Surjeet Singh & ANR Vs. Union of
India & Ors [1981] INSC 66 (12 March 1981)
KOSHAL, A.D.
KOSHAL, A.D.
ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1153 1981 SCR (3) 205 1981
SCC (2) 359 1981 SCALE (1)826
CITATOR INFO :
R 1990 SC 605 (5)
ACT:
Whether service on the detenu, whose mother
tongue is Hindi of the grounds of detention in English, a language not
understood by him, vitiates the detention-Grounds of detention explained to the
detenu in Hindi by the Serving Officer-Not enough-Grounds must be supplied in
Hindi.
HEADNOTE:
Allowing the petitions, the Court
HELD: The supply to the detenus of the
grounds of detention in the English language with which they were not
conversant could not be considered to be effective communication to them so as
to afford to them a real opportunity of making a representation against the
order of detention. Their detention is repugnant to the provisions of Article
22 (5) of the Constitution. The complicated nature or the length of the
document, is not a sine qua non for the fulfilment of the requirement that the
grounds must be supplied to the detenu in a language which he understood before
the service on him of such grounds could be considered a communication thereof
to him. [206C-D, 208E-G] Harikisan v. The State of Maharashtra & Ors.
[1962] Suppl. 2 SCR 918; Habibandhu Das v. District Magistrate, Cuttack and
Anr, [1969] 1 SCR 227; Nainmal Pratap Mal Shah v. Union of India and Ors.
[1980] 4 S.C.C. 427, followed.
ORIGINAL JURISDICTION: Writ Petition Nos.
5931 and 5932 of 1980.
(Under Article 32 of the Constitution.) N. M.
Ghatate and S. V. Deshpande for the Petitioners.
M. K. Banerjee Addl. Sol. Genl., R. N. Poddar
and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by
KOSHAL, J. By this order we shall dispose of Criminal Writ Petitions Nos. 5931
and 5932 of 1980 in each of which the contention raised by the learned counsel
for the petitioners is the same.
2. In Criminal Writ Petition No. 5931 of
1980, the petitioner is one Surjeet Singh while the other petition has been
filed by a person named Kulwant Singh.
3. Each of the petitioners was detained on
the 13th October, 1980 under the provisions of the National Security Ordinance
which now stands replaced by the National Security Act. They were arrested on
that date and on each of them a police officer served an order of detention
along with the grounds on which it was based, both the documents being in
English. It is the case of the State and the same has not been controverted
before us, that the police officer effecting the service of the two documents
explained to the concerned detenu in Hindi what their contents were.
4. Dr. N. M. Ghatate, learned counsel for the
petitioners has challenged the detention of the two petitioners with the
contention that English was not a language which either of them understood,
that this factor rendered it necessary for the grounds of detention to be
served on them in Hindi which was their mother-tongue and that the same having
not been done, there was in law no communication of such grounds to either of
them.
5. After hearing learned counsel for the
parties, we have no hesitation in holding that the challenge to the detention
is well-founded in view of the dicta of this Court in Harikisan v. The State of
Madarashtra & Others, Hadibandhu Das v. District Magistrate, Cuttak &
Anr., and Nainmal Partap Mal Shah v. Union of India and Others.
In the first of these cases an order under
the Preventive Detention Act (Central Act IV of 1950) was under challenge. The
grounds of detention had been provided to the detenu in English and a request
by him for a translation of the same was turned down. The High Court was of the
opinion that so long as English continued to be the official language of the
State, the communication of the grounds of detention in that language was
enough compliance with the requirements of the Constitution. This opinion did
not find favour with Sinha, C.J., who delivered the judgment of this Court and
observed:
If the detained person is conversant with the
English language, he will naturally be in a position to understand the gravamen
of the charge against him and the facts and circumstances on which the order of
detention is based. But to a 207 person who is not so conversant with the English
language, in order to satisfy the requirements of the Constitution, the detenu
must be given the grounds in a language which he can understand, and in a
script which he can read, if he is a literate person.
The Constitution has guaranteed freedom of
movement throughout the territory of India and has laid down detailed rules as
to arrest and detention. It has also, by way of limitations upon the freedom of
personal liberty, recognised the right of the State to legislate for preventive
detention, subject to certain safeguards in favour of the detained person, as
laid down in clauses (4) and (5) of article 22. One of those safeguards is that
the detained person has the right to be communicated the grounds on which the
order of detention has been made against him, in order that he may be able to
make the representation against the order of detention. In our opinion, in the
circumstances of this case, it has not been shown that the appellant had the
opportunity, which the law contemplates in his favour, of making an effective
representation against his detention. On this ground alone we declare his
detention illegal, and set aside the order of the High Court and the Order of
Detention passed against him." In Hadibandhu's case (supra) also an order
under the Preventive Detention Act was impugned with the contention that the
grounds of detention had not been supplied to the detenu in the language and
script which he understood. The order was struck down by this Court for the
reasons appearing in the following passage :
"The grounds in support of the order
served on the appellant ran into fourteen typed pages and referred to his
activities over a period of thirteen years, beside referring to a large number
of court proceedings concerning him and other persons who were alleged to be
his associates. Mere oral explanation of a complicated order of the nature made
against the appellant without supplying him the translation in script and
language which he understood would, in our judgment amount to denial of the
right of being communicated the grounds and of being afforded the opportunity
of making a representation against the order." 208 In Nainmal's case,
Fazal Ali, J., who followed Hadibandhu's case, held that the communication of
the grounds of detention in a language understood by the detenu was an
essential requirement for the validity of a detention order which, in the
absence of such requirement being fulfilled, would be repugnant to the
provisions of article 22(5) of the Constitution and would thus stand vitiated.
And that is a view which has been consistently held by this Court.
6. The facts with which we are here
concerned, in so far as they are relevant to the decision of the point
canvassed before us, are on all fours with those of the three cases cited
above. As already pointed out, the grounds of detention were supplied to the
two petitioners in the English language-a language with which they were not
conversant. The service of the grounds on them in that manner could not be
considered under the circumstances to be effective communication to them
thereof so as to afford to them a real opportunity of making a representation
against the order of detention.
7. It is true, as pointed out by the learned
Additional Solicitor General, that in Hadibandhu's case (supra) the grounds of
detention covered numerous pages and related to a long period of time and,
according to this Court, contained "a complicated order". The
complicated nature or the length of the document, however, was only mentioned
incidentally by this Court and was not meant to be a sine qua non for the fulfillment
of the requirement that the grounds must be supplied to the detenu in a
language which he understood before the service on him of such grounds could be
considered a communication thereof to him for the purposes of the Preventive
Detention Act.
8. In the result both the petitions succeed
and are accepted. The detention of each of the petitioners is held to be
repugnant to the provisions of article 22(5) of the Constitution and is struck
down on that account. Both of them are directed to be set at liberty forthwith,
in so far as these petitions are concerned.
V.D.K. Petitions allowed.
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