Preventive detention challenge over ignored detainee representation u/s9(f) and undisclosed Central Government appeal right; detention quashed.

The dominant issues were whether preventive detention was vitiated by (i) failure to independently consider the detenue's representation under s.9(f) of the Act read with Art.22(5), and (ii) failure to apprise the detenue of the right to make a representation to the Central Government under the statutory scheme including s.12. The HC held that Government confirmation power is independent of the Advisory Board, so the representation required separate, demonstrable consideration; the confirmation order's text and records showed approval solely on the Board report, hence breach of s.9(f) and Art.22(5), leading to quashing of the confirmation order. The HC further held that non-intimation of the Central Government representation right impaired the detenue's Art.22(5) remedy, also vitiating detention, and consequently quashed both the confirmation order and the detention order.

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1. ISSUES PRESENTED AND CONSIDERED

(i) Whether the confirmation/continuance of preventive detention was vitiated because the appropriate Government failed to independently consider the detenue's representation, as required by Article 22(5) of the Constitution read with Section 9(f) of the Act.

(ii) Whether the confirmation/continuance of preventive detention was vitiated because the detenue was not apprised of his right to make a representation to the Central Government, which is competent to revoke/modify the detention under the Act, thereby impairing the safeguard under Article 22(5).

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Independent consideration of representation by the appropriate Government while confirming detention

Legal framework (as discussed by the Court): The Court examined Section 9(f) of the Act governing confirmation of detention after the Advisory Board's report, and Article 22(5) of the Constitution requiring communication of grounds and affording the earliest opportunity to make a representation, with a corresponding duty to consider it. The Court treated the Government's power under Section 9(f) as discretionary ("may") even when the Advisory Board opines sufficient cause, thereby requiring an independent governmental assessment.

Interpretation and reasoning: The Court held that Section 9(f) makes the Government's confirmation decision independent of the Advisory Board's opinion, and therefore the Government must consider the detenue's representation on its own merits, uninfluenced by the Board. On scrutiny of the confirmation order and the produced proceedings records, the Court found no reference to the representation and no indication that it was perused or examined; the record showed approval of a draft confirmation order based on the Advisory Board's report alone. The Court rejected reliance on authority concerning mere non-compliance with administrative guidelines, distinguishing it because the duty here flowed from the statute and Article 22(5), not from guidelines.

Conclusions: The Court concluded that the appropriate Government failed to independently consider the representation, rendering the confirmation order invalid as violative of Article 22(5) and contrary to the statutory role under Section 9(f). This defect vitiated the confirmation of detention.

Issue (ii): Failure to inform the detenue of the right to make a representation to the Central Government

Legal framework (as discussed by the Court): The Court considered Section 3(2) (requiring reporting of the detention order to the Central Government within a stipulated time), Section 12(1)(b) (Central Government's power to revoke or modify a State detention order), and Article 22(5) (right to make a representation against the detention order). The Court noted that although these provisions do not expressly state that the detenue must be informed of the right to represent to the Central Government, Article 22(5) encompasses representation to any authority competent to revoke detention.

Interpretation and reasoning: The Court reasoned that because the Act confers revocation/modification power on the Central Government, an effective constitutional opportunity to make a representation requires that the detenue be informed of that avenue; otherwise, the safeguard becomes illusory. The Court treated the obligation to inform as inherent in the right to representation, since the detenue is the person primarily affected and can meaningfully seek relief only if made aware of the competent revoking authority. On this basis, the Court held that non-apprising of the right to represent to the Central Government vitiated the confirmation order.

Conclusions: The Court held that the failure to apprise the detenue of the right to make a representation to the Central Government impaired the Article 22(5) safeguard and constituted an additional independent ground to invalidate the confirmation order.

Resulting operative determination (as decided): On both defects, the Court quashed the confirmation/continuance order. Consequentially, the detention order referred to therein was also quashed, and the stated "grounds of detention" document became inconsequential to the continued detention once the confirmation order was set aside.

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