detention Orders under the Preventive Detention Act, 1950The petitioners sought a writ of habeas corpus for their release from detention under orders passed under Section 3(2) of the Preventive Detention Act, 1950. The detention orders were issued by the District Magistrate of Hooghly, citing the necessity to prevent actions prejudicial to the maintenance of essential supplies and services. The grounds for detention included specific instances of unauthorized transportation of rice, which were communicated to the detainees. The Advisory Board later confirmed the detention orders, and the Governor of West Bengal upheld them under Section 11(1) of the Act.2. Requirement for the State Government to Consider RepresentationsThe core argument presented by the petitioners was that their representations were not considered by the State Government before being forwarded to the Advisory Board. The respondent's counter-affidavits were vague and did not categorically deny this allegation. The court emphasized that Article 22(5) of the Constitution implicitly requires the State Government to consider detainees' representations as expeditiously as possible. The constitution of an Advisory Board does not absolve the State Government from this legal obligation. The court held that the right to make a representation includes the right to have it properly considered by the authority to whom it is made.3. Compliance with Procedural Safeguards under Article 22(5) of the ConstitutionThe court underscored that Article 22(5) guarantees detainees the right to be informed of the grounds of detention and to make a representation against it. This right is independent of the duration of detention and the existence of an Advisory Board. The State Government must consider the representation promptly and take appropriate action. The failure to do so renders the detention order illegal. The court rejected the respondent's argument that the State Government need not consider the representation if a reference is to be made to the Advisory Board.ConclusionThe court concluded that the detention orders against the petitioners, including Sk. Abdul Karim, Nirmal Chandra Jana, Sk. Ibrahim, and Nur Mohd., were illegal and ultra vires due to the State Government's failure to consider their representations before forwarding them to the Advisory Board. The procedural safeguards under Article 22(5) were mandatory, and non-compliance rendered the detention orders invalid. Consequently, the petitioners were entitled to be released. The petition was allowed.