Preventive detention safeguards require equal hearing and reasoned confirmation; mechanical detention orders and discriminatory Advisory Board procedure are invalid.

Preventive detention under the National Security Act requires a fair and effective opportunity of representation before the Advisory Board; where the State is allowed legally qualified assistance, the detenu must be afforded a comparable facility to avoid hostile discrimination. The Supreme Court's interpretation of these safeguards was treated as binding law under Article 141 and followed. Confirmation of detention under Section 12(1) must rest on a conscious consideration of relevant circumstances existing at the time of confirmation; a mechanical order for the maximum period without proper examination reflects non-application of mind and is inconsistent with constitutional safeguards.

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Issues: (i) Whether the detenu was denied an effective opportunity of representation before the Advisory Board when the State was allowed to appear through legally qualified persons while the detenu was heard without similar assistance; (ii) whether the observations in the Supreme Court decision on legal representation before the Advisory Board constituted binding law under Article 141; (iii) whether confirmation of detention under Section 12(1) of the National Security Act, 1980 for the maximum period without consideration of relevant circumstances amounted to non-application of mind and invalidated the continued detention.

Issue (i): Whether the detenu was denied an effective opportunity of representation before the Advisory Board when the State was allowed to appear through legally qualified persons while the detenu was heard without similar assistance.

Analysis: The right under Article 22(5) requires a real and effective opportunity to make representation against preventive detention. If the detaining authority or the Government is permitted to be assisted before the Advisory Board by a legally qualified person, fairness and equality demand that the detenu must be afforded a comparable facility. The Advisory Board cannot adopt a procedure that results in hostile discrimination between the parties or deprives the detenu of an effective oral or written representation. Section 11(1) of the National Security Act, 1980 was held not to confer any general right on the State to appear and justify detention, but only to enable the Board to call for information needed for its own decision.

Conclusion: The detenu was denied a fair and effective opportunity of representation, and the proceedings before the Advisory Board were vitiated.

Issue (ii): Whether the observations in the Supreme Court decision on legal representation before the Advisory Board constituted binding law under Article 141.

Analysis: The interpretation placed by the Supreme Court on the scope of preventive detention safeguards and the procedure before the Advisory Board was treated as a declaration of law binding on all courts. The distinction between a mere observation and an interpretative holding was rejected. The binding force of Article 141 was read with Article 144, and the Supreme Court's construction of the statutory and constitutional safeguards was treated as enforceable law.

Conclusion: The observations relied upon were treated as binding law and were followed.

Issue (iii): Whether confirmation of detention under Section 12(1) of the National Security Act, 1980 for the maximum period without consideration of relevant circumstances amounted to non-application of mind and invalidated the continued detention.

Analysis: Section 12(1) permits the appropriate Government to confirm detention and continue it only after acting on the Advisory Board's report and considering whether continued detention is necessary. The power is discretionary but must be exercised on relevant considerations existing on the date of confirmation. The record showed only cursory notings and no examination of whether the maximum period was necessary or whether a shorter period would suffice. Such a mechanical confirmation was inconsistent with the statutory scheme and the constitutional safeguards governing preventive detention.

Conclusion: The confirmation order was made mechanically, without application of mind, and the continued detention was invalid.

Final Conclusion: The continued detention in both cases was held unconstitutional and void, and the detenus were directed to be released forthwith if not required in any other case.

Ratio Decidendi: Preventive detention must be sustained by a fair, non-discriminatory procedure and by a conscious, relevant-circumstances-based exercise of statutory discretion; mechanical confirmation or unequal hearing before the Advisory Board invalidates continued detention.

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