Preventive detention and Article 22(5) rights: non-supply of relied upon electronic materials vitiated the detention order.

Non-supply of relied upon electronic materials, including screenshots and WhatsApp-related content forming part of the detention basis, violated the detenu's right to an effective representation under Article 22(5) and vitiated the preventive detention order. The Court held that disclosure for detention is not enough unless the materials relied on are furnished in a usable form when requested, and the challenge succeeded on that ground. The change in the Advisory Board's composition after retirement of judges did not invalidate the reference because the Board remained duly constituted and no prejudice was shown. Objections based on bail circumstances and the sponsoring authority's stand were also rejected because preventive detention rests on independent subjective satisfaction.

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Issues: (i) Whether the detention order was vitiated by non-supply of relied upon electronic materials and other requested documents, thereby denying an effective representation under Article 22(5) of the Constitution of India; (ii) Whether the detention was invalid because the Advisory Board that answered the reference was differently constituted from the Board notified earlier; (iii) Whether the circumstances surrounding bail and the sponsoring authority's stand undermined the detention.

Issue (i): Whether the detention order was vitiated by non-supply of relied upon electronic materials and other requested documents, thereby denying an effective representation under Article 22(5) of the Constitution of India.

Analysis: The detention order referred to electronic materials such as screenshots and WhatsApp-related contents as part of the basis for the subjective satisfaction. A specific request was made for those materials in a form that would enable an effective representation, but they were not furnished. The right to make a representation under Article 22(5) carries with it the duty to supply the materials relied upon for detention, and the sufficiency of disclosure for detention is not the same as the sufficiency required for an effective representation. Since the requested materials formed part of the relied upon basis, their non-supply impaired the detenus' constitutional right.

Conclusion: The detention order was vitiated on account of non-supply of relied upon materials, and the challenge succeeded on this issue.

Issue (ii): Whether the detention was invalid because the Advisory Board that answered the reference was differently constituted from the Board notified earlier.

Analysis: The statutory and constitutional requirement is a reference to a duly constituted Advisory Board. The change in composition occurred due to retirement of judges after the notification, and no member of the Board that heard the matter was shown to be unqualified or incompetent. The Board was treated as duly constituted, and no actual prejudice to the detenus was shown.

Conclusion: The challenge to the constitution of the Advisory Board was rejected.

Issue (iii): Whether the circumstances surrounding bail and the sponsoring authority's stand undermined the detention.

Analysis: The role of the sponsoring authority and the detaining authority is distinct. Preventive detention is based on independent subjective satisfaction and the likelihood of future prejudicial activity, and it is not controlled by the stand taken at the bail stage. The facts relating to bail and the non-opposition thereto did not negate the detention.

Conclusion: This challenge was rejected.

Final Conclusion: The detention orders could not be sustained because the detenus were denied the materials necessary for an effective constitutional representation, and they were directed to be released.

Ratio Decidendi: Where relied upon materials form the basis of a preventive detention order, failure to furnish those materials in a usable form on demand violates Article 22(5) and vitiates the detention.

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