2020 (6) TMI 680 - HC - Indian Laws

Court orders immediate release, quashes detention based on unjustified delay in considering representations.

The court held in favor of the petitioner, ruling that the Detaining Authority must promptly consider representations without waiting for the Central ... Detention under COFEPOSA Act, 1974 - right to make representation to the Detaining Authority - Detaining Authority obliged to consider representation expeditiously - no requirement to await Central Advisory Board's opinion before considering representation - undue delay in consideration of representation violates Articles 21 and 22(5) of the Constitution - Kamleshkumar principle regarding obligation to consider representation - prospective overruling not available to a High CourtDetaining Authority obliged to consider representation expeditiously - no requirement to await Central Advisory Board's opinion before considering representation - undue delay in consideration of representation violates Articles 21 and 22(5) of the Constitution - Kamleshkumar principle regarding obligation to consider representation - Whether the Detaining Authority was required to consider the petitioner's representation without waiting for the opinion of the Central Advisory Board and whether the delay in consideration violated the petitioner's constitutional rights. - HELD THAT: - Applying the principles in Ankit Ashok Jalan and earlier Constitution Bench authority in Kamleshkumar, the Court held that a specially empowered Detaining Authority must independently and without awaiting the Central Advisory Board's opinion consider a representation addressed to it. The Supreme Court's analysis (as summarised in Ankit Ashok Jalan) distinguishes cases where the appropriate Government alone considers representations and clarifies that the Detaining Authority's obligation to consider representations is not displaced by a pending reference to the Advisory Board. The Court found no valid explanation for the inaction here between receipt of the representation and its eventual consideration; awaiting the Advisory Board's report did not justify the delay and therefore amounted to violation of the detenue's rights under Articles 21 and 22(5). Consequently, the detention was held to be illegal and unconstitutional on that ground. The Court declined to entertain the plea that the Supreme Court's ruling should operate only prospectively, noting that the question of prospective overruling is for the Supreme Court and not for the High Court. [Paras 17, 18, 19, 20]Detaining Authority ought to have expeditiously considered the representation without awaiting the Central Advisory Board; delay violated Articles 21 and 22(5) and rendered the detention illegal.Final Conclusion: Writ petition allowed; Detention Order dated 21st February, 2018 quashed and the detenue directed to be set at liberty forthwith. Issues Involved:1. Delay in considering the petitioner’s representation.2. Violation of fundamental rights under Articles 21 and 22(5) of the Constitution.3. Applicability of Supreme Court judgments, particularly Ankit Ashok Jalan v. Union of India.4. Respondents’ plea of Prospective Overruling.Issue-wise Detailed Analysis:1. Delay in considering the petitioner’s representation:The petitioner challenged the Detention Order dated 21st February 2018, citing a delay of 43 days by the Detaining Authority in deciding his representation. The petitioner argued that this delay violated his fundamental rights. The Detention Order was served on 15th October 2019, and the petitioner made a representation on 5th November 2019. However, the Detaining Authority only considered and rejected the representation on 18th December 2019. The petitioner relied on the Supreme Court judgment in Ankit Ashok Jalan v. Union of India, which held that the Detaining Authority must consider the representation without waiting for the opinion of the Central Advisory Board.2. Violation of fundamental rights under Articles 21 and 22(5) of the Constitution:The petitioner argued that the delay violated his rights under Articles 21 and 22(5) of the Constitution. The Supreme Court in Ankit Ashok Jalan emphasized that any delay in considering the representation of a detenue without valid reasons is unconstitutional. The Detaining Authority's failure to expeditiously consider the representation resulted in a violation of the petitioner’s constitutional rights.3. Applicability of Supreme Court judgments, particularly Ankit Ashok Jalan v. Union of India:The petitioner relied on the Supreme Court judgment in Ankit Ashok Jalan, where it was held that the Detaining Authority must independently consider the representation without awaiting the Central Advisory Board's opinion. The respondents argued that they followed the principles laid down in Golam Biswas v. Union of India, which allowed waiting for the Advisory Board's report. However, the court found that Golam Biswas dealt with representations to the appropriate Government, not the Detaining Authority. The court concluded that the principles in Ankit Ashok Jalan applied, and the Detaining Authority should have considered the representation independently.4. Respondents’ plea of Prospective Overruling:The respondents argued that the principles laid down in Ankit Ashok Jalan should be applied prospectively. They cited I.C. Golaknath v. State of Punjab and Baburam v. C.C. Jacob to support their argument. However, the petitioner refuted this, stating that the plea of Prospective Overruling could only be considered by the Supreme Court. The court agreed with the petitioner, citing Sarwan Kumar v. Madan Lal Aggarwal, which held that High Courts are not competent to adjudicate on Prospective Overruling.Findings:The court held that the Detaining Authority was obliged to expeditiously consider the petitioner’s representation without waiting for the Central Advisory Board's opinion. The delay from 6th November 2019 to 18th December 2019 was deemed unjustified, violating the petitioner’s constitutional rights. The case was found to be squarely covered by the principles laid down in Ankit Ashok Jalan.Conclusion:The petition was allowed, the Detention Order dated 21st February 2018 was quashed, and the detenue was directed to be set at liberty forthwith. The court appreciated the assistance rendered by the learned counsels, who provided brief notes of submissions and video clips of their oral arguments, facilitating the court's decision-making process.